On Point blog, page 16 of 32
Federal district court grants habeas relief based on violation of Confrontation Clause; calls Wisconsin court’s harmless error analysis “a sterilized, post-hoc rationalization for upholding the result”
Mark D. Jensen v. James Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)
Judge William Griesbach of the U.S. District Court, Eastern District of Wisconsin, has ordered a new trial for Mark Jensen, who was convicted of killing his wife Julie based in part on the use of oral and written statements she made before her death in which she told police she suspected her husband was trying to kill her.
State ex rel. Lorenzo Kyles v. William Pollard, 2012AP378-W, petition for review granted 12/17/13
Review of an unpublished court of appeals decision that is not available online; case activity
Issue: Whether a client alleging ineffective assistance of counsel based on his trial lawyer’s unavailability or failure to respond to a request for an appeal during the 20-day period for filing a notice of intent to pursue postconviction must raise his claim via a § 974.06 motion or a Knight petition?
SCOW is wading into a procedural thicket with this case.
U.S. Supreme Court: Federal circuit court failed to give required “double deference” under AEDPA to state court’s resolution of ineffective assitance of counsel claim
Burt v. Titlow, USSC No. 12-414, 11/5/13
United States Supreme Court decision, reversing Titlow v. Burt, 680 F.3d 577 (6th Cir. 2012)
When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt.
Guest Post: Rob Henak on 974.06 and SCOW’s new standard for ineffective assistance of appellate counsel
State v. Tramell Starks, 2013 WI 69, affirming an unpublished court of appeals decision, case activity. Majority opinion by Justice Gableman, with a dissent by Justice Bradley and joined by Chief Justice Abrahamson and Justice Crooks
On Point is pleased to present this guest post by Attorney Rob Henak, an expert on Wis. Stat. § 974.06 postconviction motions and ineffective assistance of appellate counsel.
Randy White, Warden, v. Robert Keith Woodall, USSC No. 12-704, cert granted 6/27/13
1. Whether the Sixth Circuit violated 28 U.S.C. §2254(d)(1) by granting habeas relief on the trial court’s failure to provide a no adverse inference instruction even though this Court has not “clearly established” that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances.
2. Whether the Sixth Circuit violated the harmless error standard in Brecht v.
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),
U.S. Supreme Court holds that a showing of “actual innocence” allows consideration of merits of habeas petition filed after expiration of time limit
McQuiggin v. Floyd Perkins, USSC No. 12-126, 5/28/13
United States Supreme Court decision, vacating and remanding Perkins v. McQuiggin, 670 F.3d 665 (6th Cir. 2012)
In Schlup v. Delo, 513 U. S. 298 (1995), and House v. Bell, 547 U. S. 518 (2006), the Court held that a convincing showing of “actual innocence” enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims.
U.S. Supreme Court: habeas petitioner’s procedural default may be excused if state rules do not offer defendants meaningful opportunity to present IAC claim on direct appeal
Carlos Trevino v. Thaler, USSC No. 11-10189, 5/28/13
United States Supreme Court decision, vacating and remanding 449 Fed. Appx. 145 (5th Cir. Nov. 14, 2011)
Last term in Martinez v. Ryan, 132 S. Ct. 1309 (2012), a case arising out of Arizona, the Court held that where a state’s rules of appellate procedure allowed a state prisoner to raise an ineffective assistance of trial counsel claim only on collateral review,
US Supreme Court: Retroactive application of state court decision rejecting diminished capacity defense is not a basis for federal habeas relief
Linda Metrish, Warden v. Burt Lancaster, USSC 12-547, 5/20/13
United States Supreme Court decision, reversing Lancaster v. Metrish, 683 F.3d 740 (6th Cir. 2012)
In a unanimous opinion issued only a month after oral argument, the Supreme Court holds that a state prisoner is not entitled to federal habeas relief based on the retroactive application of a state supreme court decision holding there is no diminished capacity defense under state law.