On Point blog, page 1 of 1
SCOW will address confusion created by Starks
State ex rel. Milton Eugene Warren v. Michael Meisner, 2019AP567-W, petition for review granted 10/16/19; reversed and remanded 6/10/20; case activity
Issue (composed by On Point based on the petition for review)
Whether under State v. Starks, 2013 WI 69, Warren’s § 974.06 postconviction motion alleging ineffective assistance of counsel by the lawyer appointed on direct appeal should be heard in the circuit court or the Court of Appeals.
Defense win! SCOW says the court of appeals can’t deny a habeas petition ex parte based on laches
State ex rel. Ezequiel Lopez Quintero v. Dittmann, 2019 WI 58, reversing and remanding a court of appeals memorandum opinion, case activity (including briefs)
Go Remington Center for the 5-2 win in SCOW! The court of appeals dismissed R.C.’s habeas petition ex parte because it did not allege why Lopez Quintero waited 9 years to file it in violation of State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997). This overrules Smalley and holds that a habeas petitioner need not allege timeliness in his petition.
Insufficient allegation of prejudice dooms plea withdrawal claim
State v. Eugene B. Santiago, 2016AP1267, District 2, 5/3/17 (not recommended for publication); case activity (including state’s brief)
Santiago’s trial lawyer missed a charging error that led to an overstatement of the penalties Santiago faced; this failure doesn’t allow Santiago to withdraw his plea, however, because he fails to sufficiently allege that he would not have entered a plea if his lawyer had caught the mistake.
Court rejects claim that revocation hearing lawyer was ineffective
State ex rel. Vincent Martinez v. Brian Hayes, 2014AP2095, District 2, 12/21/16 (not recommended for publication); case activity (including briefs)
Martinez claimed the lawyer who represented him at his ES revocation hearing should have objected to certain hearsay evidence and to the ALJ’s failure to find good cause for the lack of appearance of certain witnesses. The court of appeals rejects the claim because even if counsel was deficient, Martinez wasn’t prejudiced.
SCOW clarifies the forum and procedure for raising a claim that counsel was ineffective for failing to file notice of intent to pursue postconviction relief
State ex re. Lorenzo D. Kyles v. William Pollard, 2013 WI 38, reversing an unpublished court of appeals decision; case activity
Settling a somewhat obscure but still important point of appellate procedure, the supreme court unanimously holds that when a defendant seeks to reinstate the deadline for filing a notice of intent to pursue postconviction relief under § 809.30(2)(b) based on an allegation that counsel was ineffective for failing to file a timely notice, he should file a habeas petition in the court of appeals as provided under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).
Habeas corpus provides remedy where parent’s lawyer failed to file timely appeal in TPR case
Amy W. v. David G., 2013 WI App 83; case activity
David G.’s parental rights were terminated in a proceeding commenced by the child’s mother. He filed a timely notice of intent to pursue postdisposition relief, but his appointed appellate counsel failed to file a notice of appeal before the deadline. (¶3). That deadline cannot be extended because the legislature has decreed that the time for filing an appeal in a TPR case may not be enlarged when the petition was filed by someone other than “a representative of the public.”
Courts had no jurisdiction to consider plea withdrawal motion filed more than five years after sentencing
State v. Juan M. Rodriguez-Faustino, 2012AP2777, District 1, May 29, 2013; court of appeals decision (1-judge; ineligible for publication); case activity
Rodriguez-Faustino pled to a misdemeanor drug offense and, in January 2007, was placed on probation for 12 months. (¶¶4-5). In September 2012 he filed a motion to withdraw his plea, asserting his attorney was ineffective under Padilla v. Kentucky, 130 S.Ct. 1473, 1475‑1476 (2010),
(State) Habeas Corpus – Procedural Requirements – Adequate Alternative Remedy
State ex rel. Gerard Noel Haas v. McReynolds, 2002 WI 43, affirming unpublished court of appeals decision
For Haas: Robert G. Bernhoft
Issue/Holding: By voluntarily dismissing an appeal from denial of a first habeas petition, Haas was estopped from filing a second habeas petition in the court of appeals raising the same issue contained in the first petition. (That is, because Haas had an alternate, adequate remedy to challenging denial of the first petition —
(State) Habeas Corpus – Venue
State ex rel Edwin C. West v. Bartow, 2002 WI App 42
For West: Leonard D. Kachinsky
Issue: Whether the court had discretion to order change of venue from Winnebago (county of current SVP confinement) to Milwaukee (county of commitment), on habeas challenge to the commitment.
Holding: Venue was proper in Winnebago under § 801.50(4)(b) (where petitioner is being restrained); the trial court’s transfer mistakenly relied on § 801.50(4)(a) (where petitioner was convicted or sentence,