On Point

Shawano Co. v. William P. Pari, No. 2009AP2338-FT, District III, 6/15/10

court of appeals decision (1-judge; not for publication); for Pari: John S. Bartholomew; BiC; Resp.; Reply

¶10    We agree that Pari’s minimal deviations within the traffic lane do not alone give rise to reasonable suspicion that he was operating while intoxicated. See id., ¶¶18-21. Nor do we place great emphasis on that fact here when considering the totality of the circumstances. “‘Indeed, if failure to follow a perfect vector down the highway [was] sufficient reason[] to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.’” Id., ¶20 (quoting United States v. Lyons, 7 F.3d 973, 974 (10th  Cir. 1993)).

¶11     Pari was not, however, stopped solely due to his minimal lane deviations. In addition, he was driving eight miles under the speed limit on the open highway. Uelman testified that in his experience this was unusual. Pari also drove over the fog line not once, but twice in a relatively short distance.  This occurred at 3 a.m., not long after “bar time.” Additionally, his steering was jerky rather than smooth as he navigated the highway’s curve. Taking all these facts together, it was reasonable to suspect Pari may have been driving while intoxicated.

State v. Armando J. Castanada, No. 2009AP1438-CR, District I, 6/15/10

court of appeals decision (3-judge, not recommended for publication); for Castanada: Jeremy C. Perri; BiC; Resp.; Reply

Appellate Review – Implicit Findings

¶30     The postconviction circuit court did not make any express findings as to the credibility of any of the witnesses’ testimony. However, as the State observes, when the circuit court does not make express findings, we assume that the circuit court made implicit findings in a manner supporting its decision. State v. Martwick, 2000 WI 5, ¶31, 231 Wis. 2d 801, 604 N.W.2d 552. In State v. Echols, 175 Wis. 2d 653, 673, 499 N.W.2d 631 (1993), our supreme court noted that, absent an express finding by the circuit court, an appellate court may assume that the circuit court made implicit factual findings supporting its decision regarding the credibility of witnesses who provided testimony contrary to the court’s decision. “Where it is clear under applicable law that the [circuit] court would have granted the relief sought by the defendant had it believed the defendant’s testimony, its failure to grant the relief is tantamount to an express finding against the credibility of the defendant.” Id. (citing Marshall v. Lonberger, 459 U.S. 422, 433 (1983)).

¶31    In the present case, had the postconviction court believed the testimony of Castaneda and his corroborating witnesses, Castaneda’s statements would have been obtained in violation of his right to an attorney warranting suppression, and Attorney Boyle’s failure to assert that violation as a basis for suppression, despite her knowledge of the violation, would have been prejudicial to Castaneda. However, the postconviction court’s denial of Castaneda’s motion and its finding that the result of the suppression hearing would not have been different had Castaneda testified at the suppression hearing, indicates that the postconviction court did not find Castaneda or his witnesses to be credible.

The state conceded deficient performance, instead arguing lack of prejudice, where trial counsel failed to assert, as grounds for suppression, that Castaneda had requested counsel during interrogations. Typical claim, and one that ordinarily pits defendant’s credibility against one or more detectives. Guess who invariably wins? But this isn’t a mine-run case: he had multiple corroborating witnesses who verified in various ways that he did request counsel but was ignored, ¶¶23-27. As the block quote above indicates, the trial court made no express credibility findings. But that necessarily means the trial court didn’t explain why it was rejecting the testimony of multiple witnesses — if that was what it actually did. Maybe the court had its reasons, and maybe they were perfectly valid. We’ll never know.

Statement – Voluntariness

Statement not involuntary where: defendant shown “an admittedly non-gruesome photograph of” the victim’s face; claims of threats by police were implicitly rejected by trial court as credibility matter; police refused request to speak with mother, ¶¶37-40.

State v. Daniel Arends, 2010 WI 46, affirming as modified, 2008 WI App 184; for Arends: Leonard D. Kachinsky

Procedure clarified for handling discharge petitions under recently amended § 908.09 :

¶3   We conclude that § 980.09 requires the circuit court to follow a two-step process in determining whether to hold a discharge hearing.

¶4   Under § 980.09(1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under § 980.09(2).

¶5   Wisconsin Stat. § 980.09(2) requires the circuit court to review specific items enumerated in that subsection, including all past and current reports filed under § 980.07.[3] The circuit court need not, however, seek out these items if they are not already within the record. Nevertheless, it may request additional enumerated items not previously submitted, and also has the discretion to conduct a hearing to aid in its determination. The circuit court’s task is to determine whether the petition and the additional supporting materials before the court contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person.

Someone committed under ch. 980 can petition for discharge from the commitment at any time. The circuit court screens the petition to determine if a discharge trial must be set. If the petitioner no longer has the requisite “mental disorder” or no longer is more likely than not to reoffend, then he’s entitled to discharge from the commitment. Although you’d never know it from the opinion, these are constitutional commands, a point that contrastingly informed the court of appeals decision, 2008 WI App 184, ¶18: “To meet constitutional muster, a state must discharge a person who is not both mentally ill and dangerous. See Foucha v. Louisiana, 504 U.S. 71, 71 (1992) (a person subject to a mental health commitment ‘may be held as long as he is both mentally ill and dangerous, but no longer’).” The omission might or might matter, but if nothing else it is exceptionally glaring. Slowly but surely procedural protections have been stripped from SVP procedure — where once a respondent had virtually all the protections of a criminal defendant, today there are virtually none. Whether causal or not, this erosion has coincided with increasing assuredness that greasing the slide to lifelong involuntary detention doesn’t make the process any less “civil” in nature or more susceptible to attack as de facto penalty. But that is because the entire “civil” edifice is now held together by the detainee’s right to seek discharge and the state’s concomitant responsibility to afford vigorous review. This point, too, earned recognition from the court of appeals, id.:

However, the State asserts, at the reexamination stage “there is a need to avoid the public expense of a discharge trial when the evidence is unlikely to demonstrate that a person is no longer an appropriate subject for commitment. And so long as there is a periodic review, due process is satisfied.” While we would generally agree, we emphasize that meaningful periodic review has kept the commitment scheme constitutionally sound. See Rachel, 254 Wis. 2d 215, ¶48 n.5 (when considering the methods by which a committed person can gain discharge, agencies and individuals charged with monitoring the treatment and institutionalization of sexually violent persons are given the “benefit of the assumption” that they will carry out their duties in good faith).

This doesn’t mean that the supreme court necessarily has abandoned the idea of meaningful review, it’s just that its failure to pay even lip service to what should be a constitutional imperative as a guide to statutory construction is a bit unsettling. In any event, keep in mind that the supreme court decision does not address, let alone modify, the language quoted immediately above which therefore remains binding, see this post. (The supreme court did modify the lower court opinion with respect to both the precise way § 980.09(2) applies and, therefore, with the nature of the mandate [remand for further “hearing” under that subsection as opposed to a discharge hearing under subs. (3)].)

The court stresses that § 980.09(1) supports “very limited review,” the “clear purpose” of which “is to weed out meritless and unsupported petitions, which is especially important in light of the statute’s proviso that petitions for discharge may be filed at any time,” ¶28. (A notion wholly consistent, by the way, with that of constitutionally mandated meaningful review.) Things get a bit woollier at the second step, which is therefore quoted at some length:

¶32     Section 980.09(2) contains a second level of review before a petitioner is entitled to a discharge hearing.  Unlike § 980.09(1), where only the petition and its attachments are reviewed, the court in this step is required to examine all of the following items:

(1) any current and past re-examination reports or treatment progress reports filed under Wis. Stat. § 980.07;

(2) relevant facts in the petition and in the State’s written response;

(3) arguments of counsel; and

(4) any supporting documentation provided by the person or the State.

¶33     Some confusion arose at oral argument as to how the circuit court can fulfill its obligation to consider all these items when some of them may not be available or otherwise within the record before the court.  The most reasonable reading of this statute is that the court must review all the items enumerated in § 980.09(2) that are in the record at the time of review.[18] The circuit court need not, therefore, seek out evidence not currently before it.  It may, however, order the production of any of the enumerated items not in the record, but is not required to do so.  The statute supports this interpretation in granting the court the discretion at this stage to hold a separate hearing, distinct from and prior to any discharge hearing.[19] Thus, review under § 980.09(2) is of the specific items listed in the statute, if available or so requested by the court.

The court stresses that even at this more intensive level of scrutiny review is “limited” as with subsection (1), ¶38. The purpose is to determine whether there are “facts that could support relief for the petitioner at a discharge hearing.” More particularly: the circuit court may not weigh the evidence; nor does the burden shift to the petitioner, ¶¶40, 41.

¶43    To conclude, Wis. Stat. § 980.09(2) establishes a limited review of the sufficiency of the evidence. The court is required to review the items specifically enumerated if available, and may order those items to be produced and/or conduct a hearing at its discretion. The circuit court must determine whether the enumerated items contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. If any facts support a finding in favor of the petitioner, the court must order a discharge hearing on the petition; if no such facts exist, the court must deny the petition.

Finally, the court remands to give the circuit court another kick at the screening cat, ¶48. Why not remand for a discharge hearing, which was plainly warranted on the petition? Most likely because ch. 980 really is a different breed of cat.

Issues: (1) Whether it is appropriate under § 2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.

Docket: 09-1088

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

(Links, issue-statements, courtesy SCOTUSblog.)

Irrelevant but still-interesting aside: the cert petition made a nakedly ad hominem (if that is possible when speaking of an institution) pitch, beginning with: “This Court has deemed it important to correct many such Ninth Circuit errors in the past, and should do so again in this case.” And ending with: “The Ninth Circuit once again has disregarded the limitations on federal collateral relief codified in § 2254(d)(1).” With similarly expressed sentiments in-between. Apparently it worked, or at least, didn’t impede review. In any event, the issues-statement is relatively self-explanatory. Pinholster claimed in state court that his trial attorney was ineffective for not presenting expert testimony. The state court took evidence on the question, which included testimony that the defense expert didn’t support NGI. Pinholster then launched an attack based on the theory that this expert had performed his diagnostic task incompetently. He lost, filed a 2254 habeas and after a federal evidentiary hearing which involved new witnesses not heard in state court, the district court granted relief and the 9th affirmed. So the threshold question relates to the AEDPA standard of review — whether, as the cert petition would have it, this “makes deferential review meaningless under § 2254(d)” and therefore derogates the AEDPA scheme. The Brief in Opposition has, as you might imagine, a different take, captured by its presentation of the issue: “Did trial counsel who announced at the guilt verdicts that they had ‘done nothing to prepare mitigation,’ declined an offered continuance and then worked only 6.5 hours to prepare and present one witness, whose testimony was harmful, render ineffective assistance at penalty?” Probably an interesting case if the Court gets to the merits. If.

7th circuit court of appeals decision

Judges – Elections – Partisan Affiliation, Endorsements

The judicial candidate partisan affiliation ban, SCR 60.06(2)(b)1, violates the first amendment.

The crux of the state’s concern here seems to be that a judge who publicly affiliates with a political party has indicated that he is more inclined toward that party’s stance on the variety of legal issues on which that party has a position. But that is the purported compelling state interest that White I squarely rejected. 536 U.S. at 777-78. The state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy. Nor can casting the argument in terms of the “appearance of bias” save it—because “avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state interest either.” Id. at 778.

Different context but same point, really: Sherwin-Williams Co. v. Adelman, No. 10-1638, 6/7/10 (judicial authorship of law review article discussing state court opinion didn’t require recusal of that judge when that case arrived in his court: “someone who … knew that federal judges may speak, write, and participate in other activities concerning the legal issues of the day, see Code of Conduct for United States Judges, Canon 4A(1), would find nothing unseemly about Judge Adelman publishing a law review article on the topic”). Also, if you listen hard enough, you can hear echoes of our yet-to-be-resolved recusal fall-out from the last (supposedly non-partisan) election: “Just as Judge Adelman should not recuse himself from all lead paint cases because he publicly defended the court’s 04-05 lead paint case, so Justice Gableman should not recuse himself from all criminal cases because he publicly criticized the court’s 04-05 criminal cases.” So says Daniel Suhr, anyway; though, as the comments underneath that post explain, one really has nothing to do with the other.

Other judicial-candidate bans, SCR 60.06(2)(b)4 (Endorsement of Partisan Candidates), and SCR 60.06(4) (Personal Solicitation) survive challenge.

Dolan v. United States, USSC No. 09-367, 6/14/10

This case concerns the remedy for missing a statutory deadline. The statute in question focuses upon mandatory restitution for victims of crimes. It provides that “the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” 18 U. S. C. §3664(d)(5). We hold that a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution—at least where, as here, the sentencing court made clear prior to the deadline’s expiration that it would order restitution, leaving open (for more than 90 days) only the amount.

Federal construction of the Mandatory Victims Restitution Act, and not therefore binding on our state version, § 973.20.As to which, our courts have long held that the time limit for setting restitution is merely directory, State v. Perry, 181 Wis. 2d 43, 53, 510 N.W.2d 722 (Ct. App. 1993); State v. Edward W. Johnson, Jr., 2002 WI App 166 (18-month delay upheld, because time limit merely regulatory, not jurisdictional). But see State v. Scott Edward Ziegler, 2005 WI App 69 (14-year delay not tolerable, but only because no facts adduced to support delay of such magnitude). Back to the opinion at hand. It takes an analytical approach that, though not binding on state practice, might be worth keeping in mind. Very briefly: certain statutes “impose a ‘jurisdictional’ condition upon, for example, a court’s authority to hear a case, to consider pleadings, or to act upon motions that a party seeks to file”; others “are more ordinary ‘claims-processing rules, rules that do not limit a court’s jurisdiction, but rather regulate the timing of motions or claims brought before the court”; and in still others, “a deadline seeks speed by creating a time-related directive that is legally enforceable but does not deprive a judge or other public official of the power to take the action to which the deadline applies if the deadline is missed.”

Holland v. Florida, USSC No. 09-5327, 6/14/10

Habeas – Filing Deadline – Equitable Tolling, Generally

The 1-year limitations period for filing an 18 U.S.C. §2254 habeas petition is subject to “equitable tolling”:

We have not decided whether AEDPA’s statutory limitations period may be tolled for equitable reasons. … Now, like all 11 Courts of Appeals that have considered the question, we hold that §2244(d) is subject to equitable tolling in appropriate cases. …

We base our conclusion on the following considerations. First, the AEDPA “statute of limitations defense . . . is not ‘jurisdictional.’” …

We have previously made clear that a nonjurisdictional federal statute of limitations is normally subject to a “rebuttable presumption” in favor “of equitable tolling.” …

…

… When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the “writ of habeas corpus plays a vital role in protecting constitutional rights.” Slack, 529 U. S., at 483. It did not seek to end every possible delay at all costs. Cf. id., at 483–488. The importance of the Great Writ, the only writ explicitly protected by the Constitution, Art. I, §9, cl. 2, along with congressional efforts to harmonize the new statute with prior law, counsels hesitancy before interpreting AEDPA’s statutory silence as indicating a congressional intent to close courthouse doors that a strong equitable claim would ordinarily keep open.

As the Court notes, all lower courts, including the 7th, acknowledged the existence of equitable tolling. In theory, anyway. For its part, the 7th had a particularly stinting view of the principle, repeatedly observing, “We rarely deem equitable tolling appropriate—in fact, we have yet to identify a circumstance that justifies equitable tolling in the collateral relief context,” Modrowski v. Mote, 322 F.3d 965 (7th Cir. 2003); “Equitable tolling is rarely granted. … Indeed, we have yet to identify a petitioner whose circumstances warrant it.” Tucker v. Kingston, 08-1405, 8/15/08. That’s about to change, at least to some extent. Read on.

Equitable Tolling – Attorney Incompetence

Appointed counsel’s failure to file a timely 2254 petition, occasioned by failure to do the necessary research to find out the proper filing date and despite the client’s many exhortations, supported equitable tolling of the lapsed 2254 filing deadline:

We have previously made clear that a “petitioner” is“entitled to equitable tolling” only if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Pace, 544 U. S., at 418 (emphasis deleted). In this case, the “extraordinary circumstances” at issue involve an attorney’s failure to satisfy professional standards of care. The Court of Appeals held that, where that is so, even attorney conduct that is “grossly negligent”can never warrant tolling absent “bad faith, dishonesty,divided loyalty, mental impairment or so forth on the lawyer’s part.” 539 F. 3d, at 1339. But in our view, the Court of Appeals’ standard is too rigid.

…

We have previously held that “a garden variety claim of excusable neglect,” Irwin, 498 U. S., at 96, such as a simple “miscalculation” that leads a lawyer to miss a filing deadline, Lawrence, supra, at 336, does not warrant equitable tolling. But the case before us does not involve, and we are not considering, a “garden variety claim” of attorney negligence. Rather, the facts of this case present far more serious instances of attorney misconduct. And, as we have said, although the circumstances of a case must be “extraordinary” before equitable tolling can be applied, we hold that such circumstances are not limited to those that satisfy the test that the Court of Appeals used in this case.

The Court goes on to stress that mere lack of awareness of the correct deadline would be “simple negligence”; not enough for equitable tolling. But, counsel’s failure to adequately research the due date, coupled with his utter lack of communication with his client, places his negligence in the realm of the “extraordinary.” Apparently, the ethical breach — client abandonment — makes the difference:

A group of teachers of legal ethics tells us that these various failures violated fundamental canons of professional responsibility, which require attorneys to perform reasonably competent legal work, to communicate with their clients, to implement clients’ reasonable requests, to keep their clients informed of key developments in their cases, and never to abandon a client. See Brief for Legal Ethics Professors et al. as Amici Curiae (describing ethical rules set forth in case law, the Restatements of Agency, the Restatement (Third) of the Law Governing Lawyers(1998), and in the ABA Model Rules of Professional Conduct (2009)). And in this case, the failures seriously prejudiced a client who thereby lost what was likely his single opportunity for federal habeas review of the lawfulness of his imprisonment and of his death sentence.

Upshot: this misconduct might support equitable tolling, but that’s something that must first be ruled on below. The error was in saying that the misconduct couldn’t, as a matter of law, get Holland over the deadline hump. As to the nature of the error: the Alito concurrence usefully explains that missing a deadline is necessarily negligent and “that gross negligence is ordinary negligence with a vituperative epithet added.” Not enough, in other words, to say that the attorney conduct amounts to gross negligence. Rather, says Alito, counsel’s lack of communication with his client amounted to abandonment, such that counsel’s acts could no longer be constructively attributed to his client. Remains to be seen, then, whether a significant ethical breach may support equitable tolling, or whether the breach must be such as to sever the principal-agency relationship. Regardless, the result works a change in 7th Circuit caselaw which held, as Modrowski put it, that “attorney misconduct, whether labeled negligent, grossly negligent, or willful, is attributable to the client.”