On Point: 29. Postconv. Motions

State v. Dimitri Henley, 2010 WI 97, on certification; prior history: unpublished decision; related: disqualification litigation; for Henley: Keith A. Findley, John A. Pray, Byron Lichstein; Amicus: SPD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,”

State v. Aaron A. Allen, 2010 WI 89, affirming unpublished decision; for Allen: Robert R. Henak; BiC; Resp.; Reply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.

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

• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Scotusblog analysis notes,

decision below: unpublished (2009AP118); for Burns: David R. Karpe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?

court of appeals decision (1-judge; not for publication); pro se; Resp. Br.

Custody Requirement, sec. 974.06

¶7        However, Olson is barred from collaterally attacking his criminal conviction under Wis. Stat. § 974.06 because he is no longer “‘in custody under sentence of a court.’”  See State v. Theoharopoulos, 72 Wis. 2d 327, 329, 240 N.W.2d 635 (1976) (quoting § 974.06 and recognizing that circuit court lacks jurisdiction to consider a motion for postconviction relief brought under § 974.06 if the defendant has completed his sentence). 

court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.

Serial Litigation Bar
Collins’ § 974.06 motion is procedurally barred by his failure to allege a “sufficient reason” for not previously raising issues as part of his prior, no-merit appeal, ¶1.

Bit more interesting than that, in the following sense: the court not only pays lip service to the idea that it “must pay close attention to whether the no merit procedures were followed,”

State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray

Prosecutorial Misconduct – Closing Argument

Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling:

¶1        State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis. 2d 382,

court of appeals decision; for Jeffrey A.W.: Hans P. Koesser
Resp Br; Reply

Counsel – Adequacy of Investigation
Attempt to demonstrate absence of herpes in defendant—an issue central to this sexual assault prosecution—was, although  failure, not product of deficient performance, ¶12:

There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.

State v. Jeffrey A.W., 2010 WI App 29; for Jeffrey A.W.: Hans P. Koesser

Adequacy of Counsel Investigation

Counsel’s attempt to demonstrate the absence of herpes in the defendant—an issue central to this sexual assault prosecution—was, although a failure, not the product of deficient performance.

¶12  There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:

 ¶32     The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea.