On Point

seventh circuit decision

Habeas – Procedural Default Defense: Waiver by State 

Procedural default (here, failure to perfect the appeal in state court, hence failure to exhaust the claim) is an affirmative defense which may be forfeited or waived by the State. The State expressly waived any failure-to-exhaust objection, hence the court proceeds to the merits.

Habeas – PLRA and Right to Access the Courts 

During the course of litigating an otherwise unrelated 42 U.S.C.

State v. Noah L., 2012AP348, District 2, 8/29/12

court of appeals decision (1-judge, ineligible for publication); case activity

After finding the proof sufficient to support a delinquency allegation, the trial court nonetheless declined to enter adjudication of delinquency, pending a report and recommendation from the Department of Human Services. The report was prepared, which included information not admitted into evidence at the fact-finding hearing, and the court adjudicated the juvenile delinquent.

court of appeals publication orders, 8/29/12

On Point posts:

2012 WI App 89 State v. Richard Lavon Deadwiller

2012 WI App 90 State v. Terry G. Vollbrecht

2012 WI App 93 State v. Troy L. Cameron

2012 WI App 95 State v. Brandon M. Melton

State v. Robert T., 2012AP1110, District 1, 8/28/12

court of appeals decision (1-judge, ineligible for publication); case activity

¶11      Robert argues that because an adoptive resource was not in place for Anthony at the time of the dispositional hearing, the trial court essentially left Anthony without a family and did not make a finding in Anthony’s best interest.  Effectually, Robert argues that the trial court did not properly consider the factors set forth in Wis.

State v. Eric K. Fredlund, 2012AP742-CR, District 2, 8/22/12

court of appeals decision (1-judge, ineligible for publication); case activity

An officer’s observation that a vehicle’s headlights “just appear[ed],” such that the officer couldn’t tell if the vehicle had been traveling down the roadway without lights, supported a traffic stop.

¶6        From the deputy’s observation of Fredlund’s vehicle at around “4 or 4:30 in the morning,” a reasonable officer could reasonably infer that Fredlund was violating the law by driving down the highway without the vehicle’s headlights turned on.  

State v. Paul J. Mayek, 2012AP398-CR, District 3, 8/21/12

court of appeals decision (1-judge, ineligible for publication); case activity

¶8        Although we have concluded Rasmussen did not seize Mayek until after he approached Mayek’s vehicle, it is impossible to tell from Rasmussen’s testimony precisely when the seizure occurred.  Neither the parties, nor the circuit court, appear to have given serious consideration to the issue.  Rasmussen was not questioned about what took place after he approached Mayek’s vehicle.  

seventh circuit decision

Habeas Review – Right to Counsel – Collateral Attack 

Resendez litigated an unsuccessful pro se challenge to revocation of his state court parole, on the ground that he had completed service of that sentence therefore wasn’t in fact on parole. Forced to litigate the issue on his own, he argues on federal habeas that he was denied his right to counsel.

“[A] criminal defendant enjoys [a] right to counsel through his first appeal of right .

seventh circuit decision

Habeas Review – Confessions – Voluntariness 

Given the deferential nature of habeas review, the state court reasonably determined that a 16-year-old’s confession after 55 hours of interrogation was voluntary:

Particularly in light of the highly deferential standard due to the state court, we have no reason to doubt that it took into account all of the relevant facts, highlighting only those that seemed especially pertinent to the voluntariness of the confession.

seventh circuit decision

Habeas Procedure – Appellate Jurisdiction 

Where a party has filed a timely notice of appeal to a judgment, and the district court subsequently enters an amended judgment nunc pro tunc (“now for then”) conforming language in the original judgment, an amended notice of appeal isn’t necessary to confer appellate jurisdiction:

… The district court’s February 3, 2012 judgment thus had retroactive legal effect back to August 26,

State v. Lavon J. Ash, Sr., 2012AP381-CR, District 2, 8/15/12

court of appeals decision (1-judge, ineligible for publication); case activity

Ash was sentenced to concurrent terms of one-year initial confinement, one-year extended supervision on two misdemeanor counts, a sentence structure he successfully challenges. Incompatible statutory mandates lie at the heart of the problem. In the first instance, § 973.01(1)  requires bifurcated misdemeanor sentences, which simply isn’t possible for unenhanced misdemeanors: a bifurcated sentence must be served in prison,