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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 Corpus – Procedural Requirements – Adequate Alternative Remedy
State ex rel. William E. Marberry v. Macht, 2003 WI 79, reversing 2002 WI App 133, 254 Wis. 2d 690, 648 N.W.2d 522 For Marberry: Donald T. Lang, SPD, Madison Appellate Issue/Holding: ¶23. The extraordinary relief provided by the writ of habeas corpus is available only in limited circumstances and is subject to three prerequisites. Haas , 252 Wis. 2d 133, […]
Federal Habeas Procedure – Appellate – Certificate of Appealability – Prison / Jail Discipline
Clyde Piggie v. Cotton, 344 F.3d 674 (7th Cir. 2003) Issue/Holding: Requirement of certificate of appealability doesn’t apply to habeas challenge to state disciplinary proceeding, citing Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2002). Rule reaffirmed: Edward D. Anderson v. Benik, No. 05-2323, 12/20/06 But for another circuit’s rejection of this approach, creating a potentially cert-worthy split, […]
Federal Habeas Procedure – Appellate – Certificate of Appealability – Untimely 2254 Petition
Terrance Bernard Davis v. Borgen, 349 F.3d 1027 ( 7th Cir. 03-2354, 11/20/03) Issue/Holding: A certificate of appealability of dismissal of a habeas petition filed four years after the deadline is vacated: To recap the statutory requirements: (1) A certificate of appealability may be issued only if the prisoner has at least one substantial constitutional question for appeal. […]
Plea-Withdrawal, Post-Sentencing – Procedure – Proof of Knowledge of Elements / Remedy for Lack of Proof<
State v. John A. Jipson, 2003 WI App 222 For Jipson: Martha K. Askins, SPD, Madison Appellate Issue/Holding: ¶16. Jipson’s answers, while incriminating, have no bearing on the focus here. That is, the answers do not establish Jipson knew the State had to prove the purpose of the sexual contact was an element of the […]
Plea-Withdrawal, Post-Sentencing – Procedure – Burden of Proof
State v. John A. Jipson, 2003 WI App 222 For Jipson: Martha K. Askins, SPD, Madison Appellate Issue/Holding: ¶7. When challenging a guilty or no contest plea, the defendant has the initial burden to produce a prima facie case comprised of the following two parts. First, the defendant must show the trial court accepted the […]
Guilty Pleas – Post-Sentencing Plea Withdrawal: Suppression of Material Exculpatory Impeachment Evidence – Constitutional Basis
State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813 For Harris: Steven A. Koch Issue/Holding: ¶16 Therefore, the court of appeals in the instant case misstated the law when it held that “the State violates the Constitution if it withholds the type of […]
Contempt — General Procedure, Remedial vs. Punitive
Evans v. Luebke, 2003 WI App 207, PFR filed 10/23/03 Issue/Holding: Contempt is an inherent judicial power, but is legislatively regulated, such that its exercise outside the statutory scheme is proscribed. ¶17. The required statutory procedure is determined by whether the contempt is remedial or punitive. The latter punishes past conduct for the purpose of upholding authority […]
Contempt — Remedial – Requirements: Evidentiary Hearing and Findings
Evans v. Luebke, 2003 WI App 207, PFR filed 10/23/03 Issue/Holding: ¶24. Upon the filing of a motion seeking remedial sanctions for contempt, an on-the-record hearing must be held “for due process purposes.” See Mercury Records Prods., Inc. v. Economic Consultants, Inc., 91 Wis. 2d 482, 504, 283 N.W.2d 613 (Ct. App. 1979). The evidence adduced at […]
First Amendment – Overbreadth – Travel Restrictions – “Banishment” from Victim’s County
Predick v. O’Connor, 2003 WI App 46 Issue/Holding: Banishment from victims’ county, under harassment injunction, § 813.125, upheld: ¶18 Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances […]
Extradition Procedure – Waiver of Potential IAD (§ 976.05) Violation by Conduct — Discharge of Counsel
State v. Andrew S. Miller, 2003 WI App 74, PFR filed 4/11/03 For Miller: Brian C. Findley, SPD, Madison Appellate Issue/Holding: ¶12. This court has found that rights under the Detainer Act “are statutory in nature and may be waived by a defendant’s request for a procedure inconsistent with its provisions.” Brown, 118 Wis. 2d […]
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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.