On Point blog, page 13 of 20
TPR – Interest-of-Justice Review
Dane Co. DHS v. Tierra M., 2010AP1648, District 4, 9/23/10
court of appeals decision (1-judge, not for publication); for Tierra M.: Martha K. Askins, SPD, Madison Appellate
The court rejects the idea that Tierra M.’s termination of parental rights wasn’t “fully tried” under the theory that the subsequently decided Sheboygan County Department of Health & Human Services v. Tanya M.B., 2010 WI 55 requires departmental services relevant to implied as well as explicitly ordered conditions for the children’s return.
SVP – Retroactivity of Qualifying Offense Legislation; State’s Waiver; Newly Discovered Evidence – Re-normed Actuarial
State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10
court of appeals decision (3-judge, not recommended for publication); for Melendrez: David R. Karpe; BiC; Resp.; Reply
SVP – Retroactivity of Qualifying Offense Legislation
Third-degree sexual assault wasn’t an SVP-qualifying offense when Melendrez plea-bargained a reduction of 2nd-degree sexual assault to 3rd. But by the time he was released from prison,
Incest – Sufficiency of Evidence
State v. Nick J. W., 2009AP2030-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Nick J.W.: Joseph L. Sommers; BiC; Resp.; Reply
Incest – Sufficiency of Evidence
The 16-year-old complainant’s testimony that her biological father had sex with her sufficed to prove the crime of incest, the court rejecting the defense argument that, because she didn’t look at the perpetrator,
Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence
State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.
Evidence – Daubert – Bullet Traced to Particular Gun
The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:
¶22 Unlike in the federal system,
Plea Withdrawal – Nelson/Bentley Motion
State v. Timothy Ray Anderson, 2009AP2416-CR, District 1, 8/17/10
court of appeals decision (3-judge, not recommended for publication); for Anderson: Jeremy C. Perri; BiC; Resp.; Reply
Anderson’s postconviction motion for plea withdrawal, on the ground he didn’t understand that a charge “dismissed outright” could nonetheless be considered at sentencing, was properly denied without hearing. The circuit expressly denied that the dismissed charge was factored into the sentence,
Joseph Price v. Pierce, 7th Cir No. 08-1401, 8/13/10
Habeas – Filing Deadline – DNA Motion as Tolling
Price’s postconviction motion for DNA testing in Illinois state court didn’t toll the 28 U.S.C. § 2254 federal habeas deadline, and his habeas petition is therefore deemed untimely.
The court’s analysis relates to Illinois procedure. As will be seen, Wisconsin’s is meaningfully different and should yield a different conclusion. First, the obvious: subject to highly exceptional circumstances,
Post-Appeal Interest-of-Justice Litigation
State v. Dimitri Henley, 2010 WI 97, on certification; prior history: unpublished decision; related: disqualification litigation; for Henley: Keith A. Findley, John A. Pray, Byron Lichstein; Amicus: SPD
“Wisconsin circuit courts do not have the inherent authority to order a new trial in the interest of justice when a case is not before the court under a proper procedural mechanism,”
Serial Litigation Bar and No-Merit Procedure
State v. Aaron A. Allen, 2010 WI 89, affirming unpublished decision; for Allen: Robert R. Henak; BiC; Resp.; Reply
¶4 We conclude, following Wis. Stat. § 974.06, that a defendant is not required to file a response to a no-merit report. This means he is not required to raise issues in response to a no-merit report.
Skinner v. Switzer, USSC No. 09-9000, cert granted 5/24/10
Question Presented:
May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?
Docket: 09-9000
Scotusblog analysis notes,
State of Wisconsin v. Alan Keith Burns, Wis SCt review grant, 5/13/10
decision below: unpublished (2009AP118); for Burns: David R. Karpe
Issue:
Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?