On Point: 4. Litigating IAC

David M. Siegel, “What (Can) (Should) (Must) Defense Counsel Withhold from The Prosecution in Ineffective Assistance of Counsel Proceedings?,” The Champion, Vol. 18, No. 35, December 2011 

Must-read exegesis of ABA Formal Opinion 10-456, for anyone litigating, or on the business end of, an ineffective-assistance claim. Some highlights:

• “The attorney-client privilege and the obligation of confidentiality continue beyond the representation, and while a former client’s IAC claim impliedly waives the privilege with respect to allegations concerning lawyer-client communications,

State v. Kwesi B. Amonoo, 2011AP566, District 1, 1/24/12

court of appeals decision (not recommended for publication); for Amonoo: Robert N. Meyeroff; case activity

Amonoo fails to show that trial counsel provided ineffective assistance with respect to pretrial identification procedure (context: “sufficient reason” to overcome serial litigation bar following direct appeal):

¶15      Amonoo contends that of all the persons pictured in the photo array, he was the only one wearing a jacket.  

State v. Joseph J. Johnson, 2011AP806-CR, District 4, 11/3/11

court of appeals decision (1-judge, not for publication); for Johnson: Rebecca J. Vahle; case activity

Trial counsel’s failure to move to strike several jurors for cause didn’t require Machner hearing:

¶12      In State v. Traylor, 170 Wis. 2d 393, 399-400, 489 N.W.2d 626 (Ct. App. 1992), this court held that a defendant’s trial counsel was deficient for failing to ask appropriate follow-up questions of jurors who had admitted 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court of appeals decision (1-judge, not for publication); pro se; case activity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,

State v. David J. Balliette, 2011 WI 79, reversing unpublished decision; for Balliette: Steven D. Grunder, SPD, Madison Appellate; case activity

Balliette’s pro se § 974.06 motion, asserting ineffective assistance of postconviction counsel for failing to raise ineffective assistance of trial counsel on direct appeal, was insufficiently pleaded to require an evidentiary hearing.

Unless you’re an appellate specialist or a masochist –

Docket

Decision below:  Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010)

Question Presented:

Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first postconviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.

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.

State v. Derek J. Copeland, 2011 WI App 28; for Copeland: David Leeper; case activity

Trial court has discretion under § 906.15(3) to order an attorney not to discuss with a sequestered witness who hasn’t yet testified the testimony of other witnesses; this authority extends to barring counsel from providing the sequestered witness with a transcript of prior-witness testimony. The trial court in this instance misperceived a lack of such authority,

State v. Sidney Clark, 2010AP790, District 1, 2/23/11

court of appeals decision (not recommended for publication); for Clark: John A. Pray; case activity

Clark can’t show prejudice from the deficient performance he alleges, therefore he isn’t entitled to a Machner hearing on ineffective assistance of counsel.

¶21      A postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel.  See State v.

State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11

court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.

Ineffective Assistance Claim – Necessity of Motion

Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.

Entrapment – Child Sex Crime with Computer

Challenge to sufficiency of evidence to negate entrapment defense rejected,