Pidgeon v. Smith, No. 14-3158 (7th Cir. 2015)
Annotate this CasePidgeon pled no contest to second-degree sexual assault of a child; other counts were dismissed. Pidgeon claims that he accepted the plea because his attorney and the prosecutor told Pidgeon that, if he did not accept the plea, he was subject to the Wisconsin persistent offender law, Wis. Stat. 939.62(2m). Under that law, a third “serious felony” conviction results in mandatory life imprisonment without the possibility of parole. Counsel apparently thought that Pidgeon’s 1991 aggravated battery conviction constituted a serious felony; a conviction for the sexual assault would constitute a second serious felony; and Pidgeon faced a third possible conviction (third-degree sexual assault of an adult) in a case in which Pidgeon had not yet been charged. If Pidgeon agreed to the plea bargain, the district attorney’s office agreed not to prosecute. Both attorneys were wrong; the 1991 conviction does not constitute a serious felony. After exhausting state remedies, Pidgeon sought federal habeas corpus relief. The court found that trial counsel’s performance was constitutionally ineffective, allowing Pidgeon to withdraw his plea and proceed to trial. The Seventh Circuit affirmed, rejecting an argument based on Pidgeon’s failure to call former counsel as a witness during the hearing, as would be required in an ineffective assistance hearing in Wisconsin state court.
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