On Point blog, page 56 of 71
Henry Griffin v. Pierce, 7th Cir No. 09-3138, 9/22/10
7th circuit court of appeals decision
Habeas – Napue Issue
The Supreme Court has held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959) …. Thus, a new trial is required if a petitioner establishes that (1) the prosecution presented false testimony or failed to disclose that false testimony was used to convict,
Battery – Self-Defense – Sufficiency of Evidence; Sanctions – Improper Briefing
State v. Richard Martin Kubat, 2010AP509-CR, District 3, 9/21/10
court of appeals decision (1-judge, not for publication); for Kubat: Marc Grant Kurzman; BiC; Resp.
Battery – Self-Defense – Sufficiency of Evidence
A verbal confrontation between truckers at a truck stop eventuated in Belcher disabling Kubat’s truck and inviting Kubat to get his punk ass out of his cab “and get it.” Kubat accepted the invitation and brought his tire knocker along as his own guest.
Manipulation of Adult Jurisdiction over Juvenile Offense; Bail Jumping – Jurisdiction to Impose Conditions; Sanctions – Appellate Violations
State v. Drew E. Bergwin, 2010 WI App 137; for Bergwin: Roberta A. Heckes; BiC; Resp.; Reply
Manipulation of Adult Jurisdiction over Juvenile Offense
When the State brings a criminal charge against an adult defendant for an offense committed as a juvenile, the State must affirmatively show that the delay in charging wasn’t intended to manipualte the system to avoid juvenile court jurisdiction,
State v. David J. Balliette, 2009AP472, Wis SCT rev grant, 8/31/10
decision below: summary order (not posted); case information here; prior appeal: 2001AP2527-CR; for Balliette: Steven D. Grunder, SPD, Madison Appellate
Issue (from AG’s petition for review):
Is an evidentiary hearing into the effectiveness of post-conviction counsel required in every case where the § 974.06 motion merely makes the conclusory allegation that post-conviction counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct review?
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.
TPR- Ineffective Assistance – Change of Placement, Warnings; Disposition, Exercise of Discretion
State v. Jesenia R., 2009AP2906, District 1, 8/24/10
court of appeals decision (1-judge, not for publication); for Jesenia R.: Mary D. Scholle, SPD, Milwaukee Appellate
No prejudice resulted from counsel’s failure to object to violation of the change-of-placement notice requirement in § 48.357. ¶¶15-16.
The background is a bit fact-intensive. Roughly: The child (Elizabeth) had been placed with a foster family, who moved to Idaho and took Elizabeth with them,
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,
Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence
State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.
Evidence – Daubert – Bullet Traced to Particular Gun
The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:
¶22 Unlike in the federal system,
Reasonable Suspicion – Traffic Stop; OWI – Habitual Offender – Collateral Attack
State v. Randall L. Wegener, 2010AP452-CR, District 1, 8/18/10
court of appeals decision (1-judge, not for publication); for Wegener: Kirk B. Obear; BiC; Resp.
Reasonable Suspicion – Traffic Stop
Inclement winter weather didn’t obviate the need to stay within the proper lane, such that crossing the center line, even briefly a few times, provided reasonable suspicion to perform a traffic stop.
¶6 Wegener argues that Fabry did not have reasonable suspicion to conduct a traffic stop because he was driving appropriately for part of the time he was followed and blames his lack of control of his vehicle on the snowy weather conditions.
Sentence – Factors – Exercise of Constitutional Right; Sentence – Effective Assistance of Counsel
State v. Sabian L. Yunck, 2009AP3020-CR, District 1, 8/17/10
court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply
Sentence – Factors – Exercise of Constitutional Right
Convicted of violating a domestic abuse order forbidding contact with the mother of his child, Yunck argues that sentence was impermissibly based on his exercise of a constitutional right,