On Point: 1. Appeals

Question Presented:

May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?

Docket: 09-9000

• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Scotusblog analysis notes,

U.S. v. Marcus, USSC No. 08-1341, 5/24/10

… (A)n appellate court may,in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness,

decision below: unpublished (2009AP118); for Burns: David R. Karpe

Issue:

Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?

court of appeals decision (1-judge; not for publication); pro se; Resp. Br.

Custody Requirement, sec. 974.06

¶7        However, Olson is barred from collaterally attacking his criminal conviction under Wis. Stat. § 974.06 because he is no longer “‘in custody under sentence of a court.’”  See State v. Theoharopoulos, 72 Wis. 2d 327, 329, 240 N.W.2d 635 (1976) (quoting § 974.06 and recognizing that circuit court lacks jurisdiction to consider a motion for postconviction relief brought under § 974.06 if the defendant has completed his sentence). 

supreme court decision; BiC; Resp.; Reply

Court of Appeals Authority to Declare Dicta

¶57     By concluding that a statement in a supreme court opinion is dictum, the court of appeals necessarily withdraws or modifies language from that opinion, contrary to our directive in Cook. …

¶58     If the court of appeals could dismiss a statement in a prior case from this court as dictum,

court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.

Serial Litigation Bar
Collins’ § 974.06 motion is procedurally barred by his failure to allege a “sufficient reason” for not previously raising issues as part of his prior, no-merit appeal, ¶1.

Bit more interesting than that, in the following sense: the court not only pays lip service to the idea that it “must pay close attention to whether the no merit procedures were followed,”

court of appeals decision; ror Lewis: John T. Wasielewski; Resp. Br.; Reply Br.

Appellate Procedure – Standard of Review: Government Informant

¶16      Our discussion must begin, as it almost always does, with the standard of review.  In deciding whether a person is a government informant or agent for purposes of this Sixth Amendment analysis, the determination regarding the relationship or understanding between the police and the informant is a factual determination.

Questions Presented:

May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?

SCOTUS docket: here. Scotusblog, briefs: here.

This have anything to do with SPD-related practice? Not really, strictly speaking. But, isn’t the problem at least somewhat reminiscent of the recurrent one based in State v.

court of appeals decision (1-judge, not for publication); for Keri H.: Leonard D. Kachinski

IAC Claim – TPR
“The decision not to emphasize events preceding the current termination petitions was a reasonable strategic choice and does not constitute ineffective assistance of counsel,” ¶11. Separately: counsel did not perform deficiently in his efforts to obtain Keri H.’s client file from predecessor counsel, and then securing an adjournment to prepare for trial,

court of appeals decision (1-judge; not for publication); for Knapp: David M. Helmke; BiC; Resp.

Harmless Error – Prior Conviction
Inadmissible testimony suggestive of a prior conviction (Knapp’s statement upon arrest “that he was going to jail again”) was non-prejudicial: Knapp himself testified he had a prior conviction and nothing in the inadmissible testimony indicated the nature of the prior.