On Point blog, page 6 of 8
Ineffective Assistance of Counsel – Deficient Performance but non-Prejudicial
State v. David W. Domke, 2011 WI 95, reversing unpublished decision; for Domke: Martha K. Askins, SPD, Madison Appellate; case activity
Although Domke establishes deficient performance in several different respects, he fails to satisfy his burden of showing prejudice.
- Failure to object to hearsay testimony / medical treatment and diagnosis exception inapplicable to counselors and social workers.
Postconviction Proceedings – Expiration of Deadline for Ruling; Ineffective Assistance of Counsel – Voir Dire – Juror Bias
State v. Edward Beck, 2010AP872-CR, District 4, 10/20/11
court of appeals decision (1-judge, not for publication); pro se; case activity
Circuit court is under no obligation to seek extension of the § 809.30(2) limitation period for its ruling on a postconviction motion.
¶6 Beck reads too much into the 2001 amendment to Wis. Stat. § 809.30(2)(i). The amendment simply added language to § 809.30(2)(i) specifying the entities that may request an extension,
Ineffective Assistance of Counsel: Failure to Challenge Invalid DNA Search Warrant – Lack of Prejudice; Right to Present Defense: DNA Evidence
State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity
Ineffective Assistance of Counsel – DNA Search Warrant
Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:
¶10 Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here,
Habeas – Ineffective Assistance – Sleeping Counsel
Joseph Muniz v. Smith, 6th Cir. No. 09-2324, 7/29/11
sixth circuit court of appeal decision
Habeas – Ineffective Assistance – Sleeping Counsel
The fact that counsel has slept through a portion of trial does not, alone, amount to denial of counsel so as to require relief under United States v. Cronic, 466 U.S. 648 (1984), rather than inquiry into the prejudice component of Strickland v.
Habeas – Jury Selection – Ineffective Assistance –
MC Winston v. Boatwright, 7th Cir No. 10-1156, 8/19/11
seventh circuit court of appeals decision, denying habeas relief on review of unpublished decision in 2003AP3412 and 2005AP1255
Habeas – Jury Selection – Ineffective Assistance – Defense Counsel’s Discriminatory Use of Peremptories
In a nutshell, this case presents the question whether the constitutional rights of the petitioner, MC Winston,
Entitlement to Machner Hearing
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.
Habeas – IAC – NGI Defense
Albert Price v. Thurmer, 7th Cir No. 09-3851, 4/18/11
7th circuit court of appeals decision, on remand after prior appeal, 514 F.3d 729, denying relief on review of unpublished decision of Wis COA
Habeas – IAC – NGI Defense
Trial counsel seemingly mishandled the court-appointed NGI expert, in failing to cure the latter’s apparent misapprehension that he couldn’t rely on eyewitness reports of Price’s behavior absent determination of their credibility by the trial judge.
Expert Opinion – “Jensen” Testimony – Failure to Object; Comment on Another Witness’s Truthfulness – Failure to Object;Ineffective Assistance – Prejudice
State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10
court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply
Expert Opinion – “Jensen” Testimony – Failure to Object
An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s,
Habeas – Effective Assistance – Stun Belt
John M. Stephenson v. Levenhagen, 7th Cir No. 09-2924, 08/26/2010
7th Cir decision; petition for rehearing denied 1/14/11, 3 dissents from denial of en banc review
Habeas – Effective Assistance – Stun Belt
Counsel’s failure to object to placement of stun belt on Stephenson during trial was held by the state court to be deficient: accepting that conclusion (albeit with apparent reluctance), the federal court holds on habeas review that the deficiency wasn’t prejudicial.
Evidence / IAC: Comment on Refusal to Provide DNA; Instruction: Recording Policy Interrogation; Impeachment: Prior Convictions
State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply
Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance
Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel,