charge of first degree reckless homicide was voluntary as required by due process given the circumstances of the case where his only other option was to proceed to trial in two days with a lawyer who hadn't done nothing over the last two months to prepare for trial on a charge of first degree intentional homicide with a mandatory life sentence now if this is a bit easier than well it might not appear that way under the briefs but it's a bit easier than most k v s cases because the state court did not rule on the merits of this particular issue accordingly the usual deference provided to the state court would not apply here that's the usual deference under twenty to fifty four so d i do have to admit that there is a small amount of deference that probably should be granted to the court of appeals decision at one point they indicate that the prosecutor did not promise that the case would go to trial on a first degree reckless homicide  rather he only indicated that was intent well let's start with that with that issue generally under good one under brady under borden character if a prosecutor increases the charge for purposes of trial that's fine that may be a but for cause and encouragement for the defendant to plead guilty but it is not improper under normal circumstances  this case we do not have a normal circumstance because two months prior to the trial the prosecutor got up and when asked by the judge specifically said this that is the first degree reckless homicide charge is what we are going to be going to trial with process or the judge responded that's important because i understand that sometimes prosecutors increased the charges and i want to make sure that doesn't happen here so  this case the judge i got to say who thought that the prosecution would walk in the day of trial and say we'd like to raise the church from reckless to intentional would probably be trouble most trial judges who would assume if the judge here i didn't see any indication that he would found this acceptable he said we'll talk about it later and then that conversation never took place because mr morris decided to plead guilty but when you're talking about voluntary in this and the plea the question is what mr morris knew at the time what mr morris knew at the time was it that this prosecutor was reneging on his promise what mr morris knew at the time was that the prosecutor stated immediately after his lawyer said that he wasn't ready for trial he was and prepared for trial the judge said we'll do trial in two days the prosecutor said this case is going to trial on first intentional now after that i and i understand that there was the interchange that at the court is referring to that we'll discuss that later but the fact is that mr backus the trial attorney made no effort to object but that was a violation of the promise made no indication on the on the record the court made no indication on the record that that was was inaccurate so mr morris was left at the time to believe that when the prosecutor says this will go to trial on a first degree intentional charge that that's what it's going to go to trial i would bid with his or factual record on that point the factual record on that point of mind is i believe in the one seventy four a six motion which is the state circuit court post conviction motion i believe i can't recall exactly whether there's something in there but i know  the judge only granting a two day extension that he would have insisted on his run his right to a trial that of course was never there was never a hearing on that because the state court is not an independent adequate state law ground so this is something that as i believe i indicated and my my brief that if there are issues regarding these kind of things that were presented to the circuit court but were never decided because we were denied a hearing this is something that would be appropriate for re man for hearing in the in the district court and i understand that there are there are cases where you can't do that if you're if you're looking at just whether  under age twenty to fifty four d d type thing whether the decision was contrary to or an unreasonable application of controlling supreme court precedent you have to rely strictly on what the record is since in state court at the time who was with you one of the thing that is troubling to me is as the state courts pointed out innocence whether mr morris was coerced is goes to his own state of mind and counsel for direct appeal went through all of that without ever trying to withdraw his guilty plea or clean coercion right i believe it's correct and according to the record as it exists he never told his is a  if i may dress that policeman in the first time whether anything was race prior to send saying that is not in any sense a waiver under wisconsin law it's not in the briefs because it wasn't raised but in under wisconsin law just makes the difference between whether you have a fair and just standard for moving to a drop plea or whether you have to show to be that the plea was not knowing voluntary and intelligent so that's not a waiver on direct appeal that is the the no merit appeal and that's the ground that the court of appeals actually relied on in this case to hold that we have procedurally defaulted that claim and that procedural default argument is what the respondent has now agreed is not an independent and adequate state law ground because it was applying a new rule of procedure retroactively to mr morris so we have that and at that point we came in we were appointed by the district court and we raised these issues at that that but the court raised the other issue of well isn't it important that the defendant didn't tell his lawyer as to the circuit court found didn't tell his lawyer that he felt coerced and i think in other it addition to that is the fact that at the police hearing when asked whether or not he was forced to enter the plea he answered no and and obviously those are concerning but  i think there is a a valid response to that which is at the plea hearing the judge already knew that the prosecutor was threatening to raise this to first degree intentional the judge already knew that the attorney had done nothing in the two months in prayer to prepare for trial the judge already knew that it nonetheless had scheduled the case and ordered the case to go to trial in two days the judge knew all of those things so how is somebody in mr maurice's position to interpret that obviously the judge didn't think that there was anything improper about that is attorney didn't object to his attorney obviously didn't think that there was anything improper about that the prosecutor did it so the prosecutor didn't think there was anything inappropriate about that mr morris is not a lawyer mr morris this is apparent from the the record on a at least on about foreground  he only pled because of these three things that were pointing to but he's not a lawyer he did not know that these things were inappropriate and everything he saw in court indicated to him that the people who should know did not believe that it was inappropriate same thing on appeal he responded admits that basically everything we're relying on for corrosion is apparent from the record again the lawyer in an anders brief before doing an anders brief is required to review the entire record and make an independent determination whether there is any basis for it claim and his lawyer apparently didn't see anything inappropriate about this it's the lawyers job to decide whether or not there is a legal claim not the defendant's and the defendant doesn't waive a legal claim because he's not smarter than his lawyer so that is that is my my response to the court question on on that particular point now we still have to address the issue with regard to the promise whether there was a promise whether that wasn't a promise the state court of appeals held that it wasn't a promise now that under that could be viewed as a factual finding it could be viewed as an interpretation a legal interpretation of what's in the record i think the proper way to view it record what the prosecutor actually said when he was asked by the judge that is the facts issue any interpretation of that whether that's fortune or whatever is a legal issue and therefore that should not be viewed with the same deference under twenty two fifty four so be it however even if you look at it as a factual finding given the evidence in the record given what the prosecutor actually said the clear and convincing evidence is that the state court was wrong this was a promise the respondent has not indicated that if we're right on this then there's some other grounds that we should lose if we are right on this i think they are conceding that we should win and i believe strongly that we are right on this i see that my time is in my rebuttal thank you the court i'm assistant attorney general marguerite muller representing the warden mark clements even if this court were to resolve all of the procedural issues presented in maurice's favor and review his underlying constitutional claim that his guilty plea to first degree reckless homicide was coerced morris still would not be entitled to any relief and that is primarily because the record of the state court proceedings in particular the factual findings that were made by judge mcmahon following a post conviction of a denture a hearing at which both morris and his post conviction an appellate counsel david lang testified are entitled to the presumption of correctness and morris has not shown that any of those factual findings were contrary to the great weight and clear preponderance of the evidence in addition if you look at the actual transcripts of the proceedings in the state court and those transcripts are all before this court at various points in the record including in maurice's appendix none of the three components of what he calls his coerced guilty plea claim has any merit the first part of it is his claim that trial counsel backus was ineffective because he failed to prepare for a first degree homicide trial well the reason he didn't prepare was that morris had led him to believe that he was going to be entering a guilty plea to first degree reckless homicide and it wasn't until the saturday before trial that morris and his family members met with baucus and expressed some dissatisfaction with his handling of the case because there was a misunderstanding as to whether he could still plead to the original charge in the criminal complaint which was second degree reckless homicide apparently when they scanned the bracelet that morris wore at the host of corrections it came up that the charge was second degree reckless and so naturally you'd be questioning why is my attorney counseling me to plead into something greater than what i'm charged with but the fact is that at that point the charge had already been off to first degree reckless homicide following the waiver of the preliminary which more could you tell us the difference in sentencing that would have applied to mr morris at the time between second and first degree reckless homicide i think i'm not positive because the wisconsin legislature did a lot of with each one i'm asking you and mr hennig probably knows this better but i think that the maximum sentence the first degree reckless which is what he pled to was sixty years and that on second degree it was sporty and i'm not real confident as you can tell with my answer and in fact judge d'amato gave him a very severe sentence he gave him a sixty year sentence forty in on  l confinement twenty out on extended supervision which is the bifurcated format that wisconsin has gone to in any event mr backus was not guilty of an effective assistance because his suggested told him on several occasions before trial that he was going to enter a plea and it was not until this misunderstanding occurred that he started to get cold feet if you look at mr i did not prepare this case for trial all along the issue was one of what to plead to ask compared to go to trial and he said i had no clue i would be going to trial this morning because of the whole nature of the case with one of the acceptance and of conclusion by pleat until this morning so i don't think you can really fault mr backus for being unprepared when he thought he was coming in for a plea hearing and he was told otherwise and was told by morris and morris family who had actually paid to retain backus of services that they wanted a new attorney so that was the first he had heard that they wanted to fire him and to get him off the case the second component of the course police claim was that there was prosecutorial misconduct because the assistant district attorney mark williams threatened to raise the charge to first degree intentional homicide were morris not to enter a plea now first of all i think as judge hamilton pointed out the prosecutor didn't have the court's permission to amend it at that point all he said was that if this case goes to trial i'm going to seek leave of the court to amend the charge up and judge d'amato said well we'll talk about that at one thirty when we reconvene so that was not a done deal at all and when the prosecutor had said within the earshot of mr morris and mr baucus that this is been going on a long time that we've agreed to plead there was not any kind of disagreement especially when you look at the pleat colloquy that followed that very afternoon after the whole misunderstanding was cleared up and morris then understood why second degree reckless homicide was no longer and available option that there had been a mistake made at the district attorney's office and in the way has electronic bridge some kind of a bracelet that he wore in the house of correction registered do we have testimony about conversations that occurred between the morning and afternoon sessions i don't think we have specific testimony is just more or less mr backus explaining to the court what that misunderstanding was and then during the colloquy the judge specifically asked morris did you clear up the problem you had before and i'm not i'm paraphrasing now and morris said yes he asked him whether anything or anybody was forcing him to plead no and i think tellingly he asked him whether he was satisfied with the performance of his attorney and morris said yes and certainly if he was just satisfied thought that hey the only reason i'm pleading in your honor is because i'm scared to go to trial on a first degree murder charge he would said so at that time but he never gave any kind of inkling that that was the case in the same is true when you go to the sentencing hearing hearing which i realize is after the fact but by that point morris had hired a new attorney thomas oland to represent him and there was nothing at the sentencing hearing to suggest that he was on his plea rather morris accepted responsibility for his actions and i think it's important to note that the circumstances of the crime were that only morris and the victim were eyewitnesses to what occurred the victim was shot in the head at close to range morris mid that he did it but he said we were both high on drugs and we were playing i was playing around with a loaded gun and that's how the murder occurred but he didn't go to the police right after this happened instead he dumped the victim's body in an alleyway where it was found i don't even think the same day as the shooting it was found later by passers by and he tried to enlist the aid of eric morris to clean the blood out of his van nor a vehicle where the shooting had occurred so when you look at all these facts and the idea that baucus is telling the court this was always going to be a question of what degree of homicide are we going to questions i in the both the prosecutor and the judge in the trial court in state court back in two thousand and one seemed to treat this as an old case that had to be disposed of as quickly as possible and it was just three months after the shooting i thought they had a little odd too but i was rereading the transcript i noticed that the prosecutor when they were trying to set a trial date was concerned that the trial date  not be set more than ninety days and ninety days under wisconsin statute when there's a speedy trial demand you're supposed to try the case within that timeframe ninety days of from a charge after the chart well after the i think  it's i believe that's after the demand has been made but mr i don't do trial work but i think that's correct that it's after that after the demand i am not aware whether a speedy trial demand was ever made here but i found it kind of interesting that mark williams said well if we put it out until february we're going to go without beyond the ninety days so i'm not sure what the allusion there was but i agree that when they talked about it being an old case maybe that was the situation in milwaukee in two thousand one but certainly in my experience ninety days is not in an old case when you're talking about any degree of homicide and if you could go back to the heart of the case here at least as i see it to the which case i'm sorry heart of this cold heart it's where we've got a defendant who's being told by the judge i'm ready to go to try to start the trial  twenty ninth of two thousand and two mr morris thought he was pleading if he thought he was pleading in the first degree reckless homicide which he eventually did plead into but somehow in between the conferences he had had with mr backus at the jail and when they met with the family on that saturday he got the notion that he could have been pleading into a lesser crime that would have carried a lesser sentence and that's where this whole idea that he wanted to go to trial came in but in response to the whole idea of two days time there's never been any kind of allegation as to who the defense was planning to call as a witness that would have required mr backus to prepare for trial within that two days span of the adjournment that the trial court was willing to give him other than morris himself there were no eyewitnesses to the crime and the only person ever mentioned as a possible defense witness might have been morris and in terms of cross examination and presumably the state's witnesses would have all been listed in the discovery and mr backus knew who he would have to be cross examining had the case gone to trial two days later baucus didn't say anything like whoa two days is not enough for me to do this and there's really no evidence in the state court record of what type of preparation he would have needed that extended more than two days and when it comes down to it judge d'amato was willing to spin off the case to another milwaukee county circuit court judge and we don't know what would have happened if there had been this spinoff and back us would have come in and said hey i just found out something new i do need and more than two days to prepare because it was all short circuit ted when at one thirty that afternoon they came back into court and morris said i'm going to plead and again this was the plea that he was planning to enter a week or so earlier and it only came up over the weekend that he misunderstood that he could not put into the lesser offens be some exceptions i'd like you to basically charge what you think is the most recent straightforward procedural bar that you think keeps us from deciding americans here ok first of all i think there's two kinds of procedural bars one n one in which the state court actually relied on a procedural bar in which case the federal court says ok was this bar independent and adequate but the kind of procedural bar that i'm advocating for which is that the failure to file a petition for review after the no merit direct appeal that isn't the kind of procedural i see my red lights on if i could just finish your response that isn't the kind of procedural bar that the state court has to definitely rely on and kasper sent in cited in my brief as an example where this court found that petitioner had procedurally defaulted several claims because he had not included them in his petition for review to the wisconsin supreme court and there are the state court never made a procedural default finding it was simply by operation of law and could but that if i understand  that theory that the failure to see wisconsin supreme court review from the original no merit people solution assumes that there was at least some decision on the reasons cited in my brief when you got the no merit procedure the court of appeals is supposed to independently examine the record for issues that were not even raised by the attorney in the no merit appeal so in that sense yes you'd have to first find that the direct appeal was merits based in order for my procedural default argument to make any sense the other procedural default argument that i'm not making and the one the district court relied on i don't think would gain any traction with this court because it wasn't until two thousand and five that the wisconsin courts decided that  merit as opposed to america's appeal and since by that time morris is direct appeal had had long been decided ended in two thousand and two i didn't advance that argument in this court if i could just do this or one other thing with you could address mr hicks and last point about whether you agree i'll try to rephrase it captured but whether you agree that if the prosecutor in fact made a promise not to  i don't think that we're in trouble i think it weakens it because he is arguing that it's not just the promise but these three factors that all together in combination with one another cost him to have a  casual a causal rather nexus between the so called promise which we dispute was a promise to morris there was never any kind of consideration for him saying that he was answering a question it was a statement of present intent distemper fifth and by the time we got to the trial date it was january twenty ninth and baucus him self said that he was aware prior to january twenty ninth and that he had told morris the week before that if you don't plead we might be going to trial on first degree intentional homicide so backus knew about it for a longer time than morris but morris according to baucus that at least knew about this possible raise in the charge the week before thank you first in response to the court's question regarding the difference between first degree and second degree reckless first degree reckless at the time was a maximum of sixty years with forty years in initial confinement time according to the complaint which is in the record the second degree reckless is a maximum of fifteen years with the possible five years added for the armed inhance or for being armed so there's a very significant difference there and also the fifteen years i believe it only be ten years of unusual confinement time so the difference is ten years versus forty years of initial confinement the respondent repeatedly says that  morris led back has to believe that he was going to plead to first very reckless homicide there is absolutely nothing in the record to support that the motion the post conviction motion i believe denies doubt the fact is that when we look at the the timing of how this all went down we have december the beginning of december we have a status hearing to schedule everything during that hearing the judge issues a scheduling order the scheduling order sets a a pretrial days prior to the pretrial date under that order significant progress was to be made regarding preparation for trial that's number one number two also  the trial date was the deadline for any plea agreements now we know that there was no clear agreement prior to that date because the parties didn't come in and say anything about a place his statements on the day of trial when he came in and he was unprepared a couple of things one that the week before he had told mr morris that  that at that time that that had a very significant impact on it it elicited a major response from mr morris we also know that at that time morris decided to enter a plea we do not have any indication that he had pled or agreed to plead earlier it was then subsequently so this was the week before the trial date where the first is a decision to enter a plead a plea and then the weekend before when baucus went in to go through the plea questionnaire with him that's when there is a pot so this isn't something that had gone on for months with the idea that there was going to be a plea to first green tensional homicide and he was willing to plead to the second or f willing to plead to the second degree reckless he was always willing to plead to that that's clear from the record i believe but the issue was whether he would be willing to plead to first be reckless and that didn't happen until a week before trial