On Point blog, page 24 of 31
Stephen Toliver v. Pollard, 7th Cir No. 11-1577, 8/6/12
seventh circuit court of appeals decision, affirming habeas grant following remand in 539 F.3d 766 (further case history: here)
Habeas Review – Evidentiary Hearing
The rule of Cullen v. Pinholster, 131 S. Ct. 1388 (2011), that 2254(d)(1) review is limited to the state-court record, doesn’t apply where the state court didn’t address a component part of the claim (here,
Search & Seizure: Consent to Blood Draw – Test for Seizure of Person; Ineffective Assistance: Unobjected-to Evidence of Victim’s Character – No Prejduice
State v. Jason M. Jacobs, 2012 WI App 104 (recommended for publication); case activity
Search & Seizure – Consent – Blood Draw
Following a fatal traffic accident, Jacobs performed field sobriety tests well enough that he wasn’t placed under arrest, but he was asked to submit to a blood draw. Jacobs called his attorney, who advised him not to consent to the draw, but Jacobs nonetheless agreed to go to the hospital with an officer to have a blood test.
TPR – Federal / Wisconsin Indian Child Welfare Act
Jackson Co. DHS v. Robert H., 2011AP2783, District 4, 7/17/12
court of appeals decision (1-judge, ineligible for publication); case activity
Both federal and state Indian Child Welfare Acts require that termination of parental rights to an Indian child be supported by testimony of a qualified expert witness “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” 25 U.S.C.
Effective Assistance of Counsel – Sentencing
State v. Troy D. Jefferson, 2011AP1778-CR, District 1, 6/26/12
court of appeals decision (not recommended for publication); case activity
Counsel was ineffective for failing to inform the sentencing court “about Jefferson’s good character and positive social history.”
¶17 Specifically, trial counsel’s failure to inform the trial court about Jefferson’s good character and positive social history in any meaningful way was deficient because it was not,
Appellate Procedure: Waived Objection to Jury Instruction; Inaccuracy in Witness’s Accurate Criminal Record: Harmless Error; Defendant’s Right Not to Testify: Retrospective Hearing – State Satisfied Burden of Proof
State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity
Appellate Procedure – Waiver – Jury Instructions
Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance”
TPR – Summary Judgment on Grounds – Ineffective Assistance of Counsel
Michael B. v. Marcy M., 2011AP2846, District 2, 5/16/12
court of appeals decision (1-judge, not for publication); for Marcy M.: Jane S. Earle; case activity
By responding (inadequately) to a TPR motion for summary judgment on grounds with a letter rather than evidence such as an affidavit, counsel provided ineffective assistance.
¶10 We disagree that counsel’s performance was “not ineffective.” In the face of summary judgment that would deprive Marcy of a jury determination on her failure to assume parental responsibility,
Ineffective Assistance – Failure to Impeach
State v. Ralph S. Stewart, 2011AP1424-CR, District 1, 5/15/12
court of appeals decision (not recommended for publication); for Stewart: Byron C. Lichstein; case activity
Counsel’s failure to impeach police officers, with their own reported statements, was deficient:
¶17 While matters of trial strategy are generally left to counsel’s professional judgment, counsel may be found ineffective if the strategy was objectively unreasonable. See State v.
TPR – IAC – Lack of Prejudice
Oneida County Department of Social Services v. Scott H, 2011AP2599, District 3, 5/15/12
court of appeals decision (1-judge, not for publication); for Scott H.: Brian C. Findley; case activity; companion case: Oneida County Department of Social Services v. Amanda H., 2011AP2599
Notwithstanding trial counsel’s concession of no strategic reason for allowing the jury to view documents reciting Scott’s “history of violent behavior,”
TPR – Severance; IAC – Lack of Prejudice; Grounds: Failure to Assume Parental Responsibility – Constitutionality
Oneida County Department of Social Services v. Amanda H, 2011AP2600, District 3, 5/15/12
court of appeals decision (1-judge, not for publication); for Amanda H.: Shelley Fite, SPD, Madison Appellate; case activity; companion case: Oneida County Department of Social Services v. Scott H., 2011AP2599
TPR – Severance
On joint trial for termination of parental rights, Scott’s disruptive conduct didn’t necessitate grant of severance motion by Amanda.
Charge Duplicity – Juror Unanimity
State v. Darryl P. Benson, 2010AP2455-CR, District 1, 5/8/12
court of appeals decision (not recommended for publication); for Benson: Mary Scholle, SPD, Milwaukee Appellate; case activity
Sexual assault charges were not duplicitous, and in any event, potential unanimity problem was resolved by the instructions:
¶17 To begin, we conclude that the amended information properly notified Benson of the charges against him. The counts were set forth with enough specificity to allow Benson to plead and defend himself and to protect him from being tried twice for the same offense.