On Point: 1. Deficient performance

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.

State v. Sabian L. Yunck, 2009AP3020-CR, District 1, 8/17/10

court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply

Sentence – Factors – Exercise of Constitutional Right

Convicted of violating a domestic abuse order forbidding contact with the mother of his child, Yunck argues that sentence was impermissibly based on his exercise of a constitutional right,

court of appeals decision (3-judge, not recommended for publication); for Lang: Mary D. Scholle, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Search Warrant – Probable Cause

Affidavit by a detective, containing statements made by a recently arrested “informant” who said that “Troy” at the target residence had traded him cocaine for stolen property, supplied probable cause for the warrant application. The informant’s reliability was established by:

• statement’s against-interest nature;

Dane Co. DHS v. Laura E.N., No. 2010AP1172, District 4, 7/29/10

court of appeals decision (1-judge, not for publication); for Laura E.N.: Jean K. Capriotti

TPR – Evidence

Evidence that the mother was caring for an infant son not under CHIPS order wasn’t relevant to her ability to meet conditions for the return of her older daughters who were the subjects of the TPR proceeding, ¶¶13-16.

Alan Ward v. Deppisch, 7th Cir No. 08-2809, 07/23/2010

7th circuit decision, review of unpublished court of appeals decision

Habeas – Procedural Default

The state argues that Ward procedurally defaulted his claim because he failed to fairly present the Wisconsin courts with a federal issue, and the state courts ruled against Ward based on adequate and independent state law grounds. We disagree. A review of Ward’s postconviction motion before the state court shows that he fairly presented a federal issue.

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,

State v. Raymond A. Habersat, No. 2009AP976-CR, District I, 7/7/10

court of appeals decision (3-judge; not recommended for publication); for Habersat: Angela Conrad Kachelski; BiC; Resp.; Reply

Evidence – Extraneous Misconduct

On Habersat’s trial for first-degree sexual assault of a child, admission of evidence of his 1991 sexual assault of a child to establish motive and intent was a proper exercise of discretion,

seventh circuit court of appeals decision

Ineffective Assistance – NGI Defense – Habeas Review

Counsel performed deficiently by failing to: adequately prep his NGI expert witness, who had performed only a competency evaluation of Wilson and wasn’t given the opportunity for a reinterview with the distinct purpose of an NGI evaluation; present testimony of family members familiar with Wilson’s mental deterioration; and retain another expert.

Given the gravity of the charge against Wilson and the ample evidence that he was driven to kill Fischer by an insane delusion,

court of appeals decision (1-judge; not for publication); for Maceo: Brian C. Findley

TPR – Assume-Responsibility Ground

Evidence sufficient to support verdict on § 48.451(6) ground of failure to assume parental responsibility for child born prematurely with significant medical needs:

¶30     The trial court accurately concluded that the evidence it outlined was sufficient to support the jury’s verdict that Maceo failed to assume parental responsibility of Jalacea.

State v. Michael James Carter, 2010 WI 40

Wisconsin supreme court decision, reversing unpublished summary order; for Carter: John T. Wasielewski; BiC (State); Resp.; Reply

Counsel made a reasonable tactical decision not to search for admissibility of sexual conduct evidence as an exception to the rape shield law. Therefore, Carter can’t show deficient performance. Separately, this evidence wouldn’t have fallen within an exception anyway,