On Point: 22. Habeas corpus

Terrance Bernard Davis v. Borgen, 349 F.3d 1027 ( 7th Cir. 03-2354, 11/20/03)

Issue/Holding: A certificate of appealability of dismissal of a habeas petition filed four years after the deadline is vacated:

To recap the statutory requirements: (1) A certificate of appealability may be issued only if the prisoner has at least one substantial constitutional question for appeal.

State v. Rodosvaldo C. Pozo, 2002 WI App 279, 258 Wis. 2d 796, 654 N.W.2d 12

Issue/Holding:

¶8. Writ of habeas corpus is an equitable remedy that protects a person’s right to personal liberty by freeing him or her from illegal confinement. State ex rel. Dowe v. Waukesha County Circuit Court, 184 Wis. 2d 724, 728-29, 516 N.W.2d 714, 715-16 (1994). It arises in common law and is guaranteed by the state2 and federal3 constitutions,

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 Gerard Noel Haas v. McReynolds, 2002 WI 43, affirming unpublished court of appeals decision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 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,

Darrell D. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002) 
For Cage: Calvin R. Malone

Issue/Holding: “When we make a mistake and issue a certificate of appealability that specifies an improper ground, counsel for both sides, rather than indulging a fiction of judicial infallibility, should inform us before briefing begins and ask us to amend the certificate, which is within our power because even an ‘unfounded’

Bernard L. Beyer v. Litscher, 306 F.3d 504 (7th Cir. 2002)

Issue/Holding: Certificate of Appealability required by 28 U.S.C. § 2253(c)(3) must specifically identify a substantial constitutional issue. Declaration of purely statutory issue isn’t enough, and it is incumbent on counsel to bring this defect to the appellate court’s attention. Nonetheless, this appellant is allowed to proceed, though future litigants are cautioned: “Future petitioners and their lawyers should undertake to show that a substantial constitutional issue exists,

State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999)
For Fuentes: Robert T. Ruth

Issue/Holding:

¶6. The availability of habeas corpus relief arises out of the common law and is guaranteed by both the state2 and federal3 constitutions as well as by statute.4 Although a habeas corpus petition normally arises out of criminal proceedings, it is a separate civil action founded upon principles of equity.

State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999)
For Fuentes: Robert T. Ruth

Issue/Holding: Court of appeals’ “clerical error” (failure to mail appellate counsel a copy of its decision affirming conviction) which led to loss of deadline for filing petition for review in supreme court held remediable through writ of habeas corpus.

State ex rel. Michael J. Hager v. Marten, 226 Wis.2d 687, 594 N.W.2d 791 (1999), affirming unpublished decision
For Hager, Gerhardt F. Getzin, SPD, Wausau

Issue/Holding: “(A) question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner’s liberty in violation of the constitution or the court’s jurisdiction,” ¶ 2.