On Point

Docket

Decision below: Wood v. Milyard, 10th Cir, 11/26/10

Questions Presented (by the Court):

1) Does an appellate court have the authority to raise sua sponte a 28 U.S.C. §2244(d) statute of limitations defense?

2) Does the State’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amount to a deliberate waiver of any statute of limitations defense the State may have had?

State v. Dion M. Echols, 2010AP2626-CR, District 1, 9/27/11

court of appeals decision (not recommended for publication); for Echols: Amelia L. Bizzaro; case activity

Evidence held sufficient to establish “great bodily harm” element of 1st-degree sexual assault, § 940.225(1)(a), where the harm was inflicted a short time after the assault.

¶23      In this case, the trial court properly determined that Echols’ shooting M.F. subsequent to the nonconsensual sexual contact constituted great bodily harm.  

Outagamie County v. Paul S., 2011AP920, District 3, 9/27/11

court of appeals decision (1-judge, not for publication); for Paul S.: Shelley Fite, SPD, Madison Appellate; case activity

¶9        Wisconsin Stat. § 51.15(5) provides an individual may “not be detained by the law enforcement officer or other person and the facility for more than a total of 72 hours, exclusive of Saturdays, Sundays, and legal holidays” without a hearing.  

Mr. Badger burrows through the known Internets so you don’t have to …

Mike Sacks, back in the saddle, now sallying forth from HuffPost.

Effective Assistance / GPS litigation. Although recent Ohio precedent establishes that GPS surveillance isn’t a “search” or “seizure” under the 4th A warrant requirement, persuasive foreign authority holds to the contrary, namely United States v.

State v. Daniel R. Doyle, 2010AP2466-CR, District 4, 9/22/11

court of appeals decision (1-judge, not for publication); for Doyle: John C. Orth; case activity

Transport of drunk driving suspect 3-4 miles to local police station for purpose of administering field sobriety tests didn’t covert Terry stop into arrest, given that extreme, adverse weather conditions rendered impractical such testing at the scene.

¶11      Terry is codified in Wis.

State v. Anastasia A. Lusty, 2010AP2827-CR, District 2, 9/21/11

court of appeals decision (not recommended for publication); for Lusty: Chandra N. Harvey, SPD, Madison Appellate; case activity

Independent police investigation sufficiently corroborated enough details of tips from anonymous informants to support probable cause for a search warrant.

¶9        We reject Lusty’s argument.  Based on our reading of the record, we are more than satisfied that the facts before the magistrate,

seventh circuit court of appeals decision

Habeas – Ineffective Assistance, State Court Failure to Reach – Standard of Review 

… When “no state court has squarely addressed the merits” of a habeas claim, however, we review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243, under which we “ ‘dispose of the matter as law and justice require.’ ” Id. at 326 (quoting § 2243). This is “a more generous standard,” George v.

seventh circuit court of appeals decision

Habeas – Counsel – Appeal 

When a defendant in a criminal case specifically instructs a lawyer to file a notice of appeal, the lawyer’s failure to do so deprives the defendant of the Sixth Amendment right to counsel, regardless of whether an appeal was likely to succeed. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Peguero v. United States,

State v. Jason D. Spears, 2011AP934-CR, District 1, 9/20/11

court of appeals decision (1-judge, not for publication); for Spears: Kyle S. Conway; case activity

Trial court’s failure to explain rationale for sentence violated State v. Gallion, 2004 WI 42, ¶¶44-49, 270 Wis. 2d 535, 678 N.W.2d 197, and requires remand for resentencing.

¶11      Here, the circuit court did not explain how Spears’s criminal history impacted its sentencing decision,

State v. Aaron Deal, 2010AP1804-CR, District 1, 9/20/11 

court of appeals decision (not recommended for publication); for Deal: James A. Rebholz; case activity

Counsel’s refusal to argue to the jury that it should return a guilty verdict on felony murder, submitted as a lesser offense option of first-degree intentional homicide, wasn’t deficient in light of the defendant’s insistence on an all-or-nothing strategy.

¶8        At the Machner hearing,