On Point: 8. Counsel, 6th Am.

State v. Traci L. Scott, 2011AP2115-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Scott: Rex Anderegg; case activity

The court rejects Scott’s challenge to a prior OWI conviction, concluding that she aware of the range of punishments, dangers of self-representation, etc. General test recited:

¶2        A defendant facing an enhanced sentence based on a prior conviction may only collaterally attack that prior conviction based on the denial of the constitutional right to counsel.  

Lafler v. Anthony Cooper, USSC No. 10-209, 3/21/12, vacating and remanding, 376 Fed. Appx. 563 (6th Cir. 2010); prior post; companion case: Missouri v. Frye, 10-444

Cooper turned down a favorable plea bargain and instead went to trial, after his attorney erroneously told him the prosecution would be unable to establish intent to kill because the victim had been shot below the waist.

United States Supreme Court decision, vacating and remanding, 311 S.W.2d 350 (Mo. App. W.D. 2010); prior post; companion case: Lafler v. Cooper, 10-209

Counsel – Effective Assistance – Plea Bargaining 

Counsel’s failure to communicate to Frye a favorable plea bargain offer from the prosecutor was deficient performance under 6th amendment analysis of effective assistance of counsel.

Luis Mariano Martinez v. Ryan, USSC No. 10-1001, 3/20/12, reversing and remanding, 623 F.3d 731 (9th Cir. 2011)

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

State ex rel. Gerald Porter v. Cockroft, 2011AP308, 2011AP308, District 1, 3/6/12

court of appeals decision (not recommended for publication); for Porter: Joseph E. Redding; case activity

 Ineffective assistance of counsel at a revocation hearing is reviewable by habeas corpus, ¶10, citing State v. Ramey, 121 Wis. 2d 177, 182, 359 N.W.2d 402 (Ct. App. 1984). But, because there is no right to counsel on review of a revocation order,

State v. Miller X. Lark-Holland, 2011AP791-CR, District 1, 2/28/12

court of appeals decision (not recommended for publication); for Lark-Holland: Byron C. Lichstein; case activity

¶7        Lark-Holland’s first complaint is that his trial lawyer did not emphasize the mitigating factor that he said he was forced into committing the robbery, and also made several comments that he says undercut his character.  …  These comments, however, when read in full context,

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,

David M. Siegel, “What (Can) (Should) (Must) Defense Counsel Withhold from The Prosecution in Ineffective Assistance of Counsel Proceedings?,” The Champion, Vol. 18, No. 35, December 2011 

Must-read exegesis of ABA Formal Opinion 10-456, for anyone litigating, or on the business end of, an ineffective-assistance claim. Some highlights:

• “The attorney-client privilege and the obligation of confidentiality continue beyond the representation, and while a former client’s IAC claim impliedly waives the privilege with respect to allegations concerning lawyer-client communications,

seventh circuit decision

Habeas – Knowing Use of False Testimony (“Napue”) 

Due process prohibits knowing prosecutorial use of false testimony, Napue v. Illinois, 360 U.S. 264, 269 (1959). However, the prosecutor’s exploitation of Bland’s incorrect testimony on a potentially important point (the date his gun was confiscated) doesn’t support habeas relief on a Napue-type theory.

Napue and Giglio hold that a prosecutor may not offer testimony that the prosecutor knows to be false.

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,