On Point

State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10

court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply

The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.

State v. Brian K. Goodson, 2009 WI App 107, followed. Goodson recognizes that judicial bias may exist in one of two, “alternative” forms: objective appearance of bias; and bias-in-fact. Both were apparent in Goodson, while in this instance only the objective appearance of bias is manifest. That is enough, the court rejecting the State’s contention that both forms must be present:

¶7        However, unlike the second, alternative basis for our objective bias conclusion in Goodson, this case is not one of those rare instances where actual bias is demonstrated on the record.  In Goodson, the circuit court freely acknowledged it had prejudged the outcome and was enforcing its earlier promise to impose the maximum sentence.  In contrast, here the court did not explicitly invoke its earlier promise to impose the maximum when providing its sentencing reasons.[2]

Alan Ward v. Deppisch, 7th Cir No. 08-2809, 07/23/2010

7th circuit decision, review of unpublished court of appeals decision

Habeas – Procedural Default

The state argues that Ward procedurally defaulted his claim because he failed to fairly present the Wisconsin courts with a federal issue, and the state courts ruled against Ward based on adequate and independent state law grounds. We disagree. A review of Ward’s postconviction motion before the state court shows that he fairly presented a federal issue. Ward claimed that Opgenorth provided ineffective assistance of counsel because he failed to withdraw his guilty plea. Ward cited the Sixth and Fourteenth Amendments, Strickland v. Washington, and a number of state cases involving con- stitutional analysis. While Ward’s motion did not provide a highly detailed factual basis for Opgenorth’s alleged deficient conduct or a precise account of how that conduct prejudiced Ward, it adequately called to mind a specific constitutional right—the Sixth Amend- ment right to effective assistance of counsel—and alleged a pattern of facts that is well within the mainstream of constitutional litigation of that right. See Perruquet, 390 F.3d at 512 (“Whatever gaps there may be in [defendant’s] petition and supporting memorandum, the basic rationale of [defendant’s] due process argument is readily discernible.”). Ward’s claim contains enough detail to have sufficiently alerted the state court to his federal constitutional claim.

… While Ward’s federal argument is more developed than it was before the state court (as one would expect with the benefit of counsel), the substance is the same: that Opgenorth ignored requests to move to withdraw the guilty plea. See Picard v. Connor, 404 U.S. 270, 277 (1971) (holding that “variations in the legal theory or factual allegations” of a claim do not bar review so long as the substance of the federal claim remains the same).

Habeas – Evidentiary Hearing

AEDPA governs the availability of evidentiary hearings on federal habeas review, and generally bars them except in narrow exceptions inapplicable to Ward. See 28 U.S.C. §§ 2254(e)(2)(A), (B). But § 2254(e)(2)’s bar only applies when the failure to develop the factual basis for a claim is attributable to the petitioner. Williams v. Taylor, 529 U.S. 420, 435 (2000); Davis v. Lambert, 388 F.3d 1050, 1059-60 (7th Cir. 2004). Here, it is through no fault of Ward that the factual basis of his claim has not been developed. Ward diligently sought a Machner hearing at every step in his state court proceedings, but those requests were denied. Section 2254(e)(2) thus does not bar an evidentiary hearing for Ward. Allen v. Buss, 558 F.3d 657, 664-65 (7th Cir. 2009) (§ 2254(e)(2) does not block evidentiary hearing where state court did not fully consider evidence petitioner had put forth); Davis, 388 F.3d at 1060 (§ 2254(e)(2) no bar where petitioner was “diligent in pursuing his opportunities to develop the necessary facts in state court.”).

With AEDPA posing no bar, Ward is entitled to an evidentiary hearing in federal court if (1) he has alleged facts which, if proved, would entitle him to habeas relief and (2) the state courts, for reasons beyond his control, never considered his claim in a full and fair hearing. Davis, 388 F.3d at 1061; Matheney v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001). For the reasons explained below, we find that Ward has satisfied these require- ments. Ward has alleged facts which if proven would entitle him to habeas relief on his ineffective assistance of counsel claim, and despite his efforts, the state courts never considered the claim in a full and fair hearing.

Ward alleges that his attorney failed, despite Ward’s insistence, to file a pre-sentening motion to withdraw guilty plea. The court says that this allegation, if true, would constitute deficient performance. The state court never held a hearing on the allegation, so the habeas court must do so now. The court provides exceptionally little analysis on potential deficient performance, except to say: “The decision whether or not to plead guilty is a major one that rests ultimately with the client, and a lawyer who disregards specific instructions as to such a decision acts unreasonably.” Plea-withdrawal isn’t quite the same thing as as plea-entry. However, the State conceded that if counsel had refused to abide by a request to file a motion for plea-withdrawal, then counsel’s performance was deficient. so the court had no need to analyze the question in any detail.

As for prejudice, Ward must show reasonable probability that: he would have insisted on trial, but for counsel’s error; and that the trial court would have granted plea-withdrawal. The first showing is met implicitly by his alleged insistence on seeking plea-withdrawal. The second implicates the “fair and just reason” for pre-sentencing plea-withdrawal. Ward posits confusion: “Given the broad discretion Wisconsin courts have in this area, we find that there is a reasonable probability that the trial court would have found that there was fair and just reason to permit Ward to withdraw his plea. See Jenkins, 736 N.W.2d at 33; see also Garcia, 532 N.W.2d at 117 (‘confusion is a fair and just reason for withdrawal’).”

seventh circuit decision; denial of rehearing and en banc, 10/28/10

Habeas – Filing Deadline

For purposes of the federal habeas 1-year statute of limitations, a state court’s decision to accept an untimely filing makes the postconviction review “properly filed” but it doesn’t make it retrospectively “pending” so as to toll the limitation period.

Griffith seeks federal habeas review of his state court conviction. The limitation provision requires filing within within one year of “the date on which the judgment became final by the conclusion of direct review,” 28 U.S.C. §2244(d)(1)(A). But (d)(2) excludes from this period the time during which a “properly filed” collateral-attack is “pending” in state court. Griffith undertook a collateral attack but after the Illinois court of appeals denied it, Griffith was late in filing a petition seeking review from the Illinois supreme court. That court nonetheless granted Griffith’s motion “to accept his petition instanter.” The supreme court ultimately denied the petition. Griffith filed his subsequent 2254 habeas within 1 year of the date the state supreme court denied his petition for review, but more than 1 year had elapsed when all the time was considered. The 7th now says, all the time must be considered.

A court that decides to accept an untimely filing could say any of three things: (1) we accept this filing despite its belated submission; (2) we grant a retroactive exten- sion of time; or (3) we accept this filing instanter. As far as we can see, these are identical for the purpose of Illinois law. See, e.g., Wauconda Fire Protection District v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 424–29, 828 N.E.2d 216, 220–23 (2005). More importantly, they are identical for the purpose of federal law. (The meaning of “pending,” a term in a federal statute, is a question of federal law.) The point of Fernandez is that state courts’ decisions do not have retroactive effect. Once a petition has stopped being “pending,” nothing a state court does will make it “pending” during the time after the federal clock began to run and before another paper is filed in state court. Fernandez holds that, if a state court accepts an untimely filing, a proceeding is “pending” from the paper’s filing date; thus Griffith had a “pending” proceeding from September 1, 2005, when he tendered the motion for leave to file instanter, through December 1, 2005, when the state court denied the petition for leave to appeal. But nothing was pending from August 18 through 31. This meant that the year prescribed by §2244(d)(1) expired on November 17, 2006, and Griffith’s federal petition was 13 days late.

The court also rejects equitable tolling, which can be established through “egregious behavior” by the petitioner’s attorney. But mere miscalculation or misunderstanding of the limitation date doesn’t meet that standard. “Such a blunder does not extend the time for filing a collateral attack.”

Denial of petition for rehearing (en banc) garners 3 dissenting votes. The dissenters make several points,  but the largest one is made only implicitly: 2554 habeas litigation is extremely technical, and not for the faint-hearted. In particular, the 1-year statute of limitations is going to be enforced remorselessly, as this case indicates. But does this case have any implications for Wisconsin-related habeas practice? There is no analog in Wisconsin procedure to Illinois’ authority to extend collateral review deadlines. If a Wisconsin defendant misses the notice of appeal deadline on a 974.06 motion, then that is the end of it; it’s a civil appeal, therefore, the NOA deadline isn’t extendible. Same for a tardy petition for review of a court of appeals 974.06 decision (the PFR deadline isn’t extendible). So it’s hard to imagine a Griffith-type situation arising. Of course, a missed deadline on direct appeal is something else, because that deadline may be extended. E.g., State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992) (court of appeals can reinstate, via habeas, direct appeal deadlines lost due to ineffective assistance of counsel); State v. Christine M. Quackenbush 2005 WI App 2 (court of appeals can reinstate, on procedural motion, lost notice of intent deadline); State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996) (supreme court can reinstate direct-appeal petition for review deadline lost due to ineffective assistance). Why does this distinction matter? as explained by Jimenez v. Quarterman, 129 S. Ct. 681, 686 (2009), “where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A)” (emphasis added). But: never say never! A missed PFR deadline may be extended due to court of appeals clerical error, State ex rel. Jose DeJesus Fuentes v. Court of Appeals, 225 Wis.2d 446, 593 N.W.2d 48 (1999), and although that case arose on direct appeal and its holding might be limited to that context, it can’t be assumed that it is so limited. That possibility shouldn’t, however, obscure the larger point that collateral attack extensions are a rare, indeed as-yet unseen, bird.

State ex rel. Titus Henderson v. Raemisch, 2010 WI App 114; pro se; Resp. Br.

Partial dismissal of a prisoner lawsuit doesn’t counts as a “strike” within the meaning of the  § 801.02(7)(d) “three-strike” provision of the Wisconsin Prisoner Litigation Reform Act.

The PLRA regulates “prisoner” lawsuits. Typically, these relate to conditions of confinement, something the SPD doesn’t provide representation for, but our courts in their infinite wisdom apply the strictures of the PLRA to matters of SPD concern such as cert review of revocations, State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, and habeas challenges to release-date calculation, State ex rel. Joseph Stinson v. Morgan, 226 Wis.2d 100, 593 N.W.2d 924 (Ct. App. 1999). So keeping up with PLRA developments may be worth your while.

Henderson had filed several prior prison-litigation lawsuits, each containing multiple claims in which some but not all claims were dismissed as frivolous. An “action” dismissed as frivolous counts as a “strike” and when you accumulate three such strikes, the PLRA forbids additional prison litigation without you prepaying filing fees. The court takes a detailed look at the meaning of the term “action,” and concludes it means the entire proceeding, not just “parts” (which is to say, “claims”) within it.

¶26      Thus, relying on the authorities discussed above, we conclude that “action,” as it is used in WIS. STAT. § 801.02(7)(d), denotes an entire legal proceeding, lawsuit or controversy. By definition, a partial dismissal or the dismissal of a claim or claims when the suit proceeds on other valid claims is not the dismissal of an “action” within the meaning of § 801.02(7)(d). Accordingly, a partial dismissal does not count as a strike under the three-strikes provision of Wisconsin’s PLRA.

State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply

Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance

Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel, a majority of the court finding both deficient performance and prejudice. The majority reasons as follows.

The parties agree that the State cannot exact a penalty for exercising fourth amendment rights, ¶¶20-21, but the question here more specifically is whether an arrestee does have the right to refuse to give a DNA sample. The State argues that the law on this point in Wisconsin hasn’t been resolved and, because counsel can’t be held deficient for failing to raise an unsettled proposition, State v. Maloney, 2005 WI 74, ¶23, Banks’ claim necessarily fails, ¶22. The majority rejects the assumption that the law on the point is unsettled, ¶25 n. 4:

… Wisconsin has no statute providing for the collection of DNA from arrestees. Nothing in our review of this emerging debate in other states suggests that the law in Wisconsin is unsettled. Accordingly, Banks’ attorney was not relieved of her duty to object to testimony and argument suggesting Banks’ invocation of a constitutional right was inculpatory. In Wisconsin, the warrantless collection of a DNA sample is authorized only after conviction.

The majority also analogizes to prosecutorial comment on a defendant’s refusal to consent to warrantless search, something non-controversially seen as a violation of due process, ¶24.

¶25     Accordingly, when the State introduced testimony regarding Banks’ refusal to voluntarily submit a DNA sample, Banks’ attorney should have challenged the evidence. When the State commented on Banks’ refusal during closing, suggesting his refusal demonstrated consciousness of guilt, Banks’ attorney should have objected. The test for deficient performance is an objective one that asks whether trial counsel’s performance was objectively reasonable under prevailing professional norms. Kimbrough, 246 Wis. 2d 648, ¶31. Here, it was not.[4]

As for prejudice: the case was close, so this improper evidence may have tilted the balance, and a new trial therefore warranted, ¶¶27-28.

The dissent narrowly disagrees, perceiving “that the law is in flux as to whether law enforcement may obtain a DNA sample of an arrestee without a warrant,” therefore counsel was under no obligation to argue an “unsettled” point of law, ¶50. But the dissent importantly cautions against a “myopic understanding” of this principle. The larger idea, which the dissent ringingly endorses, is that the right to refuse consent to a warrantless search would be eliminated if it could be used as evidence of guilt. It is just that in this particular context, the right to refuse consent is, in the dissent’s view, still up in the air, ¶51.

Instruction – Recording Policy Interrogation

A statement made by Banks while in custody was spontaneous, not the product of “interrogation,” therefore Banks wasn’t entitled to a §972.115(2)(a) instruction that the jury could consider the absence of recording of the interrogation and statement, ¶¶30-36.

Counsel – Effective Assistance

Counsel’s decision, made after consultation with Banks who assured her it wouldn’t lead to harm, to disclose to the State evidence impeaching a State’s witness was a product of reasonable strategy, even though the disclosure did lead to evidence damaging to Banks, ¶¶37-40.

Evidence – Impeachment – Prior Convictions

A witness is subject to prior-conviction impeachment if guilt has been found in the case even if the witness has not yet been sentenced, ¶41, citing, State v. Trudeau, 157 Wis. 2d 51, 54, 458 N.W.2d 383 (Ct. App. 1990).

Sufficiency of Evidence – Possession of Firearm by Felon

Inconsistencies in the testimony of the lone eyewitness to place a gun in Banks’ hand were for the jury to resolve, the evidence thereby sufficing to support conviction for possession of firearm by felon, ¶¶43-47.

State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply

Venue – Instruction

¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v. Corey J.G., 215 Wis. 2d 395, 409, 572 N.W.2d 845 (1998); Swinson, 261 Wis. 2d 633, ¶19. A defendant need not challenge venue, or request a venue instruction, before trial; instead, he or she may put the State to its proof and determine whether an instruction is warranted after hearing the evidence. The jury instruction conference is a permissible time at which to request a venue instruction. Accordingly, the court erred when it refused to so instruct the jury.

The trial court refused to give a venue instruction because objection to venue must be raised before trial. As the blockquote indicates, this was wrong. As to the merits — venue instruction isn’t given automatically, but only when contested, ¶10 — the court separately rules that venue wasn’t proven so that judgment of acquittal must be entered on that charge.

Venue – Proof – Obstructing

Proof of venue in Chippewa County, where the obstructing trial was held, was insufficient, the evidence indisputably showing that the offense occurred in Barron County. (Schultz misled an officer in Barron who was investigating a crime that had occurred in Chippewa.) The State argues that venue in Chippewa was nonetheless appropriate under § 971.19(2) (trial may be in any county in which acts requisite to commission of the offense occurred); the theory was that the misleading statements in Barron led to additional investigative efforts in Chippewa.

¶16 We cannot accept the State’s argument because the obstruction statute, Wis. Stat. § 946.41, clearly contains a temporal element that focuses on the officer’s status at the time of the defendant’s conduct. Obstruction requires proof that the defendant knowingly obstructed an officer while the officer was acting in his or her official capacity and with lawful authority. Henes v. Morrissey, 194 Wis. 2d 338, 353, 533 N.W.2d 802 (1995). Although the obstruction statute evaluates the conduct of two actors—the defendant and the officer—it does so simultaneously, at the time of the defendant’s act. Consequently, the obstruction statute does not contemplate venue in any county where the officer may take further investigative steps. Moreover, if venue may be predicated on subsequent investigative measures, we would have to evaluate each police act following obstruction and determine whether the act was sufficiently attributable to the defendant’s conduct to support venue—an inquiry that may be practically difficult, if not impossible. We therefore conclude Wis. Stat. § 971.19(2) is inapplicable to the crime of obstructing an officer.

Obstructing – Sufficiency

Schultz’s misrepresentations as to his whereabouts at the time of an offense under investigation supported obstructing conviction, ¶18. State v. Hamilton, 120 Wis. 2d 532, 542, 356 N.W.2d 169 (1984) (refusal to provide identifying information not obstructing), distinguished.

The court stresses that Schultz, unlike Hamilton, did more than merely refuse to identify himself: “Instead, Schultz affirmatively misrepresented his location on the night of the robbery and told Kowalczyk he did not perform at the party as scheduled, frustrating Kowalczyk’s efforts to determine the location of the stolen equipment and the identity of the thief,” id. Schultz argued (Br.-in-Ch., p. 18) that Schultz didn’t impede Kowalczyk, a sheriff’s deputy who merely referred the burglary complaint to the local town officer for investigation. If you give false information have you necessarily made the investigation more difficult? That doesn’t seem right — it would be in the nature of a conclusive presumption — but it does seem to be the court’s position, at least implicitly.

Instruction – Possession of Recently Stolen Property

On charge of theft, standard instruction on recently stolen property was properly submitted to jury, ¶19. Instructional language, “Evidence has been presented that the defendant possessed recently stolen property,” didn’t invade jury’s fact-finding province.

court of appeals decision (3-judge, not recommended for publication); for Oswald: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Evidence – Consciousness of Guilt

Testimony from the Oswald’s parole agent, that Oswald missed an appointment shortly after the incident in question and that he seemed nervous when they later met, was relevant as “consciousness of guilt.” Admissibility wasn’t substantially outweighed by danger of unfair prejudice, taking into account an instruction limiting its use.