On Point

7th circuit court of appeals decision

Habeas – Certificate of Appealability

We pause briefly to note the district court’s error in denying a certificate of appealability in this case. The statute provides that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has interpreted this language to require a showing that “reasonable jurists could debate whether (or,

State v. Joe R. Hechimovich, 2010AP2897-CR, District 4, 4/7/11

court of appeals decision (1-judge, not for publication); for Hechimovich: Corey C. Chirafisi; case activity

Compliance with implied consent law found. Although Hechimovich initially requested a breath test, after his blood was drawn at the hospital, the deputy “gave ample opportunity” during a 10-minute period for Hechimovich to renew the request for breath test. The deputy “conclud(ed) that when Hechimovich did not bring it up following his blood test,

State v. Michael L. Gengler, 2010AP1999, District 2, 4/6/11

court of appeals (1-judge, not for publication); pro se; case activity

¶6        The trial court determined that the complaint and the amended complaint were proper, stating,

The complaint was duly sworn on oath.  The complaint was signed and filed by an assistant district attorney as prescribed by WIS. STAT. § 968.02(1).  The complaint alleges multiple violations of WIS.

State v. Rafael Labedzki, 2010AP2501-CR, District 2, 4/6/11

court of appeals decision (1-judge, not for publication); for Labedzki: Walter Arthur, Piel, Jr.; case activity

Reasonable suspicion for sobriety testing upheld, where officer had basis for concluding Labedzki was driving while intoxicated after an unchallenged stop for speeding. In brief: “Given that the trooper observed an alcoholic smell coming from Labedzki’s vehicle, a passenger who appeared drunk, bloodshot and glassy eyes on Labedzki,

State v. Matthew M. Gilbert, 2010AP2672-CR, District 2, 4/6/11

court of appeals decision (1-judge, not for publication); for Gilbert: Christopher Lee Wiesmueller; case activity

Given trial court findings of fact, the officer reasonably believed that Gilbert’s registration plate lamp and brake lamps were inoperable, and thus had reasonable suspicion to make the stop. Inability to testify as to which lights were actually inoperable doesn’t detract from support for the stop.

County of Sheboygan v. Jeffrey L. Bubolz, 2010AP2997, District 2, 4/6/11

court of appeals decision (1-judge, not for publication); for Bubolz: Casey J. Hoff; case activity

Ignoring a warning sign that a road is closed except to local traffic creates reasonable suspicion for a traffic stop, even though the sign was an “unofficial” one put up by the contractor.

¶11      Failure to adhere to official traffic signs is a violation of WIS.

William Kerr v. Thurmer, 7th Cir No. 09-1032, 3/28/11 – Part III

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part II (default; standard of review),

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part III (evidentiary hearing, GP advice), here.

Habeas – Procedural Fault

Kerr’s pro se § 974.06 motion asserted ineffective assistance of counsel as a ground for relief.

William Kerr v. Thurmer, 7th Cir No. 09-1032, 3/28/11 – Part I

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part II (procedural default) is here; Part III (evidentiary hearing, guilty plea advice),

Docket

Decision below (621 F.3d 296 (3rd Cir 2010))

Question Presented:

Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.

Scotusblog page

Caselaw in this Circuit has long rejected suspicionless jail strip searches for minor offenses. Mary Beth G.