On Point blog, page 12 of 20
Rape Shield Law – Interest of Justice Review
State v. Alan Keith Burns, 2011 WI 22, affirming unpublished decision; for Burns: David R. Karpe; case activity
The court rejects Burns’s claim for a new trial in the interest of justice premised on three grounds: 1. Burns was unable to cross-examine the complainant on her implication that he took her virginity; 2. evidence of prior sexual assaults of the complainant by his father,
TPR; Interest of Justice Review – Generally
Winnebago County DHHS v. Thomas C. W., 2010AP847, District 2, 3/16/11
court of appeals decision (1-judge, not for publication); for Thomas C.W.: Theresa J. Schmieder; case activity
Though trial counsel was ineffective with respect to a single discrete oversight – failure to lodge a meritorious motion for judgment notwithstanding verdict as to one of the 3 grounds for termination – the court discerns no basis to doubt either of the remaining 2 grounds,
Interest of Justice – Shaken Baby Syndrome; Confessions – Voluntariness
State v. Quentin J. Louis, 2009AP2502-CR, District 3, 3/15/11
court of appeals decision (not recommended for publication); for Louis: Edward J. Hunt; amicus, Wis. Innocence Project: Keith A. Findley, Peter Shawn Moreno; case activity
Trial court grant of new trial in interest of justice upheld as proper exercise of discretion: the issue in controversy wasn’t fully and fairly tried, given failure to adduce at trial medical testimony that the deceased baby’s injuries didn’t result from shaken baby syndrome.
Serial Litigation Bar – Ineffective Assistance
State v. Lawrence Williams, 2010AP1028, District 1, 3/8/11
court of appeals decision (not recommended for publication); pro se; case activity; prior history: 220 Wis.2d 458, 583 N.W.2d 845 (Ct.App. 1998)
Williams fails to provide a “sufficient reason” to overcome the serial litigation bar on his § 974.06 motion following direct appeal. He posits ineffective assistance of postconviction counsel, for failing to argue that trial counsel was ineffective in various respects.
Postconviction DNA Testing – Cognizable under 42 U.S.C. § 1983
Henry W. Skinner v. Switzer, USSC No. 09-9000, 3/7/11
A convicted state prisoner may utilize 42 U.S.C. § 1983 to seek DNA testing of crime-scene evidence.
When may a state prisoner, complaining of unconstitutional state action, pursue a civil rights claim under §1983, and when is habeas corpus the prisoner’s sole remedy? …
We summarized the relevant case law most recently in Wilkinson v.
Serial Litigation Bar: Application to Motion for Postconviction Discovery
State v. Terry L. Kletzien, Jr., 2011 WI App 22; for Kletzien: James A. Rebholz; case activity; Kletzien BiC; State Resp.; Reply
In a prior appeal, Kletzien unsuccessfully challenged denial of postconviction discovery, 2008 WI App 182. (See, e.g., State v. O’Brien, 223 Wis. 2d 303,
Effective Assistance – Plea Advice; Newly Discovered Evidence; Counsel – Sanction
State v. Charles A. Bouc, 2010AP180, District 2, 12/22/10
court of appeals decision (3-judge, not recommended for publication); for Bouc: Adam Walsh; case activity; Bouc BiC; State Resp.; Reply
Effective Assistance – Plea Advice
Counsel did not fall short of normative performance standards, where he weighed with his client the pros and cons of admissibility of potentially crucial evidence;
Newly Discovered Evidence: Test – SVP Commitment – Revised Actuarial; Completeness Doctrine, § 901.07; Interest of Justice Review
State v. Richard D. Sugden, 2010 WI App 166 (recommended for publication); for Sugden: Donald T. Lang, SPD, Madison Appellate; Sugden BiC; State Resp.; Reply
Newly Discovered Evidence – Test – Generally
¶14 In order to be entitled to a new trial based on newly discovered evidence, Sugden must prove by clear and convincing evidence that (1) the evidence is,
Collateral Attack – Serial Litigation Bar
State v. Paul Dwayne Westmoreland, 2009AP2288, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Brief
¶14 Escalona-Naranjo requires that a defendant raise all grounds for postconviction relief in his or her first postconviction motion or in the defendant’s direct appeal. See id., 185 Wis. 2d at 185. A defendant may not pursue claims in a subsequent appeal that could have been raised in an earlier postconviction motion or direct appeal unless the defendant provides a “‘sufficient reason’” for not raising the claims previously.
Herbert Johnson, Sr. v. Thurmer, 7th Cir No. 07-2628, 10/18/10
7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals
Habeas – Procedural Default & No-Merit Report
Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir.