On Point: D. Ineffective Assistance

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court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply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;

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.

State v. John M. Anthony, 2009AP2171-CR, District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Br.

Motion to withdraw Plea, Pre-Sentence

Based on trial court findings that Anthony decision to plead no contest was based on his attorney’s informed assessment that he was likely to be found guilty if he went to trial, the court of appeals rejects his claim that he was coerced into pleading by counsel’s lack of preparation and holds instead that he failed to establish a “fair and just”

State v. Morris L. Harris, 2009AP2833-CR,  District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Lesser-Included Instruction – Battery

Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,

decision below: unpublished; for Harbor: Joseph E. Redding; court of appeals briefs: BiC; Resp.; Reply

Issues (from Table of Pending Cases):

Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

Whether a defendant demonstrated ineffective assistance of counsel under Strickland v.

7th circuit court of appeals decision

Habeas – Napue Issue

The Supreme Court has held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959) …. Thus, a new trial is required if a petitioner establishes that (1) the prosecution presented false testimony or failed to disclose that false testimony was used to convict,

decision below: summary order (not posted); case information here; prior appeal: 2001AP2527-CR; for Balliette: Steven D. Grunder, SPD, Madison Appellate

Issue (from AG’s petition for review):

Is an evidentiary hearing into the effectiveness of post-conviction counsel required in every case where the § 974.06 motion merely makes the conclusory allegation that post-conviction counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct review?

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.

State v. Jesenia R., 2009AP2906, District 1, 8/24/10

court of appeals decision (1-judge, not for publication); for Jesenia R.: Mary D. Scholle, SPD, Milwaukee Appellate

No prejudice resulted from counsel’s failure to object to violation of the change-of-placement notice requirement in § 48.357. ¶¶15-16.

The background is a bit fact-intensive. Roughly: The child (Elizabeth) had been placed with a foster family, who moved to Idaho and took Elizabeth with them,

State v. Jacquese Franklin Harrell, 2010 WI App 132; for Harrell: Michael S. Holzman; BiC; Resp.; Reply

Terry Frisk – House

The police had both reasonable suspicion that Harrell had committed a violent crime, and consent to be in his house to question him. Therefore, police inspection of a chair for possible weapons before allowing Harrell to sit in it,