On Point: 2. Prejudice

State v. Juan Angel Orengo, 2011AP137, District 1, 2/28/12

court of appeals decision (not recommended for publication); for Orengo: Robert R. Henak; case activity

Counsel’s failure to attempt severance, from a drug charge, of a felon-in-possession-of-weapon count, didn’t amount to ineffective assistance.

¶8        Wisconsin law recognizes that guns and drug dealers go together.  See State v. Guy, 172 Wis. 2d 86,

Marilyn Mulero v. Thompson, 7th Cir No. 10-3875, 2/7/12

seventh circuit decision

Habeas – Procedural Bar 

Muleros’ failure to present various claims “through one complete round of state court review” operates as procedural default; citing, Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).

… While Mulero did present numerous other claims of ineffective assistance of counsel to the Illinois state trial court and in her petition for review to the Illinois Supreme Court,

Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12

court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity

Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.

 ¶6        Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.  

State v. Anthony L. Prineas, 2012 WI App 2 (recommended for publication), reissued after initial decision withdrawn; for Prineas: Robert R. Henak; case activity; prior history: State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 NW.2d 206

Evidence – Prior Inconsistent Statements 

Evidence of complainant KAC’s statements made during an alleged sexual assault were admissible as prior inconsistent statements,

State v. Tijuan L. Walker, 2010AP2587-CR, District 1, 11/29/11

court of appeals decision (not recommended for publication); for Walker: Matthew S. Pinix; case activity

Walker was tried for and convicted of injury by intoxicated use of a vehicle, § 940.25(1)(a), after his car collided with DeAnn Braggs’. A form accompanying the post-accident test kit containing Braggs’ blood (which had little or no alcohol content) noted that the vials of blood were labeled “Walker,

Dawn H. v. Pah-Nasa B., 2011AP1198, District 3, 11/29/11

court of appeals decision (1-judge, not for publication); for Pah-Nasa B.: Lora B. Cerone, SPD, Madison Appellate; case activity

Given the proof of lack of parental responsibility as a ground for terminating Pah-Nasa’s rights, counsel’s failure to object to testimony about a fight between Pah-Nasa and his mother wasn’t prejudicial.

¶14      We conclude Pah-Nasa has failed to prove prejudice,

Gregory L. Payne v. Basinger, 7th Cir No. 10-1869, 11/10/11

seventh circuit decision

Ineffective Assistance of Counsel – Guilty Pleas – Prejudice 

The state court erroneously concluded that, because Basinger would have been convicted anyway had he gone to trial, he suffered no prejudice from counsel’s erroneous advice as to the maximum sentence he faced on acceptance of the plea bargain:

That was a mistake.

Samuel Morgan v. Hardy, 7th Cir No. 10-3155, 11/7/11

seventh circuit decision

Habeas – Recantation 

The Illinois state court didn’t mishandle either the facts or applicable law, and its rejection of State witness Prater’s post-trial recantation as incredible wasn’t unreasonable. The petitioner’s task is to “show[] that the state court determined an underlying factual issue against the clear and convincing weight of the evidence” – though the recantation here is consistent with the physical evidence,

Matthew Steffes v. Thurmer, 7th Cir No. 09-3317, 11/4/11

seventh circuit decision, denying habeas relief on review of 2006AP1633-CR

The “concurrent sentence doctrine” – which “allows appellate courts to decline to review a conviction carrying a concurrent sentence when one ‘concurrent’ conviction has been found valid,” Cheeks v. Gaetz, 571 F.3d 680, 684-85 (7th Cir.2009) – doesn’t apply here in view of a separate assessment and the potential to affect parolability:

…

State v. David W. Domke, 2011 WI 95, reversing unpublished decision; for Domke: Martha K. Askins, SPD, Madison Appellate; case activity

Although Domke establishes deficient performance in several different respects, he fails to satisfy his burden of showing prejudice.

• Failure to object to hearsay testimony / medical treatment and diagnosis exception inapplicable to counselors and social workers.