On Point

7th Circuit decision

Habeas – Procedural Default

“Adequate presentation of a claim requires a petitioner to present both the operative facts and the legal principles that control each claim to the state judiciary.” (Quoting, Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007).) Suh procedurally defaulted his theory of recusal based on the appearance of bias, where it was different from the theory of actual bias he presented to the state court.

Harrington v. Richter, USSC No. 09-587, 1/19/11, reversing grant of habeas relief, in 578 F. 3d 944

The 9th Circuit failed to give sufficient deference to the state court’s determination that Richter received adequate representation, requiring reversal of it grant of AEDPA-2254 habeas relief. The principal thrust of the opinion relates to the standard of review, both as to AEDPA habeas generally and ineffective-assistance claims more particularly.

court of appeals decision (1-judge, not for publication); for Sagen: Charles W. Giesen, Jessica Jean Giesen; case activity; Sagen BiC; State Resp.; Reply

Traffic Stop – Community Caretaker

A yell from inside a passing truck justified a stop under the community caretaker doctrine.

¶13      We conclude that the facts as found by the circuit court satisfy this objective standard.  

Heather B. v. Jennifer B., 2011 WI App 26; for Jennifer B.: Martha K. Askins, SPD, Madison Appellate; case activity

Where abandonment as a ground for termination, § 48.415(1)(a)2., is triggered by removal from the home under a CHIPS order, the 3-month period of abandonment must fall completely within the duration of the CHIPS placement order. Here, because the alleged abandonment period began two weeks before the end of the CHIPS placement order,

Premo v. Moore, USSC No. 09-659, 1/19/11, vacating grant of habeas relief, in 574 F.3d 1092

Moore, who admitted brutalizing the victim and shooting him in the temple, accepted a plea bargain on advice of counsel: he pleaded guilty to felony-murder, and received the minimum allowable sentence, thus avoiding a capital-offense charge. He raised a postconviction challenge to counsel’s failure to seek suppression of his statement to the police,

State v. Terry L. Kletzien, Jr., 2011 WI App 22; for Kletzien: James A. Rebholz; case activity; Kletzien BiC; State Resp.; Reply

In a prior appeal, Kletzien unsuccessfully challenged denial of postconviction discovery,  2008 WI App 182. (See, e.g., State v. O’Brien, 223 Wis. 2d 303,

State v. Michael S. L., 2010AP2352, District 2, 1/19/11

court of appeals decision; for Michael S.L.: Leonard D. Kachinski; case activity

Restitution order of 200 hours’ community service, on adjudication for disorderly conduct for “prank”  bomb threat to school, and based on school’s estimate of economic loss due to evacuating students and staff for the bomb scare, was within juvenile court’s authority. Although Michael S.L. did not admit to making the threats himself,

State v. Justin J., No. 2010AP1796, District 3, 1/19/11

court of appeals decision  (1-judge, not for publication); for Justin J.: Shelley Fite, SPD, Madison Appellate; case activity

Secure detention of 30 days was proper exercise of discreiton:

¶10      In this case, the factors the court considered and its statements show that the court used a “rational and explainable” process to determine the thirty days’ secure detention. 

7th circuit decision, reversed, Hardy v. Cross, USSC No. 11-74, 12/12/11

Habeas Review – Confrontation – Pre-Crawford (Ohio v. Roberts) Showing of Witness Unavailability

The state court (Illinois) unreasonably applied controlling Supreme Court precedent in finding good-faith efforts to secure the presence of the declarant, before determining that she was unavailable so that her first-trial testimony could be read to the jury at Cross’s re-trial.

decision below: unpublished; for Kandutsch: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Issues (formulated by On Point):

Whether admission into evidence of electronic monitoring daily summary reports requires expert testimony to lay a foundation as to accuracy and reliability.

Whether the daily summary reports fall outside the definition of hearsay because they don’t represent assertions made by a person.

Kandutsch, while under electronic monitoring,