On Point

Harrison Franklin v. McCaughtry, 398 F.3d 955 (7th Cir 2005), granting habeas relief in unpublished opinion of Wis COA

Issue/Holding: The tripartite test for judicial bias (subjective inquiry answered by trial judge’s determination of own impartiality; objective examination as to whether reasonable person could question judge’s impartiality; and if partiality is established, whether it was harmless, see State v. Rochelt, 165 Wis.

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the juvenile’s request for substitution is denied,” ¶9; it plainly provides for “review[] by the chief judge of the judicial administrative district.”)

¶10.

Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder

Issue/Holding:

¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request “either before or during the plea hearing ….”

State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams

Issue/Holding: Defendant’s withdrawal of his NGI plea prevented him from later invoking the right of judicial substitution provided by § 971.20(5), where a new judge was subsequently assigned and no prior right to substitution invoked.

The court’s analysis doesn’t track the actual language of the statute – “Because Norwood’s plea withdrawal constitutes a ‘proceeding’ within the meaning of § 971.20(5),

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding:

¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496,

State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)

Issue/Holding( Dicta): ¶12, n. 6:

The State also draws a distinction between statutory habeas corpus and common law habeas corpus, contending that the circuit court properly ruled that Pharm was not entitled to statutory habeas corpus relief because he was committed under a valid judgment of commitment.

Michael A. Sveum v. Smith, 403 F. 3d 447 (7th Cir. No. 05-1255, 3/31/05)

Issue/Holding: Denial of FRCP 60(b) motion to reopen, which was in effect a “mislabeled habeas corpus petition reasserting” previously rejected claim, required certificate of appealability. Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004) (district court’s dismissal of motion, on ground it is unauthorized successive collateral attack, constitutes final order within 28 U.S.C.

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue/Holding:

¶45      We further reject Stank’s argument that insufficient evidence existed to support the “intent to deliver” element of count two. According to Peasley v. State, 83 Wis. 2d 224, 229, 231-32, 265 N.W.2d 506 (1978), the finder of fact may consider many factors indicative of intent to deliver,

State v. Rickey Eugene Pinkard, 2005 WI App 226
For Pinkard: John J. Grau

Issue/Holding: Someone holding drugs for another person and planning to return the drugs to that person intends to deliver within the meaning of § 961.41(1m). State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995) (conspiracy to deliver not supported where only evidence is that seller intended to sell small amount for buyer’s personal use) distinguished,

State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶11      “A defendant seeking to withdraw a plea of guilty or no contest prior to sentencing must show that there is a ‘fair and just reason,’ for allowing him or her to withdraw the plea.” State v. Kivioja, 225 Wis. 2d 271, 283,