On Point

State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10

court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply

The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.

Alan Ward v. Deppisch, 7th Cir No. 08-2809, 07/23/2010

7th circuit decision, review of unpublished court of appeals decision

Habeas – Procedural Default

The state argues that Ward procedurally defaulted his claim because he failed to fairly present the Wisconsin courts with a federal issue, and the state courts ruled against Ward based on adequate and independent state law grounds. We disagree. A review of Ward’s postconviction motion before the state court shows that he fairly presented a federal issue.

seventh circuit decision; denial of rehearing and en banc, 10/28/10

Habeas – Filing Deadline

For purposes of the federal habeas 1-year statute of limitations, a state court’s decision to accept an untimely filing makes the postconviction review “properly filed” but it doesn’t make it retrospectively “pending” so as to toll the limitation period.

Griffith seeks federal habeas review of his state court conviction. The limitation provision requires filing within within one year of “the date on which the judgment became final by the conclusion of direct review,” 28 U.S.C.

State ex rel. Titus Henderson v. Raemisch, 2010 WI App 114; pro se; Resp. Br.

Partial dismissal of a prisoner lawsuit doesn’t counts as a “strike” within the meaning of the  § 801.02(7)(d) “three-strike” provision of the Wisconsin Prisoner Litigation Reform Act.

The PLRA regulates “prisoner” lawsuits. Typically, these relate to conditions of confinement, something the SPD doesn’t provide representation for, but our courts in their infinite wisdom apply the strictures of the PLRA to matters of SPD concern such as cert review of revocations,

State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply

Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance

Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel,

State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply

Venue – Instruction

¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v.

court of appeals decision (3-judge, not recommended for publication); for Oswald: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Evidence – Consciousness of Guilt

Testimony from the Oswald’s parole agent, that Oswald missed an appointment shortly after the incident in question and that he seemed nervous when they later met, was relevant as “consciousness of guilt.” Admissibility wasn’t substantially outweighed by danger of unfair prejudice,

State v. Carl Morgan, 2009AP74-CR, District III, 7/20/10

court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply

Sufficiency of Evidence Review

Review of a denied motion for dismissal at the close of the prosecutor’s case-in-chief is waived where the defendant proceeds to put in a defense. All the evidence, including the defense presentation,

State v. Dimitri Henley, 2010 WI 97, on certification; prior history: unpublished decision; related: disqualification litigation; for Henley: Keith A. Findley, John A. Pray, Byron Lichstein; Amicus: SPD

“Wisconsin circuit courts do not have the inherent authority to order a new trial in the interest of justice when a case is not before the court under a proper procedural mechanism,”

Donald J. McGuire, 2010 WI 91, affirming unpublished decision; for McGuire: Robert R. Henak; BiC; Resp.; Reply

Statute of Limitations – § 939.74(3) – Constitutionality

Under § 939.74(3), the statute of limitations is tolled during “the time during which the actor was not publicly a resident within this state.” McGuire wasn’t a Wisconsin resident, but allegedly committed criminal acts in Wisconsin approximately 36 years before charges were issued.