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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.
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(State) Habeas – Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel — Habeas in Court of Appeals as Exclusive Mechanism
State ex rel. Luis Santana v. Endicott, 2006 WI App 13 Pro se Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992): ¶1 […]
Federal Habeas – Procedure — Appellate — Certificate of Appealability: Ineffective Assistance of Counsel Claim
Dennis Thompson, Jr. v. Battaglia, 458 F. 3d 614 (7th Cir. No. 04-3110, 8/14/06) Issue/Holding: Because (c)ounsel’s work must be assessed as a whole,” an ineffective-assistance claim is a single ground for relief for certificate of appealability purposes, though R. 2(c), Rules Governing Section 2254 Cases, does require that the petitioner specify all grounds for relief […]
(State) Habeas Procedure — Claim of Ineffective Assistance of Appellate Counsel — Laches Bar
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals, reconsideration denied, 2006 WI 121 For Coleman: Brian Kinstler Issue/Holding: ¶28 Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge […]
§ 948.31, Interference with Child Custody: Elements, Generally
State v. John W. Campbell, 2006 WI 99, on certification For Campbell: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding: ¶37 For Campbell to be convicted of interfering with custody of Cody, the State had to prove five elements: (1) Cody was younger than 18 years; (2) Denise had legal custody of Cody under a court order […]
Common Law Defenses – Collateral Attack on Custody Order, § 948.31
State v. John W. Campbell, 2006 WI 99, on certification For Campbell: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate […]
Plea-Withdrawal – Post-sentence – Procedure, Generally
State v. James E. Brown, 2006 WI 100, reversing summary order For Brown: Richard D. Martin, SPD, Milwaukee Appellate Issue/Holding: ¶39 After sentencing, in cases that involve an alleged deficiency in the plea colloquy, an attempt to withdraw a guilty plea proceeds as follows. The defendant must file a postconviction motion under Wis. Stat. § 809.30 or other appropriate statute. […]
Plea-Withdrawal, Post-sentencing – Procedure – Shackled, Deaf Defendant: Must Show Actual Interference with Effective Signing
State v. Jeremy D. Russ, 2006 WI App 9 For Russ: Martha K. Askins, SPD, Madison Appellate Issue/Holding: A deaf defendant who had been shackled when he entered a guilty plea and was sentenced must show actual inability to communicate effectively in order to meet his burden of showing a violation of rights. Thus, even […]
Plea-Withdrawal – Pre-Sentence – Fair and Just Reason: Desire to Avoid Prison
State v. Steven A. Harvey, 2006 WI App 26 For Harvey: Christopher William Rose Issue/Holding: Defendant’s recalculation of his chance’s at trial after pleading guilty in an effort to maximize chances of avoiding or reducing prison term, uncoupled to any claim of confusion about the nature of the offense, was not a fair and just […]
Plea-Withdrawal – Pre-Sentence – “Substantial Prejudice” to State: Absence of Assertion
State v. Barry M. Jenkins, 2006 WI App 28, overruled on other grounds, 2007 WI 96 For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate Issue/Holding: ¶31 Our conclusion that Jenkins had a fair and just reason for plea withdrawal does not end our inquiry. We must consider whether the State would be substantially prejudiced by […]
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements
State v. Andrae D. Howell, 2006 WI App 182, PFR filed 9/25/06 (reconsideration of previously issued but subsequently withdrawn opinion) For Howell: Ellen Henak, SPD, Milwaukee Appellate Issue/Holding1: A conclusory allegation suffices to obtain a hearing on a Bangert claim (involving a defect in the plea colloquy), ¶14; however, more is required for a non-Bangert claim, ¶¶21-29. Nor is there, for […]
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.