On Point: 29. Postconv. Motions

State v. Paschall Lee Sanders, 2011 WI App 125 (recommended for publication); for Sanders: Ellen Henak, SPD, Milwaukee Appellate; case activity

The definitions of “mental disorder” in since-amended pattern instruction Wis JI—Criminal 2502 (2009), though concededly contradictory, didn’t prevent from being tried the issue of whether Sanders qualified for commitment as a sexually violent person:

¶14      As we have seen, two sentences in what the circuit court told the jury are contradictory:

(1)   “Mental disorder means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence and causes serious difficulty in controlling behavior.”  (Emphasis added.)

(2)   “Not all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior.”

As noted earlier,

Florence County Department of Human Services v. Jennifer B., 2011AP88, District 3, 8/19/11

court of appeals decision (1-judge, not for publication); for Jennifer B.: Martha K. Askins, Shelley Fite, SPD, Madison Appellate; case activity

Removal from jury consideration of a ground for termination (CHIPS orders) without prior discussion between court and parties was error:

¶10      While we agree that a directed verdict is available in the grounds phase of a TPR proceeding, 

State v. Kelvin L. Crenshaw, 2010AP1960-CR, District 1, 8/2/11

court of appeals decision (not recommended for publication); for Crenshaw: Joseph E. Redding; case activity

Counsel wasn’t ineffective with respect to: failure to argue a theory of defense unsupported by the evidence; failure to introduce medical records asserted to show police bias in conducting the investigation; failure to object to the concededly erroneous inclusion of “party to a crime”

Shelly J. v. Leslie W., 2011AP753, District 4, 7/28/11

court of appeals decision (1-judge, not for publication); for Shelly J.:  Amy J. Lamerand Zott; case activity

Shelly’s motion to reopen her TPR judgment, 7 years after she successfully petitioned for voluntary termination, was untimely under the 1-year deadline imposed by § 806.07(1)(a) and (c), nor did she show “extraordinary circumstances” under subs. (h). As to her claim that the judgment was void under subs.

State v. David J. Balliette, 2011 WI 79, reversing unpublished decision; for Balliette: Steven D. Grunder, SPD, Madison Appellate; case activity

Balliette’s pro se § 974.06 motion, asserting ineffective assistance of postconviction counsel for failing to raise ineffective assistance of trial counsel on direct appeal, was insufficiently pleaded to require an evidentiary hearing.

Unless you’re an appellate specialist or a masochist –

State v. John D. Tiggs, Jr., 2010AP1530, District 2, 6/29/11

court of appeals decision (1-judge, not for publication); pro se; case activity

Tiggs knew that DNA test results would be released in mere hours, yet chose to enter his no-contest plea. His postconviction motion to withdraw the plea, based on a theory that the test results amount to newly discovered evidence, fails to satisfy the requirements that the evidence was discovered after conviction and that the defendant wasn’t negligent in seeking the evidence. 

On Point is very pleased to present this guest post discussion of Skinner v. Switzer by Brandon L. Garrett, Professor of Law, University of Virginia. Professor Garrett’s most recent book, “Convicting the Innocent,” was reviewed by in the New York Times Sunday Book Review 5/26/11.

The U.S. Supreme Court settled another boundary dispute about what lies inside and what lies outside of habeas corpus today in Skinner v.

7th circuit court of appeals decision

Retroactive Application of Case Law, on Collateral Review

Narvaez’s federal ACCA enhancement, imposed in 2003, is now unsupportable in light of subsequently-decided Supreme Court authority (Begay v. U.S.; Chambers v. U.S.). He may therefore seek relief against the sentencing enhancement via 28 U.S.C. § 2255: the case law development worked a change in “substantive liability”

State v. Jimmie C. Grayer, 2010AP1749-CR, District 1, 6/1/11

court of appeals decision (not recommended for publication); for Grayer: Bridget E. Boyle; case activity

Postconviction denial of ineffective assistance of counsel challenge without Machner hearing upheld.

1. Although counsel performed deficiently by inaccurately telling the jury in his opening statement that Grayer’s in-custody had not been recorded by the police, Grayer wasn’t prejudiced by the deficiency.

State v. Scott Maher, 2010AP460, District 4, 5/26/11

court of appeals decision (not recommended for publication); for Maher: Donald T. Lang, SPD, Madison Appellate; case activity

Testimony from a State’s expert witness describing the ch. 980 screening process was irrelevant.

¶11      We addressed the issue of the admissibility of this same type of evidence in State v. Sugden, 2010 WI App 166,