On Point blog, page 1 of 1
Seventh Circuit’s rare habeas grant notes COA misapplication of Strickland and upbraids state for false claims about the record
Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020
Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.
Court scolds State for shoddy advocacy, holds alleged “stop” was actually an arrest without probable cause
State v. Thomas J. Anker, 2014 WI App 107; case activity
If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.
Court of appeals affirms sentence aimed at holding defendant for trial in different county; accuses counsel of lacking candor
State v. Rodney Vincent McToy, 2013AP832-CR, District 1, 10/15/13, (1-judge; ineligible for publication); case activity
McToy pled guilty to two charges of misdemeanor bail jumping stemming from a domestic dispute with Ms. H. The parties briefed a straightforward Gallion issue: Did the Milwaukee County Circuit Court erroneously exercise its discretion when it failed to provide a “rational and explainable basis” for the sentence it imposed—200 days in jail for one count and 2 years probation for the other?
Exasperated, District 3 penalizes all parties to appeal
Loren H. Laufman v. North Central Power Co., Inc., 2012AP2116, District 3 (per curiam; not eligible for publication or citation).
Normally, On Point would not trouble its readers with a per curiam decision involving insurance coverage issues. This one, however, penalizes parties for violations of Wisconsin’s Rules of Appellate Procedure, so appellate lawyers of all stripes should pay attention. Skipping over the substantive insurance issues,
Briefs – Factual Assertions – Need for Accuracy
Arents v. ANR Pipeline Co., 2005 WI App 61
Issue/Holding: ¶5 n. 2:
Wisconsin Stat. Rule 809.19(1)(d) and (e) (2001-02) requires the parties to provide in their briefs separate sections for their “statement of facts relevant to the issues presented for review” and argument. In their appeal, the Landowners have, inappropriately, interspersed legal argument and “spin” into what should have been an objective recitation of the factual occurrences of this case.