On Point: 8. Counsel, 6th Am.

Johnbull K. Osagiede v. USA, 7th Cir No. 07-1131, 9/9/08

Issue/Holding: Counsel’s ignorance of VCCR Art. 36 rights available to foreign national client was deficient:

Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” Julian v.

Bettendorf v. St. Croix County, 2008 WI App 97

Issue/Holding: An appellate “brief contain(ing) a collection of attacks against [opposing counsel] that are nothing more than unfounded, mean-spirited slurs” subjects its author to ethical sanction:

¶17      “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06).

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:

¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …¶10      Martinez and Tamalini provide no guidance on the question presented.

State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm

Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.

The court continues to dredge up the terrain between direct appeal and collateral attack: Knight falls on one side,

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney:

¶21      Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system.

State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08
For Westmoreland: Joseph E. Redding

Issue: Whether counsel’s strategic decision to argue inconsistent theories during closing argument (the defendant wasn’t involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient.

Holding:

¶20      We start with the proposition that strategic decisions by a lawyer are virtually invulnerable to second-guessing. 

State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke

Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.

Holding:

¶18      Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,

State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se

Issue/Holding:

¶10      There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender “to deal with the appointment of counsel for indigent defendants.” Pirk,

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding:

¶7        … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144.

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:

¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …

¶10      Martinez and Tamalini provide no guidance on the question presented.