On Point: f. Retroactivity

State v. Robert E. Hammersley, 2018AP1022, District 3, 7/30/19 (one-judge decision; ineligible for publication); case activity (including appellant’s brief)

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), doesn’t provide a basis to void the revocation of Hammersley’s driver’s license back in 1995 for refusing a blood alcohol test after his OWI arrest.

State v. Bruce C. Brenizer, 2015AP2181, District 3, 6/6/17 (not recommended for publication); case activity (including select briefs)

The Department of Health Services didn’t have authority to transfer Brenizer to the Department of Corrections because the circuit court’s commitment order unambiguously states that Brenizer is committed to DHS custody for life unless his custody is terminated under § 971.17(5) (1991-92).

Questions presented:

I. Whether the District Court was in error when it denied relief on Petitioner’s §2255 motion to vacate, which alleged that a prior Florida conviction for “sudden snatching,” did not qualify for ACCA enhancement pursuant to 18 U.S.C. §924(e).

II. Whether Johnson v. United States, 135 S. Ct. 2551 (2015), announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. Furthermore, Petitioner asks this Court to resolve the Circuit split which has developed on the question of Johnson retroactivity in the Seventh and the Eleventh Circuit Courts of Appeals.

Question Presented (from cert petition): 

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

seventh circuit court of appeals decision; cert granted, 4/30/12

Padilla v. Kentucky: Retroactivity – Habeas Review 

The holding of Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), that as in incident of effective representation, “counsel must inform her client whether his plea carries a risk of deportation,” is a “new rule”

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. Olayinka Kazeem Lagundoye, 2004 WI 4, affirming 2003 WI App 63, 260 Wis. 2d 805, 659 N.W.2d 501
For Lagundoye: Geoffrey Y. Muwonge

Issue/Holding:

¶26. Likewise, it is clear that under Wisconsin’s formulation of the Teague doctrine, the rule we announced in Douangmala was “new.” “‘[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.’” 

State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals
For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School

Issue/Holding: Retroactivity on collateral attack of a  “new” rule– one imposing a new obligation on the state and not dictated by prior precedent – must satisfy the test of Teague v.