On Point: 1. Appeals

Docket

Decision below:  Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010)

Question Presented:

Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first postconviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.

7th circuit court of appeals decision

Retroactive Application of Case Law, on Collateral Review

Narvaez’s federal ACCA enhancement, imposed in 2003, is now unsupportable in light of subsequently-decided Supreme Court authority (Begay v. U.S.; Chambers v. U.S.). He may therefore seek relief against the sentencing enhancement via 28 U.S.C. § 2255: the case law development worked a change in “substantive liability”

State v. Jimmie C. Grayer, 2010AP1749-CR, District 1, 6/1/11

court of appeals decision (not recommended for publication); for Grayer: Bridget E. Boyle; case activity

Postconviction denial of ineffective assistance of counsel challenge without Machner hearing upheld.

1. Although counsel performed deficiently by inaccurately telling the jury in his opening statement that Grayer’s in-custody had not been recorded by the police, Grayer wasn’t prejudiced by the deficiency.

State v. Dustin M. Przybylski, 2011AP1-CR, District 2, 6/1/11

court of appeals decision (1-judge, not for publication); for Przybylski: Michael S. Holzman; case activity

OWI sentence consecutive to unrelated 15-year sentence upheld, despite joint recommendations of concurrent time, against argument it was fashioned mechanistically rather than as exercise of discretion, State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App.

Kevin S. Dalka v. American Family Mutual Ins. Co., 2010AP1428, District 2, 5/24/11

court of appeals decision (recommended for publication); case activity

¶5        Dalka forfeited his right to appellate review of the order compelling him to accept the settlement offer.  …  It is a fundamental principle of appellate review that issues must be preserved in the circuit court.  State v. Huebner, 2000 WI 59,

State v. Crystal P. Keith, 2010AP1667-CR, District 1, 5/24/11

court of appeals decision (not recommended for publication); for Keith: John A. Pray; case activity

On Keith’s conviction for reckless homicide in beating death of foster son, statements of her biological daughter (such as, “Why does mama have to go to jail for what my daddy did”) didn’t satisfy the test for newly discovered evidence. Keith’s confession to the police “was so detailed”

On Point is very pleased to publish this guest post by Attorney Michael B. Brennan, currently practicing with Gass Weber Mullins LLC, and formerly a Milwaukee County Circuit Court judge. Mr. Brennan offers his thoughts on the fractured decision of the supreme court in State v. Forbush, 2011 WI 25. On Point invites readers to submit comments to this post, in the box below.

As Dean Kearney pointed out in an interesting speech he gave to the Western District of Wisconsin bar association,

State v. Deshon C. Matthews, 2011 WI App 92 (recommended for publication); for Matthews: Paul G. Bonneson; case activity

Terry Stop – Reasonable Suspicion

Reasonable suspicion supported stop of Matthews, when police on patrol saw him wearing a ski mask and hoodie late at night in a high-crime area near a woman who was walking away form him and who appeared to be frightened.

State v. Marilee Devries, 2011 WI App 78 (recommended for publication); for Devries: Matthew S. Pinix; case activity

OWI – Repeater – Proof, Prior “Conviction”

Certified copies of proceedings in foreign jurisdictions established adequate proof of prior OWI “connvictions,” § 343.307(1)(d).

¶9        When Wisconsin’s driving laws provide for the enhancement of penalties for a current offense based on prior offenses, the State must present “‘competent proof’” of those earlier offenses.  

State v. Isaac Hughes, Sr., 2011 WI App 87 (recommended for publication); for Hughes: Benbow P. Cheesman, Jr.; case activity

Conviction for escape, § 946.42(3), may be sustained even if the jury never actually saw the judgment of conviction that landed the defendant in custody.

¶12      We agree with the trial court that, when considered in light of all the other evidence adduced at trial,