On Point blog, page 26 of 33
Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References
State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply
Ineffective Assistance – Inconsistent Defenses
Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.
¶15 First,
Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing
State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Guilty Plea – Withdrawal – Presentence
The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.
The particular grounds asserted – no factual basis for plea;
Herbert Johnson, Sr. v. Thurmer, 7th Cir No. 07-2628, 10/18/10
7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals
Habeas – Procedural Default & No-Merit Report
Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir.
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.
Sentence – Factors – Exercise of Constitutional Right; Sentence – Effective Assistance of Counsel
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court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply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,
State v. Troy Edward Lang, 2009AP2087-CR, District 1, 8/10/10
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;
TPR – Evidence; Hearsay; Effective assistance
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.
Habeas – Procedural default, Evidentiary hearing
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.
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,
Evidence – Extraneous Misconduct; Effective Assistance
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,