On Point: 22. Habeas corpus

Question presented:

Whether the rule established in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

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 Vincent Martinez v. Brian Hayes, 2014AP2095, District 2, 12/21/16 (not recommended for publication); case activity (including briefs)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.

Eric T. Alston v. Judy P. Smith, 7th Circuit Court of Appeals No. 16-1308, 2016 WL 6083982, 10/18/2016

Eric Alston was on probation when he came to the attention of Dane County’s “Special Investigation Unit,” a law enforcement initiative targeting “serious, assaultive offenders” that offered him resources aimed at preventing him from reoffending but “came with the admonition that any probation violation would result in the Department of Corrections vigorously seeking full revocation of probation.” (Slip op. at 2).

William Hinesley, III, v. Wendy Knight, 7th Circuit Court of Appeals No. 15-2122, 2016 WL 4758437, 9/13/16

Hinesley’s trial lawyer didn’t object to the state’s presentation of the inculpatory out-of-court statements of the two principal witnesses against him because he wanted all of the witnesses’ statements admitted to show how they had changed their stories and weren’t credible. The Seventh Circuit holds the state courts reasonably concluded trial counsel wasn’t ineffective for adopting and employing this strategy.

Francisco Carrion v. Kim Butler, 7th Circuit Court of Appeals No. 14-3241, 2016 WL 4537374, 8/31/16

Carrion’s habeas petition made the novel claim that his confession was involuntary because of the fact it was translated by the investigating detective. You won’t be surprised to learn that the federal courts rejected his claim.

Charles Walker v. Kathy Griffin, 7th Circuit Court of Appeals No. 15-2147, 2016 WL 4501988, 8/29/16

Walker’s lawyer on his direct state appeal decided to challenge the reasonableness of Walker’s sentence, but he didn’t raise an issue about the sufficiency of the evidence to support applying an habitual offender enhancer to Walker. That failure didn’t constitute ineffective assistance of appellate counsel.

Roy L. Ward v. Ron Neal, 7th Circuit Court of Appeals No. 16-1001, 8/26/16

Ward’s trial lawyers weren’t ineffective when they failed to adequately investigate and present readily available mitigating evidence and then, due to lack of preparation, instead presented evidence Ward was a dangerous psychopath.

Darryl J. Sutton v. Randy Pfister, 7th Circuit Court of Appeals No. 15-2888, 2016 WL 4446561, 8/24/16

Sutton filed a habeas petition challenging his sexual assault conviction on the ground the evidence connecting him with the crime was obtained by the state through a conceded violation of the Fourth Amendment in a different case. The district court ruled in his favor, but the court of appeals holds there’s no Fourth Amendment violation because the evidence would inevitably have been discovered.

Raymond E. King v. Randy Pfister, 7th Circuit Court of Appeals No. 14-3389, 2016 WL 4446105, 8/24/16

The presiding judge at King’s 2004 murder trial was a former public defender who represented King in a criminal case in 1986. KIng’s pretrial pro se efforts to get the judge recused were rebuffed. After exhausting his state court remedies, King filed a habeas petition arguing his state trial and appellate lawyers were ineffective for failing to litigate a claim that the trial judge should have been substituted from King’s case. The Seventh Circuit rejects the argument.

Walker Whatley v. Dushan Zatecky, 7th Circuit Court of Appeals No. 14-2534, 2016 WL 4269805, 8/15/16

The maximum penalty for Whatley’s drug possession conviction was dramatically increased—from 2-to-8 years to 20-to-50 years—under a now-repealed Indiana penalty enhancer for drug offenses committed within 1,000 feet of a “youth program center,” defined as a “building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs” for youth. (Sound familiar? Sure it does: see §§ 961.01(22) and 961.49(1m)(b)5.) On habeas review, the Seventh Circuit holds that the statute’s failure to provide an objective standard for determining what “regular” means makes the statute unconstitutionally vague, so Whatley is entitled to resentencing under the non-enhanced penalty scheme.