On Point

Blum v. 1st Auto & Casualty Insurance Company, 2010 WI 78

¶42 We next address whether a court of appeals decision retains any precedential value when it is overruled by this court. We hold that when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.

A less obscure problem than you might think.

State v. Landray M. Harris, 2010 WI 79, reversing unpublished decision; for Harris: Michael K. Gould, SPD, Milwaukee Appellate; Resp. Br.; Reply; Amicus

¶3 We agree with the State and reject the reasonable observer test created by the court of appeals. Sentencing decisions are afforded a presumption of reasonability consistent with Wisconsin’s strong public policy against interference with a circuit court’s discretion.

7th circuit court of appeals decision (en banc)

Second Amendment – Categorical Ban on Possession

Categorical legislative bans on gun possession are permissible under the second amendment, including those for convictions of misdemeanor crimes of domestic violence per 18 U.S.C. § 922(g)(9), which the court now upholds.

District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. Chicago,

7th circuit court of appeals decision

Habeas – Miranda Waiver

Viewed through the deferential lens of 2254 habeas review, a state court finding that the severely mentally impaired Collins knowingly and intelligently waived his Miranda rights an incriminatory statement was not unreasonable.

Collins had a Wechsler-scale IQ in the low- to mid-60s, exacerbated by a brain aneurysm that damaged his frontal lobes and left him with a language disorder.

State v. Lyle A. Lay, No. 2010AP81-CR, District III, 7/13/10

court of appeals decision (1-judge; not for publication); for Lay: Timothy A, Provis; BiC; Resp.; Reply

An Alford plea may be one of “no contest” as well as “guilty”:

¶8      Lay is mistaken that an Alford plea cannot be entered within the context of pleading no contest.

decision below (unpublished); for Marinez: Ralph Sczygelski

Issues (as provided by the court):

Did the circuit court erroneously exercise its discretion by admitting other acts evidence of the minor child’s videotaped statement without excerption of the hand-burning references?

Did the court of appeals err by applying the de novo standard of review to the circuit court’s decision admitting the minor child’s videotaped statement without excerption of the hand-burning references?

Freddie L. Byers, Jr., v. Basinger, 7th Cir No. 09-1833, 7/9/10

7th Circuit decision

Habeas – Exhaustion

To exhaust a federal claim, a 2254 petitioner must have “fairly presented” it to the state court.

… We use four factors to evaluate whether a petitioner has “fairly presented” his claim: “1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts;

7th Circuit decision

Abstention – SVP Proceeding

The Younger v. Harris abstention doctrine applies to pending ch. 980 proceedings.

What is true is that a person who is in state custody awaiting a determination by the state courts of the legality of his custody may seek federal habeas corpus to challenge that custody without being barred by the Younger doctrine if immediate federal intervention is necessary to prevent the challenge from becoming moot.

Estate of Robert C. Parker v. Beverly Enterprises, Inc., 2010 WI 71

The supreme court is empowered to review denial of a petition for leave to appeal non-final order by the court of appeals.

¶45 The language of our case law is strong. We have stated that “[w]here the court of appeals denies permission to appeal from an order conceded by the parties to be nonfinal,

State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply

Jury Instructions – Exposing Child to Harmful Materials

The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.

¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law.