CA7: Requiring IAC claims to be brought in an Anders brief is not an adequate procedural bar.

Johnson v. Thurmer, No. 07-2628 (7th Cir. Oct. 18, 2010) (Kanne, J.) — The Seventh Circuit reiterated its rule that a Wisconsin procedural bar applied to IAC claims that were not raised an Anders brief on direct appeal is not adequate to support procedural default. The rule is too confusing, the court held, because the appellate court wouldn’t be allowed to consider a trial-level IAC claim on direct appeal on account of the claim not being presented to the trial court in the first instance. Wisconsin also requires defendants seeking to raise IAC claims to bring them in a postconviction motion filed before the Anders brief, but that doesn’t preserve the issue for the direct appeal either, because the court reviewing the direct appeal doesn’t have an order denying postconviction relief in front of it. Finally, to the extent the rule requires appellate IAC claims to be raised in the Anders brief, the court noted the usual rule that a lawyer can’t bring an ineffectiveness claim against herself.