On Point blog, page 21 of 22
Sentence Modification – New Factor: Test / Mental Health Background; Counsel – Effective Assistance – Sentencing
State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity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,
Habeas – IAC – NGI Defense
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7th circuit court of appeals decision, on remand after prior appeal, 514 F.3d 729, denying relief on review of unpublished decision of Wis COA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.
IAC Claim – Lack of Prejudice
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court of appeals decision (not recommended for publication); for Jones: Melinda A. Swartz, SPD, Milwaukee Appellate; case activity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.
Machner Hearing; Mistrial
State v. Sidney Clark, 2010AP790, District 1, 2/23/11
court of appeals decision (not recommended for publication); for Clark: John A. Pray; case activity
Clark can’t show prejudice from the deficient performance he alleges, therefore he isn’t entitled to a Machner hearing on ineffective assistance of counsel.
¶21 A postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel. See State v.
Counsel: Request for Substitute – Effective Assistance (Disclosure of Communications, et al.); Double Jeopardy: Bail Jumping
State v. Demetrius M. Boyd, 2011 WI App 25; for Boyd: Rebecca Robin Lawnicki; case activity; Boyd BiC; State Resp.; Reply
Request for New Counsel
An indigent defendant doesn’t have the right to counsel of choice, but does have the right to counsel with whom he or she can communicate effectively. When an indigent defendant requests change of counsel,
Habeas Review – Ineffective Assistance of Counsel – Deference Must Be Given State Court Determination
Harrington v. Richter, USSC No. 09-587, 1/19/11, reversing grant of habeas relief, in 578 F. 3d 944
The 9th Circuit failed to give sufficient deference to the state court’s determination that Richter received adequate representation, requiring reversal of it grant of AEDPA-2254 habeas relief. The principal thrust of the opinion relates to the standard of review, both as to AEDPA habeas generally and ineffective-assistance claims more particularly.
Expert Opinion – “Jensen” Testimony – Failure to Object; Comment on Another Witness’s Truthfulness – Failure to Object;Ineffective Assistance – Prejudice
State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10
court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply
Expert Opinion – “Jensen” Testimony – Failure to Object
An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s,
Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References
State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply
Ineffective Assistance – Inconsistent Defenses
Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.
¶15 First,
Habeas – Effective Assistance – Stun Belt
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.
Terry Frisk – House; Ineffective Assistance – Prejudice
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,