Alan R. Ward v. LARRY JENKINS, Warden, Fox Lake Correctional Institution , å

We substitute Larry Jenkins, the current warden of Fox Lake å
Correctional Institution, as the Respondent in this action.
See Fed. R. App. P. 43(c)(2).
In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2809
ALAN R. WARD,
Petitioner-Appellant,
v.
LARRY JENKINS, Warden,
Fox Lake Correctional Institution , å
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:07-CV-961—Lynn Adelman, Judge.
ARGUED NOVEMBER 12, 2009—DECIDED JULY 23, 2010
Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Petitioner Alan R. Ward
pleaded guilty in Wisconsin state court to felony theft
by contractor and felony bail jumping after taking down

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2 No. 08-2809
payments from customers of his home improvement
business without performing any of the work he con-
tracted to do. He was sentenced to five years’ imprison-
ment and nine years’ supervised release. Ward sought
postconviction relief in the state courts arguing, inter alia,
that his counsel was ineffective because he ignored
Ward’s requests to file a motion to withdraw his guilty
plea prior to sentencing. After exhausting state post-
conviction remedies, Ward sought federal habeas corpus
relief under 28 U.S.C. § 2254. The district court denied
Ward’s petition without holding an evidentiary hearing.
Because Ward has alleged facts which, if proven, would
entitle him to federal habeas relief, and because he was
never afforded a full and fair hearing in the state courts,
we remand to the district court for an evidentiary hearing.
I. BACKGROUND
Ward owned a home improvement business called
Ward Construction. Though Ward may have been a
skilled contractor, he had serious problems with the
financial side of his operation. Ward accepted down
payments from numerous customers, but failed to per-
form the work he contracted to do. As a result, he was
charged with multiple violations of Wisconsin’s criminal
theft by contractor statute, Wis. Stat. § 943.20(1)(b). He
was also subsequently charged with multiple counts of
felony bail jumping, Wis. Stat. § 946.49(1)(b), when he
continued to run his business after posting bail in viola-
tion of his signature bond. Overall, Ward was charged
in four informations with 21 total counts of theft by
contractor and bail jumping.

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No. 08-2809 3
Ward had a plea hearing in Sauk County Circuit Court
on March 10, 2004. He was represented by attorney
Roger Klopp, whom he met for the first time that day.
Ward claims that at no time during that meeting did
Klopp review possible defenses to the charges with him.
At the hearing, the state set forth the terms of a plea
agreement. Ward would plead guilty to two counts of
theft by contractor and three counts of felony bail
jumping, and the remaining counts in the various
informations would be dismissed, but read in for the
purposes of sentencing and restitution. The amount of
restitution would be determined in conjunction with
sentencing, and the state would cap its total confinement
recommendation to six years.
Some confusion ensued when it came time for Ward to
enter a plea. Asked how Ward wished to plea, Klopp
initially answered “no contest.” The court noted that the
plea agreement was based on a plea of guilty, not no
contest. Klopp immediately corrected himself and
clarified that Ward’s plea was “guilty,” and stated that he
had explained the difference between that and no contest
to his client. Ward, however, immediately spoke up and
told the court that he did not in fact understand the
difference between the two. The court then provided an
explanation to Ward, which Ward stated he understood.
Following this explanation, however, Ward repeated
his desire to plead no contest.
Concluding that there was apparently no agreement,
the judge began to schedule the case for trial. Klopp
interjected and asked for a recess in order to explain

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4 No. 08-2809
The court admitted the state’s proposed restitution, but gave 1
Ward thirty days to challenge the state’s proposal. Neither
(continued...)
and clarify the details of the plea agreement with Ward,
which the court granted. Ward claims that during this
recess, Klopp pressured him to plead guilty. Back in
court after the recess, Ward indicated that he had come
to understand the difference between guilty and no
contest, and entered a plea of guilty pursuant to the
agreement. The court accepted the plea and scheduled
a sentencing hearing.
Following the plea hearing, but before sentencing,
Ward asked for a new lawyer. Klopp withdrew as counsel,
and Attorney Gerald Opgenorth was appointed in his
stead on September 1, 2004. Ward claims that thereafter,
he repeatedly instructed Opgenorth to withdraw his
guilty plea, but that Opgenorth ignored his requests.
According to Ward, Opgenorth went so far as to draft a
motion to withdraw the plea, but never filed it. It is
this alleged refusal to withdraw the plea that forms
the basis of Ward’s habeas petition before this court.
With his guilty plea still in place, Ward’s sentencing
hearing took place on February 11, 2005. Ward spoke at
the hearing, but made no indication that he wanted to
go to trial instead of pleading guilty, nor did he bring
up any alleged requests to Opgenorth to move to with-
draw his plea. The court sentenced Ward to five years’
imprisonment and nine years’ supervised release and
tentatively ordered restitution in the amount of $78,000.1

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No. 08-2809 5
(...continued)
Opgenorth nor Ward filed a request for another restitution
hearing, so the court ordered Ward to pay the $78,000 in
restitution that had been proposed by the state.
Ward sought postconviction relief following judgment.
In a pro se motion, Ward raised a host of claims, including
allegations that both attorneys Opgenorth and Klopp
rendered ineffective assistance of counsel. With respect
to Opgenorth, Ward stated that he was ineffective due
to “[t]he denial of defendant’s continued request to
WITHDRAW THE PLEA. Attorney Opgenorth did in
fact typed [sic] out defendant’s motion to withdraw the
plea, but insisted not to follow through with defendant’s
request to withdraw the guilty plea.” With respect to
Klopp, Ward alleged that he “changed” Ward’s no
contest plea without his consent, and that he waived
Ward’s right to a preliminary hearing without his con-
sent. Ward’s motion cited the Sixth and Fourteenth
Amendments, Strickland v. Washington, 466 U.S. 668 (1984),
and a number of state cases involving ineffective assist-
ance of counsel claims. Ward requested a Machner hearing,
an evidentiary hearing provided under Wisconsin law
to preserve trial counsel’s testimony when pursuing an
ineffective assistance of counsel claim. See State v. Machner,
285 N.W.2d 905, 908-09 (Wis. 1979); see also Northern v.
Boatwright, 594 F.3d 555, 559 (7th Cir. 2010). The trial court
denied all of Ward’s claims and denied a Machner hearing.
Ward appealed to the Wisconsin Court of Appeals, again
alleging that Opgenorth “did not respect the client’s

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6 No. 08-2809
decision to withdraw the plea,” and again sought a
Machner hearing to develop evidence in support of his
allegations. The court of appeals also denied Ward’s
claims. In its opinion, the court set forth the Strickland
standard, and stated “Ward contends that . . . Opgenorth
provided ineffective assistance of counsel because [he]
failed to request a restitution hearing. We reject this
claim because, among other things, Ward did not ade-
quately plead it in his postconviction motion.” State v.
Ward, 739 N.W.2d 490 (Wis. Ct. App. 2007) (unpublished
disposition). The appellate court did not directly address
Ward’s claim that Opgenorth ignored requests to with-
draw Ward’s guilty plea. Ward sought review from the
Wisconsin Supreme Court, again noting that he had been
denied an evidentiary hearing. The Wisconsin Supreme
Court denied review. State v. Ward, 742 N.W.2d 525
(Wis. 2007) (table disposition).
Having exhausted his state remedies, Ward filed a pro se
petition for a writ of habeas corpus in the United States
District Court for the Eastern District of Wisconsin pursu-
ant to 28 U.S.C. § 2254. In the petition, Ward alleged
multiple instances where both Klopp and Opgenorth
provided ineffective assistance of counsel, including
Opgenorth’s failure to withdraw Ward’s guilty plea. The
district court denied all of Ward’s claims, finding that
the state court did not unreasonably apply Strickland
because Ward did not allege that he was prejudiced
by Klopp or Opgenorth’s conduct. Still acting pro se,
Ward appealed to this court. We granted a certificate of
appealability and appointed counsel to represent him as
to a single issue: whether Opgenorth rendered ineffec-

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No. 08-2809 7
tive assistance of counsel by refusing to file a motion to
withdraw Ward’s guilty plea.
II. ANALYSIS
A. Procedural Default
Before reaching the merits of Ward’s petition, we first
address the state’s argument that Ward procedurally
defaulted his ineffective assistance of counsel claim.
We review a district court’s procedural default ruling
de novo. Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir. 2003).
The procedural default doctrine precludes federal
review of a state court’s habeas decision when the state
court’s decision was based on adequate and independent
state law, or when the federal issue was not fairly pre-
sented to the state courts and those courts would now
hold the claim procedurally barred. Coleman v. Thompson,
501 U.S. 722, 729 (1991); see also Perruquet v. Briley, 390
F.3d 505, 514 (7th Cir. 2004). The doctrine requires that
petitioners fairly present their claims “in concrete,
practical terms, [so that] the state court [is] sufficiently
alerted to the federal constitutional nature of the issue.”
Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001)
(quoting Kurzawa v. Jordan, 146 F.3d 435, 442 (7th Cir.
1998)). To determine whether a constitutional issue
has been fairly presented, we consider four factors:
“1) whether the petitioner relied on federal cases that
engage in a constitutional analysis; 2) whether the peti-
tioner relied on state cases that apply a constitutional
analysis to similar facts; 3) whether the petitioner

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8 No. 08-2809
framed the claim in terms so particular as to call to mind
a specific constitutional right; and 4) whether the peti-
tioner alleged a pattern of facts that is well within the
mainstream of constitutional litigation.” Ellsworth, 248
F.3d at 639. In determining whether a claim has been
fairly presented, we liberally construe pro se petitions
such as Ward’s. See Johnson v. Hulett, 574 F.3d 428, 433
(7th Cir. 2009).
The state argues that Ward procedurally defaulted his
claim because he failed to fairly present the Wisconsin
courts with a federal issue, and the state courts ruled
against Ward based on adequate and independent
state law grounds. We disagree. A review of Ward’s
postconviction motion before the state court shows that
he fairly presented a federal issue. Ward claimed that
Opgenorth provided ineffective assistance of counsel
because he failed to withdraw his guilty plea. Ward cited
the Sixth and Fourteenth Amendments, Strickland v.
Washington, and a number of state cases involving con-
stitutional analysis. While Ward’s motion did not
provide a highly detailed factual basis for Opgenorth’s
alleged deficient conduct or a precise account of how
that conduct prejudiced Ward, it adequately called to
mind a specific constitutional right—the Sixth Amend-
ment right to effective assistance of counsel—and alleged
a pattern of facts that is well within the mainstream of
constitutional litigation of that right. See Perruquet, 390
F.3d at 512 (“Whatever gaps there may be in [defendant’s]
petition and supporting memorandum, the basic
rationale of [defendant’s] due process argument is
readily discernible.”). Ward’s claim contains enough

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No. 08-2809 9
detail to have sufficiently alerted the state court to
his federal constitutional claim.
Of course, Ward must present the same “factual and
legal bases” to the federal court that he presented to the
state court. Curtis v. Montgomery, 552 F.3d 578, 583 (7th
Cir. 2009). “[H]ypertechnical congruence between the
claims” made in the federal and state fora is not
required, however, Anderson v. Benik, 471 F.3d 811, 814-15
(7th Cir. 2006), and a petitioner may “reformulate his
claims somewhat, so long as the substance of his argu-
ment remains the same.” Boyko v. Parke, 259 F.3d 781, 788
(7th Cir. 2001). While Ward’s federal argument is more
developed than it was before the state court (as one
would expect with the benefit of counsel), the substance
is the same: that Opgenorth ignored requests to move
to withdraw the guilty plea. See Picard v. Connor, 404
U.S. 270, 277 (1971) (holding that “variations in the legal
theory or factual allegations” of a claim do not bar
review so long as the substance of the federal claim
remains the same).
B. Whether Ward is Entitled to an Evidentiary Hearing
Ward seeks habeas corpus relief on the basis that he
was denied effective assistance of counsel when
Opgenorth allegedly refused to move to withdraw
Ward’s guilty plea. Ward claims that he repeatedly
asked Opgenorth to file a motion to withdraw the plea
prior to sentencing, but that Opgenorth ignored those
requests. According to Ward, Opgenorth even went so
far as to type up a motion to withdraw the plea, but

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10 No. 08-2809
never filed it. Ward claims that had Opgenorth heeded
his requests, Ward would not have pleaded guilty and
would instead have gone to trial.
We review Ward’s habeas claim under the Antiter-
rorism and Effective Death Penalty Act of 1996 (AEDPA),
28 U.S.C. § 2254. To be entitled to relief under AEDPA,
Ward must demonstrate that the state court decision
denying his claim was either “contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1); see Jones v. Wallace,
525 F.3d 500, 503 (7th Cir. 2008). Here, the federal law
upon which Ward bases his claim is that of Strickland
v. Washington. Strickland’s familiar two-part test requires
a petitioner to demonstrate (1) that counsel’s performance
fell below “an objective standard of reasonableness,”
466 U.S. at 688, and (2) a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. To
satisfy Strickland in the context of a guilty plea, a peti-
tioner must show that “counsel’s advice regarding the
plea was objectively unreasonable and that there is a
reasonable probability that but for counsel’s error, [peti-
tioner] would not have pled guilty, but would have
insisted upon a trial.” Moore v. Bryant, 348 F.3d 238, 241
(7th Cir. 2003) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
We are not in a position to evaluate the merits of
Ward’s ineffective assistance claim, because the facts
relevant to Ward’s claim have never been developed. The
credibility of Ward’s allegations have never been tested,

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No. 08-2809 11
nor has the testimony of attorneys Opgenorth or Klopp
ever been obtained. See Matheney v. Anderson, 253 F.3d
1025, 1040 (7th Cir. 2001) (“An adequate record is impera-
tive to properly evaluate ineffective assistance claims.”);
see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (rea-
sonableness inquiry is “circumstance-specific”). As the
Strickland court itself held, courts must “judge the rea-
sonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s
conduct.” 466 U.S. at 690. Here, we do not have these
requisite facts. Ward has asserted in his § 2254 peti-
tion, under the penalty of perjury, that Opgenorth was
unwilling to move to withdraw his guilty plea. Ward
sought an evidentiary hearing at every level of his state
postconviction proceedings in order to attempt to
develop evidence to prove this assertion, but those re-
quests were denied. Nor was he afforded an evidentiary
hearing in the district court below. Given this posture,
our inquiry is limited to whether Ward is entitled to an
evidentiary hearing to try and develop facts that
would support his petition.
AEDPA governs the availability of evidentiary hearings
on federal habeas review, and generally bars them
except in narrow exceptions inapplicable to Ward. See 28
U.S.C. §§ 2254(e)(2)(A), (B). But § 2254(e)(2)’s bar only
applies when the failure to develop the factual basis for
a claim is attributable to the petitioner. Williams v. Taylor,
529 U.S. 420, 435 (2000); Davis v. Lambert, 388 F.3d 1050,
1059-60 (7th Cir. 2004). Here, it is through no fault of
Ward that the factual basis of his claim has not been
developed. Ward diligently sought a Machner hearing at

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12 No. 08-2809
every step in his state court proceedings, but those
requests were denied. Section 2254(e)(2) thus does not
bar an evidentiary hearing for Ward. Allen v. Buss, 558
F.3d 657, 664-65 (7th Cir. 2009) (§ 2254(e)(2) does not
block evidentiary hearing where state court did not
fully consider evidence petitioner had put forth); Davis,
388 F.3d at 1060 (§ 2254(e)(2) no bar where petitioner
was “diligent in pursuing his opportunities to develop
the necessary facts in state court.”).
With AEDPA posing no bar, Ward is entitled to an
evidentiary hearing in federal court if (1) he has alleged
facts which, if proved, would entitle him to habeas relief
and (2) the state courts, for reasons beyond his control,
never considered his claim in a full and fair hearing.
Davis, 388 F.3d at 1061; Matheney v. Anderson, 253 F.3d
1025, 1039 (7th Cir. 2001). For the reasons explained
below, we find that Ward has satisfied these require-
ments. Ward has alleged facts which if proven would
entitle him to habeas relief on his ineffective assistance
of counsel claim, and despite his efforts, the state courts
never considered the claim in a full and fair hearing.
1. Ward Has Alleged Facts Which, If Proved, Would
Entitle Him to Relief
Ward alleges that he instructed Opgenorth to file a
motion to withdraw his guilty plea, but that Opgenorth
disregarded these instructions. If it is true that Opgenorth
refused to file a motion to withdraw Ward’s plea despite
a direct instruction that he do so, his performance was
constitutionally ineffective under Strickland. Such con-

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No. 08-2809 13
duct would fall below Strickland’s objective standard
of reasonableness, and it prejudiced Ward because there
was at least a reasonable probability that such a motion
would have succeeded.
a. Deficiency
As the state conceded at oral argument, if Opgenorth did
indeed refuse to heed a direct request, this conduct was
deficient. The decision whether or not to plead guilty is
a major one that rests ultimately with the client, and a
lawyer who disregards specific instructions as to such
a decision acts unreasonably. See Florida v. Nixon, 543
U.S. 175, 187 (2004) (defendant has “ultimate authority”
over decisions involving fundamental trial decisions
including whether to plead guilty (quoting Jones v.
Barnes, 463 U.S. 745, 751 (1983)); Wallace v. Davis, 362 F.3d
914, 920 (7th Cir. 2004) (“[m]any decisions during trial
fall to counsel by default or by virtue of superior knowl-
edge, but the major ones . . . may be exercised personally,
if the accused wants to make rather than delegate these
vital choices”); cf. Flores-Ortega, 528 U.S. at 477 (lawyer
who disregards specific instructions to file a notice of
appeal acts unreasonably). If, on the other hand, it turns
out that Opgenorth strongly advised Ward not to with-
draw the plea as a strategic matter, but did not
disregard any direct, unequivocal instructions, his con-
duct may well have been reasonable, particularly in
light of Strickland’s “strong presumption that counsel’s
conduct falls within the wide range of reasonable profes-
sional assistance.” 466 U.S. at 689; see also Brown v. Finnan,

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14 No. 08-2809
598 F.3d 416, 423 (7th Cir. 2010). The circumstances of
what exactly transpired between Ward and Opgenorth
will be a determination for the district court to make
with the benefit of an evidentiary hearing at which credi-
bility determinations can be made. See Flores-Ortega, 528
U.S. at 477; Matheney, 253 F.3d at 1040.
b. Prejudice
Assuming that Ward’s allegations are true and that
Opgenorth’s performance was objectively unreasonable,
Ward must also demonstrate that the refusal to file a
motion to withdraw his guilty plea prejudiced him.
Strickland, 466 U.S. at 694. To demonstrate prejudice,
Ward would have to show that (1) there was rea-
sonable probability that, but for counsel’s errors, he would
not have pled guilty and would have insisted on going
to trial and (2) there was a reasonable probability that
the court would have granted his motion to withdraw
his guilty plea. Hill, 474 U.S. at 59; Moore, 348 F.3d at 241.
We find that Ward has satisfied these requirements.
As to Hill’s first requirement, Ward contends that he
would have gone to trial but for Opgenorth’s actions
because he had a viable defense against the charges he
faced. Ward claims that although he may have taken
customer money without performing any services in
return, he never intended to keep the money and always
meant to eventually complete the work. He argues that
the government therefore could not have proven intent,
a necessary element for a violation of the theft by contrac-
tor law. Wis. Stat. § 943.20(1)(b). We need not assess the

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No. 08-2809 15
That said, the credibility of Ward’s claim that he wished to 2
go to trial is undercut by the fact that he made no such assertion
in state court at a time when one might have expected him to do
so. Ward was afforded an opportunity to speak during his
sentencing hearing, and at no time during his statements did he
(continued...)
likely success of such a defense; Ward’s claim that he
would have insisted on going to trial to pursue it is
enough at this juncture to satisfy the first prong of the
prejudice analysis. See Hill, 474 U.S. at 59; see also Holtan
v. Parratt, 683 F.2d 1163, 1170 (8th Cir. 1982) (prejudice
where attorney failed to act on defendant’s request to
withdraw a nolo contendre plea); cf. Castellanos v. United
States, 26 F.3d 717 (7th Cir. 1994) (prejudice where
lawyer failed to carry out client’s instruction to file an
appeal regardless of chances of success).
The district court concluded that Ward did not demon-
strate prejudice because he never actually alleged that he
would have gone to trial but for Opgenorth’s alleged
errors. We disagree with this interpretation. While it is
true that Ward’s § 2254 petition does not explicitly state
that he would have insisted on going to trial, that to us
is the clear import of his claim that he wished to with-
draw his guilty plea. The natural result of a plea with-
drawal would have been to face trial on the charges
instead (and with the benefit of counsel on appeal, Ward
makes the point explicitly). This interpretation is par-
ticularly appropriate in light of our obligation to liberally
construe pro se submissions like Ward’s. See, e.g., McGee
v. Bartow, 593 F.3d 556, 566-67 (7th Cir. 2010).2

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16 No. 08-2809
(...continued)
express a desire to go to trial or make any reference to a refusal
by Opgenorth to withdraw his plea. A district court need not
hold an evidentiary hearing when “the record refutes the
applicant’s factual allegations.” Schriro v. Landrigan, 550 U.S. 465,
474 (2007) (Strickland claim that counsel failed to investigate
mitigating evidence was refuted by record showing that
petitioner had instructed counsel not to do so); see also Totten
v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (no evidentiary
hearing necessary where petitioner’s assertion “flies in the face
of logic in light of . . . [facts] easily discernible from the re-
cord.”). The state does not argue, however, that Ward’s
factual allegations are refuted by the record, and while we
harbor some doubts about Ward’s ability to prove his assertion,
we do not discern anything in the record that directly contra-
dicts his claim so as to preclude an evidentiary hearing. Cf.
Schriro, 550 U.S. at 476 (sentencing colloquy “plainly indicate[d]”
that petitioner had instructed counsel not to present mitigating
evidence, contradicting claim on habeas review that counsel
had unreasonably failed to do so).
Hill’s second requirement is a reasonable probability
that the state court would have granted a motion to
withdraw his guilty plea had one been filed. 474 U.S. at 59.
In Wisconsin, a defendant will be permitted to withdraw
his plea prior to sentencing if there is a “fair and just”
reason for doing so, and the prosecution will not be
“greatly prejudiced” by the withdrawal. State v. Barney,
570 N.W.2d 731, 735 (Wis. Ct. App. 1997). The state con-
ceded at oral argument that it would not have been
prejudiced by a withdrawal of Ward’s guilty plea, so our
inquiry turns solely on whether a fair and just reason

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No. 08-2809 17
exists for withdrawal under Wisconsin law. Wisconsin
courts have “consistently articulated a liberal rule” in
determining what constitutes a fair and just reason to
withdraw a plea. State v. Jenkins, 736 N.W.2d 24, 33-35
(Wis. 2007); see also State v. Garcia, 532 N.W.2d 111, 117
(Wis. 1995) (“confusion is a fair and just reason for with-
drawal”); State v. Manke, 602 N.W.2d 139, 144 (Wis. Ct.
App. 1999) (granting plea withdrawal where defendant
“misunderstood his plea and received misleading
advice from his attorneys”).
Ward asserts that his confusion during his plea
hearing constitutes a fair and just reason to withdraw
the plea. A review of the plea hearing transcript does
create the impression that Ward may have been
confused about the plea he entered. Even after the judge
explained the difference between a no contest and guilty
plea to Ward, he continued to express confusion. Ward
further contends that Klopp did not resolve his confu-
sion during the recess that followed, but instead
pressured him to enter the guilty plea. That said, Ward did
eventually indicate to the court that he understood the
difference between a guilty and no contest plea, and that
he wished to plead guilty.
We need not decide whether Ward’s assertions defini-
tively constitute a “fair and just” basis for withdrawal of
his plea; we need only determine whether there was a
reasonable probability that a Wisconsin court would so
conclude. Hill, 474 U.S. at 59; see also Julian v. Bartley, 495
F.3d 487, 498 (7th Cir. 2007) (“[t]he chances of prejudice
need only be better than negligible.”). Given the broad

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18 No. 08-2809
discretion Wisconsin courts have in this area, we find
that there is a reasonable probability that the trial court
would have found that there was fair and just reason
to permit Ward to withdraw his plea. See Jenkins, 736
N.W.2d at 33; see also Garcia, 532 N.W.2d at 117 (“confusion
is a fair and just reason for withdrawal”).
2. The State Courts Never Considered Ward’s
Claim in a Full and Fair Hearing
To be entitled to an evidentiary hearing, Ward must also
demonstrate that the state courts, for reasons beyond his
control, never considered his claim in a full and fair
hearing. Davis, 388 F.3d at 1061. It is clear that the state
courts did not consider Ward’s claim regarding
Opgenorth in any full and fair hearing. As we have
already discussed, Ward requested a Machner hearing at
every step in his state proceedings in order to develop the
factual basis for his assertions, but those requests were
denied. See id.; Jones, 525 F.3d at 503 (petitioner not at
fault for failing to develop factual record when state
courts refused his request for evidentiary hearing). Ward
has satisfied this requirement.
III. CONCLUSION
Ward is entitled to an evidentiary hearing regarding
his claim that Opgenorth rendered ineffective assistance
of counsel by refusing to file a motion to withdraw
Ward’s guilty plea. The case is REMANDED to the district

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No. 08-2809 19
We note the potential implications of the relief Ward seeks. 3
Ward has already served the custodial sentence set forth in
his plea agreement and is currently on supervised release. If it
is found that Ward is entitled to federal habeas relief, Ward
could get exactly what he seeks—withdrawal of his plea and a
trial instead. The state could conceivably reinstate all of the
charges against him, including those that had been dropped
pursuant to the plea agreement, exposing Ward to far more
potential prison time. Asked at oral argument whether Ward
wished to proceed in light of this risk, counsel represented that
he did. Still concerned about whether Ward truly understood
the potential implications of the relief he seeks, we instructed
counsel to again confer with Ward, and if he still wished to
proceed, to file a statement of intent so indicating. Counsel filed
a notice reiterating Ward’s “desire and intent” to pursue the
appeal shortly thereafter, and so we therefore proceed with
disposition of the case.
7-23-10
court with instructions to proceed with an evidentiary
hearing consistent with this opinion.3

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