On Point: D. Ineffective Assistance

court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.

Ineffective Assistance
Machner hearing not required because record “conclusively demonstrates” no deficient performance; nor can prejudice be shown from asserted deficiency.

7th circuit court of appeals decision

Habeas – Ineffective Assistance – Extraneous Juror Influence
1. Where both defendant and homicide victim were African-American, in-court proclamation from latter’s mother that “the situation is racist” is deemed to be “ambiguous and apparently innocuous.” It follows that counsel’s failure to pursue the matter was reasonable.

Remmer v. United States, 347 U.S. 227 (1954) (unauthorized extraneous contact with juror creates presumption of prejudice and thus requires hearing),

Wisconsin supreme court decision; below: certification; for Wood: Kristin E. Lehker; for amicus, Disability Rights Watch: Kristin Kerschensteiner; Supp. App. Br.; Supp. Resp.; Supp. Reply

¶13      A party may challenge a law or government action as being unconstitutional on its face.  Under such a challenge, the challenger must show that the law cannot be enforced “under any circumstances.” 

court of appeals decision (1-judge, not for publication) BiC; Resp. Br.; Reply Br.

Traffic Arrest
Probable cause to believe Broad drove on public roadway, hence to arrest for OWI, where car was found off the road, Broad was in driver’s seat and admitted to being driver, car “was warm and running.”

Right to Testify
Violation of rule requiring contemporaneous colloquy as to waiver of right to testify at trial doesn’t lead to automatic reversal of conviction;

7th Circuit decision

Terry Stop / Frisk
1. Pulling up in a patrol car and telling Gentry to keep his hands up amounted to a stop for purposes of Terry analysis.

2. The stop, which was based on a report of a “suspicious person,” without reference to any specific facts concerning a crime, was not supported by reasonable suspicion to believe Gentry had either committed a crime or was armed.

court of appeals decision (3-judge; not recommended for publication); Resp.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

Exculpatory Material
Defense had access to assertedly suppressed exculpatory material, hence no Brady violation.

Effective Assistance
Counsel had valid tactical reason for cross-examination approach; failure to file discovery demand, object to certain testimony: “The defendant must affirmatively prove prejudice. … Walker has not even attempted to do so.

court of appeals decision (3-judge; not recommended for publication)

Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.

Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.

Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.

court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.

Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:

Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,

7th Circuit decision, denying relief in: Wis COA No. 2003AP1885

Habeas – Effective Assistance of Counsel – Lesser Included Instruction
Given state court conclusion that Lopez was not entitled to lesser offense instruction on felony-murder, counsel could not have been ineffective for failing to request the instruction. Nor was the absence of the instruction “a fundamental miscarriage of justice,” because there is no showing “that Lopez probably would have been acquitted of first-degree intentional murder.”

court of appeals decision, affirmed, 2011 WI 27; for Beauchamp: Martin E. Kohler, Craig S. Powell; case activity

Dying Declaration, § 908.045(3)

¶8        …  dying declaration, codified in Wisconsin Stat. Rule 908.045(3): “A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.” Under established law,