On Point

State v. Robert Lavern Cameron, 2016 WI App 54; case activity (including briefs)

This decision feels like an encounter with a swarm of mosquitoes on a pleasant summer evening. But because it is recommended for publication, you can’t just swat it away. Indeed, the court of appeals’ analysis of the issues will leave you reaching for a bottle of the calamine lotion.

Question presented:

Duane Buck’s death penalty case raises a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination. Specifically, did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court’s precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?

Ross v. Blake, USSC No. 15-339, 2016 WL 3128839 (June 6, 2016), vacating and remanding Blake v. Ross, 787 F.3d 693 (4th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

The Supreme Court unanimously holds there is no unwritten “special circumstances” exception to the Prisoner Litigation Reform Act’s requirement that a prisoner exhaust administrative remedies before filing a lawsuit.

Question presented:

Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

State v. Michael S. Dengsavang, 2015AP637-CR, 6/1/16, District 1 (not recommended for publication); case activity (including briefs)

Michael Dengsavang raises several challenges to the trial court’s denial of his Machner motion. The court of appeals rejects one claim on the merits and declines to consider the rest, holding them previously abandoned.

Deborah K. Johnson v. Donna Kay Lee, 578 U.S. __ (2016)(per curiam); SCOTUS docket

Like Wisconsin, California has a rule that a defendant may not raise a claim for the first time on on state collateral review if he could have raised it on direct appeal. Wisconsin calls it the “Escalona bar.” California calls it the “Dixon bar.” The issue in this case was whether the California Supreme Court’s application of the “Dixon bar” provided an independent and adequate state ground for barring federal habeas review.  SCOTUS answered “yes.”

Lee’s litigation strategy is interesting. After losing her direct appeal in California state courts, she skipped state postconviction review and filed a federal habeas petition. The federal court stayed her petition and directed her to exhaust her state-court remedies. She filed a state habeas petition, which the California Supreme Court denied in a summary order that cited Dixon.

Scott R. Schmidt v. Deborah McCulloch, 7th Circuit Court of Appeals No. 14-3651, 5/27/16

The Seventh Circuit upholds the denial of a Wis. Stat. ch. 980 detainee’s habeas corpus petition.

State v. Salinas, 2016 WI 44, 5/26/2016, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)

In which our so-called law-developing court does not develop the law of joinder under § 971.12(1)—and even leaves it less clear than it used to be.

State v. William J. Furlong, 2016AP445-FT, 5/26/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

William Furlong, arrested for OWI, initially consented to a blood draw but then decided that he wanted to talk to a lawyer first. (¶4). The officer noted a refusal, which Furlong appeals, arguing that the officer should have informed him that there was no right to counsel in connection with the blood draw.

State v. Jason S. Witte, 2015AP795-CR, 5/26/16, District IV (one-judge decision; ineligible for publication); case activity (including briefs)

Witte, charged with OWI-4th, attacked a 2004 prior, alleging that did not have, and did not validly waive, counsel. The circuit court concluded that Witte’s affidavit and the documents from the 2004 proceeding did not make out a prima facie case that Witte was denied counsel, and the court of appeals now agrees.