On Point: D. Ineffective Assistance

State v. Kendrick L. Lee, 2011AP2126-CR, District 4, 3/28/12; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel — failure to present evidence, ineffective cross examination

In a necessarily fact-intensive discussion that defies quick summary here, the court of appeals concludes Lee’s trial attorney was not ineffective for failing to present two categories of additional evidence or in her cross examination of one of the state’s witnesses.

State v. Mark J. Libecki, 2013 WI App 49; case activity

Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy

In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record,

State v. Gloria C., 2012AP1693 and 2012AP1694, District 1, 2/5/13; court of appeals decision (1-judge, ineligible for publication); case activity

Trial counsel was not ineffective for failing to object to the opinion testimony of the parent’s ongoing case manager, who said that based on the parent’s conduct in the preceding two years, she would not be able to meet the conditions necessary for the return of her children within nine months.

State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication).   Case activity.

Lehman pled guilty to 2 counts of burglary of a dwelling.  The trial court sentenced him to 5 years of initial confinement and 3 years of extended supervision for each count.  The court ran the sentences consecutively, ordered Lehman to pay $1,700 in restitution, and declared him ineligible for the Challenge Incarceration and Earned Release programs.  

State v. Douglas H. Stream, Case No. 2011AP2051, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity

The circuit court properly denied the defendant’s Wis. Stat. § 974.06 postconviction motion, which claimed that his trial  lawyer was ineffective for not objecting to references to the truthfulness of his confession during a Goodchild hearing to determine voluntariness of the confession and that his postconviction lawyer was ineffective for failing to challenge his trial lawyer’s effectiveness.

Questions Presented:

This case presents three questions involving· AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), this Court’s recent decision expanding ineffective-assistance-of-counsel claims to include rejected plea offers:

1. Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under AEDPA in holding that defense counsel was constitutionally ineffective for allowing Respondent to maintain his claim of innocence.

State v. Willie M. McDougle, 2013 WI App 43; case activity

Failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist

Trial counsel was not ineffective for failing to object on confrontation clause grounds to either the opinion testimony of the pathologist who did not conduct autopsy or the reports of pathologist who did conduct the autopsy because any failure to object was not prejudicial:

¶17      …[T]rial counsel’s decision not to object to Dr.

State v. Jesus C. Villarreal, 2013 WI App 33; case activity

Trial counsel was ineffective because he had an actual conflict of interest arising from his dual representation of both Villareal and a defense witness who had testified at Villarreal’s first trial (which ended in a hung jury ) and who, before the second trial, was accused of committing perjury during the first trial.

The witness was Villarreal’s sister,

State v. Jeremiah J. Purtell, 2012AP1307-CR, District 2, 3/7/13  (not recommended for publication); petition for review granted 11/20/13.  Case activity.

This case concerns a probation agent’s search of the defendant’s computers.  Following a conviction for 2 counts of animal cruelty, a court placed the defendant on probation and imposed a condition that he not own or possess a computer. 

Martin Woolley v. Rednour, 7th Cir No. 10-3550, 12/14/12

seventh circuit decision

Habeas Review – Issue Left Unaddressed by State Court

Where, on state (Illinois) postconviction review of an IAC claim, the trial court ruled that counsel’s performance had been deficient but not prejudicial, and the state appellate court affirmed solely on the basis of prejudice without reaching deficient performance, habeas review of counsel’s performance is de novo (that is,