In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2622

EMMANUEL PAGE,

Petitioner-Appellant,

v.

MATTHEW J. FRANK,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 99 C 1270—Lynn Adelman, Judge.

____________

ARGUED JUNE 6, 2003—DECIDED SEPTEMBER 11, 2003

____________

Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge. Emmanuel Page appeals the denial of his petition for a writ of habeas corpus. See 28

U.S.C. § 2254. The district court held that the last decision rendered on the merits by the state courts, the Court

of Appeals of Wisconsin’s decision of May 19, 1999, was

based on an independent and adequate state procedural

ground and therefore barred collateral review in the federal courts. Because we are in respectful disagreement with

that determination, we must reverse the judgment of the

district court and remand the case for further proceedings.
2 No. 02-2622

I

BACKGROUND

A. Facts

In 1994, Mr. Page was convicted in the Circuit Court for

Milwaukee County, Wisconsin, on two counts of intentional homicide and one count of attempted armed robbery.

These charges were based on the deaths of Felix Rodriguez

and Daniel Valentin. In the state trial court, Mr. Page was

represented by Attorney Andrew Mishlove. Only one

witness to the crime, John Guirau, testified in the State’s

case. Guirau stated that, on August 8, 1996, he was in

his apartment with some friends, including the two decedents. An old friend of Guirau, Caprice Summers, appeared at the door and informed the occupants that he

had a friend outside who was interested in selling an

AK-47 assault rifle. Valentin indicated an interest in the

weapon; Guirau therefore invited Summers and his three

friends, including Mr. Page, into the apartment. According

to Guirau, at some point during the ensuing negotiations

over the weapon’s price, Mr. Page pulled a gun, pointed

it at Guirau’s head and announced a robbery. Summers

and Rodriguez then began struggling for control of the AK47. Guirau testified that Mr. Page fired at him but missed.

Guirau also believed that he heard the AK-47 fire during

the struggle. He heard five shots fired, but he did not see

Mr. Page shoot anyone.

At trial, the most incriminating evidence that Mr. Page

was the shooter was his alleged confession in the handwriting of Detective Sliwinski, one of the two officers who

had questioned Mr. Page at the police station. The document provided two places for the suspect to sign, one

indicating that the individual agreed to waive Miranda

rights and to provide a statement and the other affirm-
No. 02-2622 3

ing the accuracy of the statement. Mr. Page had signed

neither, and the document provided no explanation for

this omission. Mr. Page testified at trial that he had invoked his Miranda rights but that the officers nevertheless

had continued to question him and to ask him to sign a

number of statements; he had refused to do so. Detective

Sliwinski testified that Mr. Page had agreed to make a

statement, had agreed to its accuracy, but nevertheless

had refused to sign the form.

Mr. Page filed a one-page motion to suppress the alleged confession on the ground that the statement had

been procured through a violation of Mr. Page’s Miranda

rights; however, at the suppression hearing, counsel neither briefed the issue nor invited the court’s attention to

any relevant case law. The trial court determined that, as

a matter of law, the statement’s lack of signatures went

to credibility and not admissibility. The trial court then

denied the motion to suppress the statement without

addressing the Miranda issue. During the suppression

hearing, Mr. Mishlove neither submitted any documentary

evidence nor called any witnesses other than Mr. Page.

Mr. Page eventually was convicted on all counts and

sentenced to two consecutive life sentences. At that stage,

Mr. Mishlove withdrew from the case. He was replaced

by new counsel, Robert Kagen.

Following Mr. Page’s conviction, Attorney Kagen filed

a postconviction motion in the state trial court. See

Wis. Stat. § 974.02. This petition presented only one issue: whether certain jury instructions regarding lesser

included offenses should have been given. Mr. Kagen did

not challenge the effectiveness of trial counsel or the admission of the alleged confession. The trial court denied

the postconviction motion.
4 No. 02-2622

Attorney Kagen then filed a no-merit brief in the Court

of Appeals of Wisconsin. See Anders v. California, 386 U.S.

738 (1967). Counsel’s no-merit brief presented three issues; Mr. Page filed a pro se response that raised two

additional issues. None of these issues addressed the

allegedly improper confession, the Miranda violation, or the

effectiveness of trial counsel. On July 30, 1996, the Court

of Appeals of Wisconsin granted the Anders motion, permitted counsel to withdraw and affirmed the trial court’s

decision after reviewing the record and finding no issues

of arguable merit.

Mr. Page, proceeding pro se, then filed a second postconviction motion in the Wisconsin trial court; this motion

was filed under Wisconsin Statute § 974.06. The motion

asserted several constitutional claims, including ineffective assistance of postconviction counsel for failing to

raise the Miranda violation, a confrontation clause claim,

and an ineffective assistance of trial counsel claim. The

state trial court denied the motion; it stated that the

issues presented had no merit and further reasoned that,

as a consequence, neither of Mr. Page’s attorneys had

been deficient in failing to raise them. The state trial court

also denied the motion on the ground of procedural waiver

because the issues had not been raised in the no-merit

briefs on direct appeal. The state trial court further concluded that Mr. Page could not overcome the waiver

because he had not shown good cause for failing to raise

these issues on the direct appeal.

Mr. Page, continuing to act pro se, then filed in the

Court of Appeals of Wisconsin an appeal of the trial court’s

denial of his § 974.06 motion. The Court of Appeals of

Wisconsin affirmed the trial court’s order on May 19, 1999.

It stated that Mr. Page was procedurally barred by the

Supreme Court of Wisconsin’s ruling in State v. Escalona-
No. 02-2622 5

Naranjo, 517 N.W.2d 157 (Wis. 1994). The court then divided its analysis of Mr. Page’s claims into those waived

and those denied on the merits. The court determined

that Mr. Page had waived his confrontation clause claim,

his Miranda claim, and his ineffective assistance of trial

counsel claim because he failed to raise these issues in

his response to the no-merit brief on direct appeal. The

court provided a merits-based rationale for denying Mr.

Page’s ineffective assistance of postconviction/appellate counsel claim by holding that the underlying

issues previously had been decided to be meritless and

therefore need not be reviewed again.

B. District Court Proceedings

Mr. Page next filed a pro se petition seeking a writ of

habeas corpus in the United State District Court for the

Eastern District of Wisconsin. He raised several constitutional issues, including ineffective assistance of trial counsel.

Specifically, he argued that his postconviction/appellate counsel was ineffective in presenting these constitutional challenges before the Wisconsin courts. See R.1 at 7-8.

The district court denied the petition. The court took the

view that the ineffective assistance of postconviction/appellate counsel claims had been procedurally defaulted

and that federal review therefore was barred.

On September 17, 2002, a judge of this court issued a

certificate of appealability certifying three issues:

1. Whether the state post-conviction appeals court’s

decision that petitioner waived his ineffective assistance of counsel claims rested on an adequate and

independent state procedural ground or whether the

decision relied on the merits such that the federal
6 No. 02-2622

claims were preserved for review. See Moore v. Bryant,

295 F.3d 771 (7th Cir. 2002).

2. Whether the state post-conviction appeals court’s

decision that petitioner waived his ineffective assistance of counsel claims by not raising them in response

to appellate counsel’s “no-merit report” pursuant to

Anders v. California, 386 U.S. 738 (1967), was adequate

and independent. Cf. Wilkinson v. Cowan, 231 F.3d 346

[sic 347] (7th Cir. 2000).

3. Whether petitioner’s various attorneys rendered

ineffective assistance of counsel in violation of the

United States Constitution with respect to petitioner’s

Miranda v. Arizona, 384 U.S. 436 (1966), claims.

Appellant’s App. at 32.

II

DISCUSSION

A federal court entertaining a petition for a writ of habeas corpus will not review a question of federal law if

it determines that the state decision rests on a state procedural ground that is independent of the federal question

and adequate to support the judgment. See Moore v. Bryant,

295 F.3d 771, 774 (7th Cir. 2002); Braun v. Powell, 227 F.3d

908, 912 (7th Cir. 2000). Simply stated, the independent

and adequate state ground doctrine bars “ ‘federal habeas

when a state court [has] declined to address a prisoner’s

federal claims because the prisoner [has] failed to meet a

state procedural requirement.’ ” Moore, 295 F.3d at 774

(quoting Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)).

In assessing whether a state court ruling is based on an

“independent and adequate” determination of state law,

the federal court must refer to the decision of the last
No. 02-2622 7

1 Wis. Stat. § 974.02 provides:

(1) A motion for postconviction relief other than under s.

974.06 or 974.07(2) by the defendant in a criminal case

shall be made in the time and manner provided in ss.

809.30 and 809.40. . . .

(continued...)

state court to have ruled on the merits. See Schultz v.

Page, 313 F.3d 1010, 1015 (7th Cir. 2002); Brooks v. Walls, 279

F.3d 518, 522 (7th Cir. 2002). In this case, the last ruling

on the merits by a Wisconsin state court is the May 19,

1999, decision of the Court of Appeals of Wisconsin. See

R.11, Ex.F. We review de novo a district court’s determination that an individual has procedurally defaulted

a claim. See Moore, 295 F.3d at 774; Braun, 227 F.3d at 911-

12. In determining whether a claim has been procedurally

defaulted, we look to Wisconsin law. See Thomas v.

McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000) (stating that,

in a federal habeas proceeding, state law controls whether a claim has been defaulted); Franklin v. Gilmore, 188 F.3d

877, 881 (7th Cir. 1999) (same).

A.

Before we embark on an analysis of the case before us,

it will be helpful to set forth the procedural path that

the Wisconsin legislature has established for the review

of criminal convictions.

The procedures governing the review of Wisconsin

criminal convictions are set forth in §§ 974.02 and 974.06

of the Wisconsin Statutes. After a conviction in a Wisconsin trial court, a defendant’s first avenue of relief is a

postconviction motion under § 974.02.1

 This motion is
8 No. 02-2622

1 (...continued)

(2) An appellant is not required to file a postconviction

motion in the trial court prior to an appeal if the grounds

are sufficiency of the evidence or issues previously

raised.

Wis. Stat. § 974.02.

2 The relevant portion of § 974.06(1) provides:

(1) After the time for appeal or postconviction remedy

provided in s. 974.02 has expired, a prisoner in custody

under sentence of a court . . . claiming the right to be

(continued...)

filed in the trial court in which the conviction was adjudicated. Arguments concerning sufficiency of the evidence

or issues previously raised before the trial court need not

be raised in this motion in order to preserve the right

of appeal with respect to them. See Wis. Stat. § 974.02(2);

State ex rel. Rothering v. McCaughtry, 556 N.W.2d 136, 137

n.3 (Wis. Ct. App. 1996). Any other claim, such as ineffective assistance of counsel, must first be brought in a

§ 974.02 motion. See State v. Waites, 462 N.W.2d 206, 213

(Wis. 1990) (holding ineffective assistance of counsel claim

waived because it was not first raised in a postconviction hearing before the trial court); Rothering, 556 N.W.2d

at 137 (same); State v. Hayes, 481 N.W.2d 699, 700 (Wis.

Ct. App. 1992) (noting that an issue not properly preserved

by a § 974.02 motion is waived). If an issue is raised in the

§ 974.02 motion but relief is denied by the trial court, the

defendant then may appeal to the Court of Appeals of

Wisconsin.

After the times for filing postconviction motions under

§ 974.02 and for taking the subsequent direct appeal have

expired, the defendant has the option of seeking a collateral attack on the judgment under Wis. Stat. § 974.06.2
No. 02-2622 9

2 (...continued)

released upon the ground that the sentence was imposed

in violation of the U.S. constitution . . . may move the

court which imposed the sentence to vacate, set aside or

correct the sentence.

Wis. Stat. § 974.06(1).

Any such collateral challenge follows the same procedural

path as the direct appeal. The initial filing is made by

motion in the trial court and subsequent appeals, if any,

are made in the appellate courts. Motions under § 974.06

are limited to jurisdictional and constitutional issues. Procedural errors are not cognizable. See State v. Carter, 389

N.W.2d 1, 5 (Wis. 1986). Section 974.06(4) further limits

the claims that may be raised collaterally. It provides:

All grounds for relief available to a person under this

section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and

intelligently waived in the proceeding that resulted in

the conviction or sentence or in any other proceeding

the person has taken to secure relief may not be the

basis for a subsequent motion, unless the court finds

a ground for relief asserted which for sufficient reason

was not asserted or was inadequately raised in the

original, supplemental or amended motion.

Wis. Stat. § 974.06(4). The Wisconsin Supreme Court has

interpreted § 974.06(4) to exclude all issues that were

or could have been raised in a § 974.02 postconviction

motion or appeal, including constitutional issues, unless

the defendant provides “sufficient reason” for not raising

the issues in that earlier proceeding. See Escalona-Naranjo,

517 N.W.2d 157, 162 (Wis. 1994).

With this background, we shall turn to the case before us.
10 No. 02-2622

B.

The district court read the Court of Appeals of Wisconsin’s decision to rest on a procedural default because of

the state court’s reliance on State v. Escalona-Naranjo. See

R.29 at 4. In Escalona-Naranjo, the court had held that

constitutional claims that could have been raised on direct

appeal or in a § 974.02 postconviction motion cannot later

be the basis for a collateral motion pursuant to § 974.06.

See Escalona-Naranjo, 517 N.W.2d at 162.

The district court was partially correct in its reading of

the Wisconsin court’s decision. The Court of Appeals of

Wisconsin did rely on procedural default for its discussion of Mr. Page’s Miranda, confrontation clause and

ineffective assistance of trial counsel claims. See R.11,

Ex.F. at 2-5. However, the Court of Appeals of Wisconsin,

relying on State v. Witkowski, 473 N.W.2d 512, 514 (Wis. Ct.

App. 1991), decided the issue of ineffective assistance

of postconviction/appellate counsel on the ground that

the court would not readdress issues that had been litigated previously. See R.11, Ex.F. at 5.

Our case law firmly establishes that only a procedural

default will bar federal habeas review. In Moore v. Bryant,

295 F.3d at 774, we concluded:

[I]f the decision of the last state court to which the

petitioner presented his federal claims fairly appears

to rest primarily on the resolution of those claims, or

to be interwoven with those claims, and does not clearly and expressly rely on the procedural default, we

may conclude that there is no independent and adequate state ground and proceed to hear the federal

claims.

Id. (citing Harris v. Reed, 489 U.S. 255, 263-65 (1989)); see

Farmer v. Litscher, 303 F.3d 840, 846 (7th Cir. 2002). Here, the
No. 02-2622 11

Court of Appeals of Wisconsin based its disposition of the

ineffective assistance of postconviction/appellate counsel

claim on its conclusion that the merits of the claim had

been resolved previously. Such a merit-based determination is not a bar to further consideration in a federal habeas action; “[f]ederal review is precluded only by procedural forfeitures, not by res judicata concerns.” Patrasso v.

Nelson, 121 F.3d 297, 301 (7th Cir. 1997) (quotation marks

and citations omitted); see also Moore, 295 F.3d at 776 n.1.

Consequently, the district court erred in its determination that the issue of ineffective assistance of postconviction/appellate counsel was barred by a procedural default.

Accordingly, this issue must be remanded to the district

court for further proceedings.

C.

Although agreeing that, for the reasons explained in the

earlier section, Mr. Page may challenge his postconviction counsel’s performance, the State has one reservation

to this concession. Wisconsin takes the view that Mr. Page

is not entitled to raise in a federal forum postconviction

counsel’s failure to raise the alleged inadequate performance of trial counsel. In the State’s view, Mr. Page waived

the right to contest ineffective assistance of trial counsel

when he did not raise that claim in his response to the

Anders no-merit brief that his postconviction/appellate

counsel filed on direct appeal before the Court of Appeals

of Wisconsin. The State points out that, in the Court of

Appeals’ later decision on collateral review, the court held

that “Page’s claim that he was denied the effective assistance of trial counsel was . . . waived when he failed to

identify this issue in his response to the no merit report.”

R.11, Ex.F. at 5.
12 No. 02-2622

3 But see Massaro v. United States, 123 S. Ct. 1690, 1693-96 (2003)

(holding that an attack on the competence of trial counsel may

always be made in a subsequent collateral attack pursuant to

28 U.S.C. § 2255, even if the petitioner could have made the claim

on direct appeal). See also Perkins v. Lee, No. 02-25, 2003

WL 21729943, at *4 n.1 (4th Cir. July 25, 2003) (unpublished

opinion) (holding that Masssaro applies only to § 2255 cases

and not to cases originating in state court).

4 See also State v. Lo, 665 N.W.2d 756, 768-69 (Wis. 2003) (declining invitation to overrule Rothering and Rothering’s consideration of “sufficient reason” for failing to raise an issue on direct appeal).

Under Wisconsin’s procedural scheme, which we have

set forth above, Mr. Page would have been required, as

a general matter, to raise the claim of ineffective assistance

of trial counsel in his initial § 974.02 postconviction motion and on later stages of the direct appeal. Id.

3

 Failure

to present the argument would constitute a waiver. See

§ 974.06(4). However, the Court of Appeals of Wisconsin

also has acknowledged that this general rule cannot be a

hard and fast one. In Rothering, the court of appeals stated:

It may be in some circumstances that ineffective

postconviction counsel constitutes a sufficient reason

as to why an issue which could have been raised on

direct appeal was not. In other words, demonstrating

to the trial court a sufficient reason for why issues

were not raised on direct appeal raises the same questions about counsel’s conduct which the defendant

would attempt to characterize as ineffective appellate

counsel.

Rothering, 556 N.W.2d at 139.4

The State takes the position, as did the Court of Appeals

of Wisconsin, that Mr. Page’s failure to address the issue
No. 02-2622 13

5 See State v. Waites, 462 N.W.2d 206, 213 (Wis. 1990) (holding

that failure to argue ineffective assistance of trial counsel claim

in initial postconviction hearing waives the issue on appeal);

State v. Machner, 285 N.W.2d 905, 908-09 (Wis. Ct. App. 1979)

(requiring evidentiary hearing at which trial counsel is present

before claim of ineffective assistance of trial counsel may be

pursued on appeal); State v. Curtis, 582 N.W.2d 409, 409-10 (Wis.

Ct. App. 1998) (holding that Machner evidentiary hearing at

the trial level is required as a necessary prerequisite in every

case before a defendant asserts an ineffective assistance of

counsel claim on appeal).

This approach has been followed regularly by Wisconsin

courts in the “no-merits” context. See State v. Neita, No. 95-2858-

CR-NM, 1996 WL 426110, at *3 (Wis. Ct. App. July 31, 1996)

(unpublished opinion) (declining to address ineffective assistance of counsel claims raised in response to no-merit brief

because the matter was not raised in trial court first); State

v. Fadness, No. 87-2093-CR-NM, 1988 WL 148281, at *1 (Wis. Ct.

App. Dec. 21, 1988) (unpublished opinion) (same).

of ineffective assistance of trial counsel in his response to

the Anders no-merit brief constitutes a waiver and ought

not be excused. See Appellee’s Br. at 6-8. We cannot accept this argument.

First, we do not believe that an even-handed application of Wisconsin law permits such a result. It is clear

that Wisconsin law would not have permitted Mr. Page to

make such an argument before the Court of Appeals of

Wisconsin without its having been raised initially before

the trial court.

When Mr. Page’s postconviction counsel failed to assert

a claim of ineffective assistance of trial counsel in the

§ 974.02 motion before the trial court, he foreclosed Mr.

Page’s opportunity to argue such a claim on direct appeal.5

Consequently, the appropriate forum for Mr. Page’s chal-
14 No. 02-2622

lenge to the ineffective assistance of postconviction counsel for failure to raise the issue of ineffective assistance

of trial counsel was in a collateral motion under § 974.06.

Mr. Page properly brought such a motion and argued ineffective assistance of postconviction counsel.

Our case law has required consistently that, in order for

a procedural rule to be adequate to support a state

court’s judgment, that procedural rule must be applied in

a “consistent and principled way.” Braun, 227 F.3d at 912;

Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir. 1990).

“State court decisions are not adequate to bar federal habeas review unless they rest upon firmly established and

regularly followed state practice.” Franklin, 188 F.3d at 882

(citing James v. Kentucky, 466 U.S. 341, 348-51 (1984)). “A

basis of decision applied infrequently, unexpectedly, or

freakishly may be inadequate, for the lack of notice and

consistency may show that the state is discriminating

against the federal rights asserted.” Prihoda, 910 F.2d at

1383 (citing Johnson v. Mississippi, 486 U.S. 578, 587-89

(1988)); see also Braun, 227 F.3d at 912. The practical effect

of the Court of Appeals of Wisconsin’s conclusion—that

the failure to identify ineffective assistance of trial counsel

as an issue in response to an Anders no-merit brief constitutes a waiver—is to require Mr. Page to have asserted a

claim before the court of appeals that, under established

Wisconsin case law, he could not bring initially in that

forum because it had not been brought to the attention

of the trial court. Federal habeas review cannot be precluded

on such a ground because the basis relied upon by the

Wisconsin court does not apply Wisconsin procedure in

a “consistent and principled way.” Braun, 227 F.3d at 912.

There is an even more fundamental reason why a criminal defendant may not be said to have waived a claim in

the manner suggested by the Court of Appeals of Wiscon-
No. 02-2622 15

sin. It is well established that a criminal defendant possesses

the right to effective assistance of counsel through his

first appeal of right. See Evitts v. Lucy, 469 U.S. 387, 396

(1985); Kitchen v. United States, 227 F.3d 1014, 1018 (7th

Cir. 2000). Moreover, ever since Johnson v. Zerbst, 304 U.S.

458 (1938), the Supreme Court has maintained that there

is a definite presumption against finding a waiver of a

defendant’s Sixth Amendment right to counsel. Such a

waiver must be “an intentional relinquishment or abandonment of a known right or privilege.” Id. at 464. In faithful

adherence to that principle, our own case law has maintained that we “ ‘must indulge every reasonable presumption against the loss of constitutional rights.’ ” United States

v. Watkins, 983 F.2d 1413, 1418 (7th Cir. 1993) (quoting

Illinois v. Allen, 397 U.S. 337, 343 (1970)). It would be incongruous to maintain that Mr. Page has a Sixth Amendment

right to counsel on direct appeal, but then to accept the

proposition that he can waive such right by simply failing

to assert it in his pro se response challenging his counsel’s

Anders motion.

D.

The certificate of appealability issued by a judge of this

court directed the parties to address the merits of Mr.

Page’s claims. Mr. Page’s primary underlying claim is that

his trial counsel was ineffective for failing to contest

strongly the possible Miranda violation arising from the

admission of a confession where the Miranda waiver form

was not signed. To prevail on an ineffective assistance

of counsel claim pursuant to Strickland v. Washington, 466

U.S. 668 (1984), a petitioner must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A
16 No. 02-2622

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

When a district court has declined to address the merits of a claim on procedural grounds and this court reverses

the procedural ruling, “the appropriate step is to remand

the case for further proceedings (including an evidentiary hearing, if necessary) so that the district court can

determine the merits . . . in the first instance.” Newell v.

Hanks, 283 F.3d 827, 838 (7th Cir. 2002); Farmer, 303 F.3d

at 847. Upon examination of the record, we believe that

there is no reason to deviate from this normal course of

proceeding. Consequently, we remand this matter to the

district court for consideration of the merits of Mr. Page’s

petition.

Conclusion

Accordingly, the judgment of the district court is

reversed, and the case is remanded to the district court

for proceedings consistent with this opinion.

REVERSED and REMANDED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-11-03