On Point: D. Ineffective Assistance

seventh circuit decision

Habeas – Knowing Use of False Testimony (“Napue”) 

Due process prohibits knowing prosecutorial use of false testimony, Napue v. Illinois, 360 U.S. 264, 269 (1959). However, the prosecutor’s exploitation of Bland’s incorrect testimony on a potentially important point (the date his gun was confiscated) doesn’t support habeas relief on a Napue-type theory.

Napue and Giglio hold that a prosecutor may not offer testimony that the prosecutor knows to be false.

Marilyn Mulero v. Thompson, 7th Cir No. 10-3875, 2/7/12

seventh circuit decision

Habeas – Procedural Bar 

Muleros’ failure to present various claims “through one complete round of state court review” operates as procedural default; citing, Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).

… While Mulero did present numerous other claims of ineffective assistance of counsel to the Illinois state trial court and in her petition for review to the Illinois Supreme Court,

7th circuit decision, imposing discipline 

Sanctions – Abandonment of Client 

It is apparent from this final motion for additional time that Boyle-Saxton elected to put work for other clients ahead of her obligations to Rodriguez and this court. That is unprofessional; lawyers have an ethical obligation to take no more work than they can perform. …

…

She is unfit to practice law in this court.

Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12

court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity

Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.

 ¶6        Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.  

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court of appeals decision (not recommended for publication); for Amonoo: Robert N. Meyeroff; case activity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

Dane Co. DHS v. Johnny S., 2011AP1659, District 4, 12/22/11

court of appeals decision (1-judge, not for publication); for Johnny S.: Dennis Schertz; case activity

¶7        Johnny contends he was not able to meaningfully participate at the trial for three reasons.  First, he appeared by telephone, not videoconference, and he did not waive his right to appear by videoconference.  Second, he could not hear what was being said during trial. 

State v. Anthony L. Prineas, 2012 WI App 2 (recommended for publication), reissued after initial decision withdrawn; for Prineas: Robert R. Henak; case activity; prior history: State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 NW.2d 206

Evidence – Prior Inconsistent Statements 

Evidence of complainant KAC’s statements made during an alleged sexual assault were admissible as prior inconsistent statements,

State v. Tijuan L. Walker, 2010AP2587-CR, District 1, 11/29/11

court of appeals decision (not recommended for publication); for Walker: Matthew S. Pinix; case activity

Walker was tried for and convicted of injury by intoxicated use of a vehicle, § 940.25(1)(a), after his car collided with DeAnn Braggs’. A form accompanying the post-accident test kit containing Braggs’ blood (which had little or no alcohol content) noted that the vials of blood were labeled “Walker,

Dawn H. v. Pah-Nasa B., 2011AP1198, District 3, 11/29/11

court of appeals decision (1-judge, not for publication); for Pah-Nasa B.: Lora B. Cerone, SPD, Madison Appellate; case activity

Given the proof of lack of parental responsibility as a ground for terminating Pah-Nasa’s rights, counsel’s failure to object to testimony about a fight between Pah-Nasa and his mother wasn’t prejudicial.

¶14      We conclude Pah-Nasa has failed to prove prejudice,

Gregory L. Payne v. Basinger, 7th Cir No. 10-1869, 11/10/11

seventh circuit decision

Ineffective Assistance of Counsel – Guilty Pleas – Prejudice 

The state court erroneously concluded that, because Basinger would have been convicted anyway had he gone to trial, he suffered no prejudice from counsel’s erroneous advice as to the maximum sentence he faced on acceptance of the plea bargain:

That was a mistake.