On Point

Question Presented:

May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?

Docket: 09-9000

• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Scotusblog analysis notes,

U.S. v. O’Brien, USSC No. 08-1569, 5/24/10

§ 924(c)(1)(B)(ii), which exposes a person convicted of possessing, using or carrying a machinegun during certain federal crimes to a mandatory minimum sentence of 30 years is an offense element subject to proof beyond reasonable doubt at trial rather than a penalty enhancer provable by mere preponderance of the evidence at sentencing.

The border between offense element and sentence enhancer remains indistinct at crucial junctures.

U.S. v. Marcus, USSC No. 08-1341, 5/24/10

… (A)n appellate court may,in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness,

Wisconsin supreme court decision

Sixty-day suspension imposed for conceded misconduct consisting of: failure to take timely action with respect to civil forfeiture action against client; failure to respond to client’s reasonable requests for information and to timely communicate case developments; failure to explain legal implications of various dealings related to representation, ¶20.

decision below: unpublished (2009AP118); for Burns: David R. Karpe

Issue:

Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?

court of appeals decision (1-judge; not for publication); for Dewitt: Thomas E. Hayes; BiC; Resp.

Detention for 90 Minutes not Unreasonable

Stop of motorist Dewitt by officer who, because he was off-duty, could not under departmental rules himself perform arrest, wasn’t unnecessarily prolonged by 90 minute delay until on-duty officer could show up.

¶15 Dewitt has presented no evidence to show that Officer Geffert,

State v. Scott R. Jensen, 2010 WI 38, reversing 2009 WI App 26, prior history omitted; for Jensen: Robert H. Friebert; BiC; Resp.; Reply

¶1   … The issue presented is whether Waukesha County Circuit Court is the proper venue for Jensen’s trial because it is the “circuit court for the county where the defendant resides”

court of appeals decision (1-judge; not for publication); for Jenkins: Walter Arthur Piel, Jr.; BiC; Resp.; Reply

Search & Seizure – Denial of Motion to Suppress without Evidentiary Hearing

¶2 n.2:

Jenkins’ motion papers were inadequate and the circuit court would have been correct in denying him an evidentiary hearing. All Jenkins filed was a one-page motion with the assertion the officers had looked inside his windows;

court of appeals decision (1-judge; not for publication);  for Miske: Sarvan Singh; BiC; Resp.

Terry Stop – Voluntary Encounter

A voluntary encounter, rather than Terry stop, occurred where Miske came to a stop when approaching two squads flanking “an unlit back country road” at 1:00 a.m.:

¶12      When Miske and his partner stopped, they were on a narrow road,

court of appeals decision (1-judge; not for publication); pro se; Resp. Br.

Custody Requirement, sec. 974.06

¶7        However, Olson is barred from collaterally attacking his criminal conviction under Wis. Stat. § 974.06 because he is no longer “‘in custody under sentence of a court.’”  See State v. Theoharopoulos, 72 Wis. 2d 327, 329, 240 N.W.2d 635 (1976) (quoting § 974.06 and recognizing that circuit court lacks jurisdiction to consider a motion for postconviction relief brought under § 974.06 if the defendant has completed his sentence).