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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
Federal Habeas – Procedure — Appellate — Certificate of Appealability: Necessity
Rufus West v. Schneiter, 485 F. 3d 393 (7th Cir. 5/4/07)
Issue/Holding: “we now join the other circuits that have considered this issue and hold that §2253(c)(1) requires a certificate of appealability for any appeal in a proceeding under §2255 or where ‘the detention complained of arises out of process issued by a State court.’”
The court acknowledges that “(a) notice of appeal acts as a request for a certificate whether or not the prisoner files a separate application,”
Federal Habeas – Procedure – Appellate – Jurisdiction – Timeliness of NOA – Prison Mailbox Rule
Edmund Ingram v. Jones, 507 F. 3d 640 (Nos. 06-2766 & 06-2879, 11/14/07)
Issue/Holding: If a prison has a “legal mailing system,” and the inmate isn’t obligated to pay postage for legal mail, then the notice of appeal may be deemed filed when deposited in the system even without prepaid postage. However, “if a prison does not have a legal mailing system, the prisoner is required to show,
Conspiracy to Manufacture Controlled Substance — § 961.41(1x), Elements — Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶18 Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x).[8] Section 939.31 provides:
…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may,
Conspiracy to Manufacture Controlled Substance — Undercover Agent as Party to Agreement, Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶19 The crime that is the subject of the conspiracy need not be committed in order for a violation of Wis. Stat. § 939.31 to occur; rather, the focus is on the intent of the individual defendant. State v. Sample,
Conspiracy to Manufacture Controlled Substance — Sufficiency of Evidence – Knowledge of Intended Use – Agreement
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Evidence of conspiracy to manufacture controlled substance is sufficient, notwithstanding that the psilocybe spores that defendant sold were themselves legal, given “abundant evidence from which it is reasonable to infer that Routon marketed the psilocybe spores to persons who wanted to use them for the illegal purpose of growing mushrooms and that this was the predominant part of the business,” ¶30.
Possession of Controlled Substance, PTAC – Sufficiency of Evidence
State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff
Issue/Holding:
¶22 Dukes contends that this evidence is insufficient because there was “no physical evidence linking [him] to the drug house and the drugs in the drug house,” because neither his fingerprints nor DNA were on any of the items recovered. He claims he did not live in the apartment, insisting that the evidence shows only that he was found sleeping on the floor where an overnight guest might sleep,
Keeping Drug Vehicle, § 961.42(1) – Elements, Generally
State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶2 … Because the State charged Slagle with keeping or maintaining a “vehicle” used for “keeping” cocaine, the State needed to prove the following three elements:
1. Slagle kept or maintained a vehicle.
2. Slagle’s vehicle was used for keeping cocaine. “Keeping” requires that the cocaine be kept for the purpose of warehousing or storage for ultimate manufacture or delivery.
Keeping Drug Vehicle, § 961.42(1) – Element of “Keeping” – More than Mere Transport Required
State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶7 The interpretation of the statutory term “keeping” as “warehousing or storage for ultimate manufacture or delivery” comes from State v. Brooks, 124 Wis. 2d 349, 354-55, 369 N.W.2d 183 (Ct. App. 1985). Neither party challenges this interpretation of the statute. [5] Furthermore, Slagle does not dispute that the evidence shows the cocaine in his truck was “for ultimate manufacture or delivery.” The only dispute here is whether the trial evidence shows the cocaine was being “warehoused” or “stored” in Slagle’s truck.
Plea-Withdrawal, Pre-Sentencing – “Fair and Just Reason” – Claim of Innocence: Insufficient, Alone
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: “A claim of innocence, of course, is not sufficient as a stand-alone reason to permit a plea withdrawal even before sentencing. State v. Harvey, 2006 WI App 26, ¶23, 289 Wis. 2d 222, 239, 710 N.W.2d 482, 490 (‘An assertion of innocence,
Plea-Withdrawal – Pre-Sentence – “Fair and Just” Reason: Claim of Unrealized Benefit from Efforts to Cooperate with Law Enforcement
State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether Jenkins’ claim that he (wrongly) thought he would be guaranteed an opportunity to work with law enforcement in return for potential sentencing benefit was a fair and just reason to allow pre-sentencing plea withdrawal.
Holding:
¶71 First,
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