On Point: D. Ineffective Assistance

State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity

Sentence Modification – New Factor

The “new factor” test for sentence modification has split into “two divergent lines of cases”: Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (fact(s) highly relevant to, but not brought out at, 

State v. Marvin L. Beauchamp, 2011 WI 27, affirming 2010 WI App 42; for Beauchamp: Craig S. Powell; case activity

Confrontation – Dying Declaration, § 908.045(3)

¶34  We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. 

State v. Darron D. Jackson, 2011 WI App 63 (recommended for publication); for Jackson: Rebecca Lawnicki; case activity

Waiver – Lesser Offense Instruction

The jury convicted Jackson of recklessly endangering safety while armed, which was submitted as a lesser offense of the charged offense, attempted first-degree intentional homicide. Although Jackson did object to the endangering instruction on the ground that it wasn’t supported by the facts,

Albert Price v. Thurmer, 7th Cir No. 09-3851, 4/18/11

7th circuit court of appeals decision, on remand after prior appeal, 514 F.3d 729, denying relief on review of unpublished decision of Wis COA

Habeas – IAC – NGI Defense

Trial counsel seemingly mishandled the court-appointed NGI expert, in failing to cure the latter’s apparent misapprehension that he couldn’t rely on eyewitness reports of Price’s behavior absent determination of their credibility by the trial judge.

Cullen v. Scott Lynn Pinholster, USSC No. 09-1088, 4/4/11

We first consider the scope of the record for a §2254(d)(1) inquiry. The State argues that review is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster contends that evidence presented to the federal habeas court may also be considered. We agree with the State.

…

We now hold that review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.

William Kerr v. Thurmer, 7th Cir No. 09-1032, 3/28/11 – Part III

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part II (default; standard of review),

William Kerr v. Thurmer, 7th Cir No. 09-1032, 3/28/11 – Part I

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part II (procedural default) is here; Part III (evidentiary hearing, guilty plea advice),

Gordon Sussman v. Jenkins, 7th Cir No. 09-3940, 4/1/11

7th circuit decision, granting habeas relief in State v. Sussman, 2007AP687-CR; in chambers opinion on stay

Habeas – Confrontation – Rape Shield and Prior False Allegation

The state court unreasonably restricted Sussman’s cross-examination of his chief accuser, and thus violated his right to confrontation, by precluding him from inquiring into the complainant’s prior false allegations of sexual misconduct.

State v. Christopher Donnell Jones, 2010AP164-CR, District 1, 3/29/11

court of appeals decision (not recommended for publication); for Jones: Melinda A. Swartz, SPD, Milwaukee Appellate; case activity

Counsel’s failure to impeach police officers with their reports, which omitted certain details they testified to, wasn’t prejudicial. Therefore, the postconviction court properly denied relief without holding a Machner hearing.

¶18 We disagree.  The omission of these reports did not prejudice Jones’s case. 

State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Preservation of Issue – Motion in Limine

Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.