Pope v. Taylor, No. 23-2894 (7th Cir. 2024)

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In 1996, Robert Pope was convicted of murder and sentenced to life imprisonment. He sought post-conviction relief, but his lawyer, Michael J. Backes, abandoned him and failed to take necessary steps to protect Pope's rights. After 14 months of inaction, Pope sought help from Wisconsin's public defender, who informed him that he first needed an extension from the court of appeals. However, the court of appeals denied his request, stating that he had waited too long. Pope then sought relief from the trial court, which also denied his request due to the appellate decision. Despite multiple attempts to reinstate his appeal rights, all were unsuccessful until 2016 when the state acknowledged his right to an appeal.

The state court of appeals and the Supreme Court of Wisconsin reversed a 2017 decision granting Pope a new trial due to the absence of a trial transcript, which was not ordered by his lawyer and was later destroyed. The Supreme Court of Wisconsin held that a new trial based on the absence of a transcript is only appropriate if the defendant first makes a "facially valid claim of arguably prejudicial error" that requires a transcript to substantiate. Pope, not being a lawyer and barely remembering the events of 1996, was unable to do so.

In the United States Court of Appeals for the Seventh Circuit, Pope filed a petition for collateral review under 28 U.S.C. §2254. The district court issued a conditional writ and directed the state to release Pope unless it set a retrial in motion within six months. The state appealed, leading to a deferral of the deadline. The Court of Appeals affirmed the district court's decision, modifying it to include deadlines for Pope's release on bail and unconditional release if a trial does not start within the specified timeframes. The court noted that Pope had suffered at least two violations of his constitutional rights: the right to assistance of counsel and the right to an appeal equivalent to that available to well-heeled litigants.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2894 ROBERT J. POPE, Petitioner-Appellee, v. JE’LESLIE TAYLOR, Interim Warden, Racine Correctional Institution, Respondent-Appellant. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 21-cv-0346-bhl — Brett H. Ludwig, Judge. ____________________ ARGUED APRIL 9, 2024 — DECIDED MAY 6, 2024 ____________________ Before EASTERBROOK, ROVNER, and JACKSON-AKIWUMI, Circuit Judges. EASTERBROOK, Circuit Judge. In 1996 Robert Pope was convicted of murder and sentenced to life imprisonment. He lled out a form directing his lawyer to seek post-conviction relief. (Wisconsin combines a direct appeal with collateral review. See Wis. Stat. §974.02; Page v. Frank, 343 F.3d 901, 905– 06 (7th Cir. 2003).) But his lawyer, Michael J. Backes, 2 No. 23-2894 abandoned him and did not take any of the steps necessary to protect Pope’s rights. Backes has been reprimanded for abandoning at least four other criminal defendants yet remains in good standing at Wisconsin’s bar. After nothing happened for about 14 months, Pope sought aid from Wisconsin’s public defender, who replied that Pope rst needed an extension from the court of appeals—which turned him down on the ground that he had waited too long. See State v. Pope, 2019 WI 106 ¶11 (Dec. 17, 2019) (recounting the 1997 decision). The court of appeals found that Pope had forfeited his appellate rights by not doing himself what the lawyer was supposed to do for him. Pope then asked the trial court for relief; it said no, given the appellate decision. “Since 1997 Pope has made multiple abempts to reinstate his appeal rights.” Id. at ¶12. All were unsuccessful until 2016, when the state acknowledged that Pope is entitled to an appeal and the circuit court entered an order to that e ect. The new-appeal order did not do Pope any good, however, because Wisconsin requires court reporters to keep their notes for only ten years. Wis. S. Ct. R. 72.01(47). Backes failed to order a trial transcript in 1996, and the state’s judiciary rejected Pope’s request for one in 1997. (Technically, Pope led a “statement on transcript”, which the court of appeals treated as a request for a transcript at public expense. That request was denied. Pope then did not order a transcript on his own account, as he lacked the funds.) The notes were destroyed. In 2017 a state judge held that, given the absence of the transcript that Pope’s current lawyers say they need to formulate a claim of error, and the inability to reconstruct a transcript (a nding that the state does not contest in this court), Pope is entitled to a new trial. That decision was reversed by the court of No. 23-2894 3 appeals, and the Supreme Court of Wisconsin a rmed the appellate decision. The court held that, as a maber of Wisconsin law, a new trial based on the absence of a transcript is appropriate only if the defendant rst makes a “facially valid claim of arguably prejudicial error” that requires a transcript to substantiate. 2019 WI 106 ¶23 (underlining in original). Pope cannot do so—he isn’t a lawyer and scarcely remembers the events of 1996. The court wrote that Pope has only himself to blame, because he did not order a transcript during the ten years after his trial. Id. at ¶¶ 44–45. In laying the onus on Pope, the court disregarded its own recognition that he had tried to get his appeal under way in 1996, that his lawyer had not taken the necessary steps, that Pope sought to get things moving in 1997, and that the state’s judiciary then denied his request for a transcript at public expense. In other words, the Supreme Court of Wisconsin held it against Pope that he had not personally undertaken steps that he had delegated to counsel— and then ignored the fact that, when Pope did seek a transcript, the state judiciary turned him down. Having exhausted all avenues of relief in state court, Pope led a petition for collateral review under 28 U.S.C. §2254. The district court issued a conditional writ and directed the state to release Pope unless within six months it set a retrial in motion. 2023 U.S. Dist. LEXIS 155652 (E.D. Wis. Sept. 1, 2023). The state led an appeal, which led the district judge to defer that deadline. 2024 U.S. Dist. LEXIS 32043 (E.D. Wis. Feb. 26, 2024). It is now almost 28 years since Pope was sentenced to life in prison, and he has yet to enjoy an appeal. He has su ered at least two violations of his constitutional rights: the right to 4 No. 23-2894 assistance of counsel, see Roe v. Flores-Ortega, 528 U.S. 470 (2000) (failure to pursue an appeal requested by a client is treated as ine ective assistance without the need to show prejudice), and the right to an appeal equivalent to that available to well-heeled litigants, see Gri n v. Illinois, 351 U.S. 12 (1956). (A solvent litigant could have purchased a transcript in 1997.) When a state violates a criminal defendant’s constitutional rights, it must set aside the conviction unless it nds, beyond a reasonable doubt, that the violation was harmless. See Chapman v. California, 386 U.S. 18 (1967). Yet Wisconsin’s judiciary has never found that the errors were harmless beyond a reasonable doubt. Instead it has placed multiple burdens on Pope—a burden to take over the tasks that his faithless lawyer should have performed and a burden to show arguable issues that a transcript might illuminate. That is a long way from the approach required by Chapman. Both judicial and executive branches of Wisconsin have assumed that the appeal o ered to Pope in 2016 is a complete remedy for the constitutional violations. The state’s Supreme Court treated all ensuing issues as mabers of state law. Thus it surrendered the bene t of deference under 28 U.S.C. §2254(d). In this court, the state’s Aborney General has argued that an independent and adequate state ground (the need to show a “facially valid claim of arguably prejudicial error”) blocks federal collateral review. That ground is independent but not adequate. The problem is easy to see. Wisconsin insists that o ering a criminal defendant an appeal, 20 years late, without a transcript, is a constitutionally adequate substitute for a timely appeal with a lawyer and a transcript. To state the position is to show the fallacy. No sane person would accept one No. 23-2894 5 in lieu of the other. Wisconsin might as well have told Pope that he was welcome to an appeal, but only if he submibed his brief in Punic. Carter v. Buesgen, 10 F.4th 715 (7th Cir. 2021), holds that a four-year delay in resolving a criminal defendant’s appeal makes state procedures “ine ective to protect the rights of the applicant” (28 U.S.C. §2254(b)(1)(B)(ii)) and authorizes a federal court to resolve an application for collateral review. Our decision in Carter expressed incredulity at Wisconsin’s defense of a four-year delay in gebing an initial appeal on track for resolution. 10 F.4th at 723–24. What words, then, su ce for a 28-year delay? Almost eight years have passed since Pope’s right to an appeal was reinstated, but that entitlement has been illusory. Wisconsin’s treatment of Pope is a travesty of justice. In September 2023 the district court gave Wisconsin six months to vacate Pope’s conviction and begin the process of retrial. That time has passed. The state does not get another six months from our decision. It should have been preparing for a trial to follow on the heels of our decision—if a fair trial is possible so long after the events of 1995. (Indeed, prosecutors should have begun preparing in 2017, when the state’s circuit court held that Pope is entitled to another trial.) Pope must be released on bail unless that trial begins within two months—and, if the trial has not started in three months, the conviction must be vacated and Pope released unconditionally. The district court’s decision is modi ed to include these deadlines and, as so modi ed, is AFFIRMED.

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