State v. Robert Kentrell Gant, 2013AP1842-CR, District 1, 8/26/14 (not recommended for publication); case activity
Trial counsel’s failure to ask a witness at Gant’s second trial about her inconsistent testimony from Gant’s first trial wasn’t ineffective because the omission didn’t prejudice Gant. Further, the witness’s recantation of the testimony she gave at the second trial doesn’t satisfy the newly-discovered evidence test.
State v. Johnnie J., 2014AP144 & 2014AP145, District 1, 8/21/14 (1-judge; ineligible for publication); case activity: 2014AP144; 2014AP145
Assuming trial counsel should have objected to certain expert opinion evidence and hearsay evidence about Johnnie’s behavior, the failure to do so didn’t prejudice Johnnie because of the overwhelming evidence supporting the jury’s verdicts on one of the two grounds for terminating her parental rights.
Thomas Socha v. Gary Broughton, 7th Circuit Court of Appeals No. 12-1598, 8/14/14
In Socha’s previous appeal of the dismissal of his federal habeas petition, the Seventh Circuit held the district court was not compelled to dismiss the petition just because it was filed after the one-year AEDPA deadline because there were a couple possible theories—specifically, equitable tolling or equitable estoppel—for finding the petition was timely filed. Socha v. Pollard, 621 F.3d 667 (7th Cir. 2010). On remand the district court rejected these theories and again dismissed Socha’s petition. The Court of Appeals again reverses the district court. Based on the “unusual obstacles that confronted Socha in filing his petition, his repeated attempts to obtain his record [from his lawyer] and comply with the deadline, and the district court’s initial grant of a motion to extent the deadline, we are convinced that equity requires his failure to file a completed before the deadline to be forgiven.” (Slip op. at 2).
After detailing the difficulties Socha encountered in getting his file from prior counsel, and his limited access to the law library due to his segregation status, the Court of Appeals concludes the only available basis for excusing the late filing is equitable tolling. (Slip op. at 3-8, 13-14). Rejecting the state’s argument that equitable tolling is “a chimera” in view of the fact it has never previously been invoked in a Seventh Circuit case (slip op. at 15), the Court finds the “extraordinary circumstances” in Socha to justify invoking the doctrine in this case. (Slip op. at 16-23).
Equitable tolling is rare, but so are the facts of this case. Based on Socha’s repeated efforts to obtain an unjustifiably withheld file, the minimal time he had in which to complete a petition afterward, and the initial judicial determination that tolling was appropriate, we conclude that it was an abuse of discretion to deny tolling of the AEDPA deadline. We reach this conclusion using the flexible, fact-specific standard described by the Supreme Court in Holland. In light of all the circumstances, Socha is entitled to equitable tolling of the one-year deadline for his habeas corpus petition. (Slip op. at 24).
State v. Andrew M. Obriecht, 2014AP445-CR, District 4, 8/14/14 (1-judge; ineligible for publication); case activity
Obriecht didn’t show the victim’s mental health records might contain relevant information necessary to his defense, so the circuit court properly denied his motion to conduct an in camera review of the records.
Green County DHS v. Barret W.S., 2014AP1155, District 4, 8/14/14 (1-judge; ineligible for publication); case activity
The circuit court didn’t err by allowing a child’s guardians to participate as a party in a proceeding to terminate the father’s rights to the child because, while ch. 48 does not expressly state that guardians are “parties” in a termination proceeding, pertinent statutes support allowing the guardians to participate as a party. In addition, the circuit court properly granted summary judgment against the father and didn’t err in making certain evidentiary rulings during the dispositional phase.
State v. Kent W. Hubbard, 2014AP738-CR, District 2, 8/13/14 (1-judge; ineligible for publication); case activity
The totality of the circumstances established probable cause to arrest Hubbard for operating with a detectable level of restricted controlled substance. Further, the warrantless blood draw was justified under the exigent circumstances test articulated in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), because there was evidence that Hubbard had used marijuana and alcohol, and evidence regarding the latter would be lost if the police took time to get a warrant.
Ozaukee County v. Laura B., 2014AP1011-FT, District 2, 8/13/14 (1-judge; ineligible for publication); case activity
The evidence was sufficient to justify an extension of Laura B.’s commitment and an order for involuntary medication and treatment.
City of LaCrosse v. Corina Ducharme, 2014AP374, District 4, 8/7/14 (1-judge; ineligible for publication); case activity
The stop of Ducharme’s car was justified under the community caretaker doctrine because the officer had objectively reasonable grounds to be concerned about the safety of the driver, as the car was parked at a boat landing at 2:40 a.m. with its right blinker on, and a right turn would take the car toward the water.
