On Point

State v. Armando J. Castanada, No. 2009AP1438-CR, District I, 6/15/10

court of appeals decision (3-judge, not recommended for publication); for Castanada: Jeremy C. Perri; BiC; Resp.; Reply

Appellate Review – Implicit Findings

¶30     The postconviction circuit court did not make any express findings as to the credibility of any of the witnesses’ testimony. However, as the State observes, when the circuit court does not make express findings,

State v. Daniel Arends, 2010 WI 46, affirming as modified, 2008 WI App 184; for Arends: Leonard D. Kachinsky

Procedure clarified for handling discharge petitions under recently amended § 908.09 :

¶3   We conclude that § 980.09 requires the circuit court to follow a two-step process in determining whether to hold a discharge hearing.

¶4   Under § 980.09(1),

Issues: (1) Whether it is appropriate under § 2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.

Docket: 09-1088

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

(Links,

7th circuit court of appeals decision

Judges – Elections – Partisan Affiliation, Endorsements

The judicial candidate partisan affiliation ban, SCR 60.06(2)(b)1, violates the first amendment.

The crux of the state’s concern here seems to be that a judge who publicly affiliates with a political party has indicated that he is more inclined toward that party’s stance on the variety of legal issues on which that party has a position.

Dolan v. United States, USSC No. 09-367, 6/14/10

This case concerns the remedy for missing a statutory deadline. The statute in question focuses upon mandatory restitution for victims of crimes. It provides that “the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” 18 U. S. C. §3664(d)(5). We hold that a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution—at least where,

Holland v. Florida, USSC No. 09-5327, 6/14/10

Habeas – Filing Deadline – Equitable Tolling, Generally

The 1-year limitations period for filing an 18 U.S.C. §2254 habeas petition is subject to “equitable tolling”:

We have not decided whether AEDPA’s statutory limitations period may be tolled for equitable reasons. … Now, like all 11 Courts of Appeals that have considered the question, we hold that §2244(d) is subject to equitable tolling in appropriate cases.

7th circuit court of appeals decision

Issues as Defined by Certificate of Appealability

Holmes’s failure to brief on appeal the merits of his constitutional claims did not waive them, because the order granting certificate of appealability “invited the parties only to brief the [threshold] procedural issue” of whether the claims had been defaulted in state court.

Even were the government correct that the certificate of appealability is defective for failure to require the parties to brief the constitutional issues,

Bradley K. Darwin, No. 2009AP2608-FT, District IV, 6/10/10

court of appeals decision (1-judge; not for publication); for Darwin: Bill Ginsberg; BiC; Resp.; Reply

¶5     Darwin argues that the officer lacked probable cause to arrest him for OWI. The municipal court made the following findings of fact with respect to probable cause: Darwin signaled a turn, but failed to complete it; he denied drinking;

State v. Melody P.M., No. 2009AP2994, District IV, 6/10/10

court of appeals decision (1-judge; not for publication)

Civil conviction for an ordinance violation may be expunged under § 973.015.

Can’t provide any of the background beyond what’s recited in the opinion, because all traces have been removed from both circuit court and appellate dockets. Makes sense: if you’re going to order expungement then the order ought to have practical meaning.

Barber v. Thomas, USSC No. 09-5201, 6/7/10

Credit for good behavior for a federal prisoner is awarded after, rather than before, the fact under 18 U. S. C. §3624(b)(1).

Of course, computation of federal sentence credit will ordinarily be a matter of indifference to the state practitioner, but the Court’s discussion of the rule of lenity may hold interest:

Fourth, petitioners ask us to invoke the rule of lenity and construe §3624 (2006 ed.) in their favor,