On Point

Question Presented:

Whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an “application for State post-conviction or other collateral review,” 28 U.S.C. § 2244(d)(2), thus tolling the Anti-Terrorism and Effective Death Penalty Act’s one-year limitations period for a state prisoner to file a federal habeas corpus petition.

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Principal impetus for review seems to be (per usual) a split of authority, 3-2 according to the cert petition. The QP should be self-explanatory: it’s a 2254 tolling case, whether as the 1st Circuit put it, “a state-court post-conviction motion to reduce an imposed sentence, in the nature of a plea for discretionary leniency, [fell] within the scope of the tolling provision.” At first blush, Wisconsin practice wouldn’t appear affected, with a qualification. The equivalent motion would be § 973.19, but going that route works an explicit waiver of the right to appeal, subsec. (5), which would create a separate potential bar to 2254 review.

Now, the qualification. The 1-year deadline for a 2254 habeas begins running after an unsuccessful direct (§ 809.30) appeal, but “is tolled during the time in which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. 28 U.S.C. § 2244(d)(2),” Richard Graham v. Borgen, 7th Cir. 2007. The deadline is tolled if you file a § 974.06 motion within the 1-year deadline (but not beyond it, of course). What, though, if you file a new-factor based sentence modification within that post-appeal window? This cert grant might well have something to say about that. And see, for that matter, David Lozano, Jr. v. Frank, 7th Cir. 2005 (new factor sentence modification didn’t reset the 2254 clock: “The Milwaukee County Circuit Court was not affirming or reversing his conviction—it was deciding whether the new factor of his cooperation merited a sentence adjustment. … Accepting Lozano’s argument would require the elevation of form over substance; he cannot backdoor his way into timely federal habeas review by characterizing his sentence modification as a result of the direct review process.”) In other words, there’s a risk with respect to sentence modification motions and the 2254 deadline, one the habeas practitioner must be aware of whether or not Wall v. Kholi provides clarity.

7th circuit decision

Permissive Driver, Standing to Challenge Car Search

It is well-established that a driver of a borrowed vehicle may establish a reasonable expectation of privacy in a vehicle even though that driver is not the owner of the vehicle. … Courts have repeatedly recognized the right of a driver to assert a Fourth Amendment right to be free from unreasonable searches of a vehicle where the driver is operating that vehicle with the permission of the owner. … In lawfully possessing and controlling the car, the driver has the right to exclude others which corresponds with an expectation of privacy. Similar to an owner driving the car, the authorized driver may have an expectation of privacy in that circumstance. The inquiry is a fact specific one, however ….

Settled though the principle might be it does tend to come up from time to time. Even so, the case probably wouldn’t be worth posting except that it discusses the problem in the context of ineffective assistance of counsel and reaches an interesting conclusion. Read on.

Ineffective Assistance of Counsel – Suppression Motion
Counsel’s tactical reasons for not filing a suppression motion were invalid. First, counsel thought that Johnson couldn’t assert a privacy interest because he didn’t own the car. This, as noted, is wrong, and “Johnson could argue that he possessed such an expectation of privacy even though he was unaware that the drugs had been concealed within the car.” Because counsel’s decision-making was infected by “a misapprehension of law” it was deficient. Second, counsel thought that  a “credibility determination” made at the suppression hearing would impair the lack-of-knowledge defense to be asserted at trial. This

appears to be based on a misunderstanding of another legal proposition. Borsberry was apprehensive that the court’s credibility determination in a motion to suppress would adversely impact Johnson’s defense in a jury trial. In short, he was concerned with the impact that testimony in the motion to suppress would have on the trial. The Supreme Court in Simmons v. United States, 390 U.S. 377, 394 (1968), however, made clear that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” See also Owens v. United States, 387 F.3d 607, 608-09 (7th Cir. 2004). Accordingly, any testimony by Johnson in support of a motion to suppress could not have been introduced against him at trial, and that concern was not a proper basis on which to forego the motion to suppress.

Interesting, to be sure, but possibly misleading nonetheless — not so much for what the court says but what it leaves unsaid. Suppressed evidence can’t used as substantive evidence in the state’s case-in-chief (as the block quote indeed suggests), but can be used as impeachment, U.S. v. Havens, 446 U.S. 620 (1980). Thus: by testifying at a suppression hearing, Johnson would risk being cross-examined as to whether the drugs were his and having that answer used against him if he later testified at trial. Fact is, he (almost certainly, it appears) would have denied knowledge at the suppression hearing so he wouldn’t have really risked impeachment at trial. In brief, the first ground for deficient performance — denial of knowledge was an unsupportable basis for not pursuing suppression — is the decisive ground. The point presently is that, contrary to a possible impression left by the decision, prosecuting a suppression motion isn’t necessarily risk-free.

supreme court decision; BiC; Resp.; Reply

Court of Appeals Authority to Declare Dicta

¶57     By concluding that a statement in a supreme court opinion is dictum, the court of appeals necessarily withdraws or modifies language from that opinion, contrary to our directive in Cook. …

¶58     If the court of appeals could dismiss a statement in a prior case from this court as dictum, the limitation in Cook against overruling, modifying, or withdrawing language would be seriously undermined. We therefore conclude that to uphold the principles of predictability, certainty, and finality, the court of appeals may not dismiss a statement from an opinion by this court by concluding that it is dictum.

The problem traces to Cook, which says that only the supreme court “has the power to overrule, modify or withdraw language from” either a published court of appeals or supreme court decision, ¶¶51, 53. But what happens if the court of appeals subsequently discerns that published language is dicta? The court now “recognize(s) that previous decisions written by this court have provided inconsistent guidance on the definition and effect of dicta in Wisconsin cases,” Zarder, ¶52, and proceeds to describe “two disparate lines of Wisconsin cases defining dicta.” The court makes no attempt to reconcile these competing lines, but instead absolutely precludes the court of appeals from declaring as “dicta” any statement in a supreme court decision. Does this mean that the court of appeals is bound by what is now undeclared dicta? Presumably so, otherwise, why bother imposing this limitation? But what about the court of appeals’ power to declare as dicta its own prior published language? The supreme court doesn’t explicitly address this point, but reserving this authority would be inconsistent with Cook, so Zarder almost certainly precludes it.

It’s not as obscure a principle as might appear, and indeed is likely not only to recur but to do so in unexpected contexts. No attempt will be made to elaborate in a short post like this, but consider these possibilities: What happens to a published court of appeals decision reversed “on other grounds” by the supreme court? The untouched portion of the lower court remains binding, as it wasn’t “overruled, withdrawn, or modified,” State v. Gary M.B., 2003 WI App 72, ¶13, which (of course) was itself affirmed on other grounds, 2004 WI 33. Does a court of appeals’ panel have authority to change language in its own recently issued opinion after it’s been ordered published? Infrequent, but it does happen. Yes, the court may undertake “reconsideration” on motion or sua sponte, § 809.24, but that may or may not be something else. What happens when the supreme court has issued conflicting statements? The court of appeals is “bound by the most recent pronouncements of the Wisconsin Supreme Court,” State v. Walter Leutenegger, 2004 WI App 127, ¶5. And if it is the court of appeals that has reached inconsistent views? “Where two court of appeals decisions conflict, the first decision governs,”  State v. Esteban Martinez, 2007 WI App 225, ¶23 (concurrence).

That’s enough. You can play this game yourself at home. Try it out. But first, you may want to read this subsequent post, discussing the potential distinction between “reversed” and “overruled” court of appeals’ precedent.

court of appeals decision (3-judge, not recommended for publication); for Sterling: Dianne M. Erickson; BiC; Resp.; Reply

Charging Decision – Judicial Involvement
Increase in the charge, following trial judge’s veiled suggestion to the prosecutor that such an increase would be appropriate, wasn’t occasioned by judicial interference with prosecutorial discretion, ¶¶16-22.

Initially charged with first-degree reckless injury, Sterling was ultimately convicted on an amended charge of attempted first-degree intentional homicide. The State increased the charge not only after Sterling rejected a plea offer, but after the trial judge questioned the initial charge: “Why not attempted murder? … why isn’t that attempted murder with maybe a lesser included or an additional charge of first degree recklessly — reckless injury[?] I don’t understand that myself …,” ¶7. The judge thus merely “made an observation supported by the facts in the criminal complaint”; and, meant only “to ensure that if an additional charge was brought in a timely manner,” ¶¶19-20. Sure. Didn’t matter that the prosecutor had said not a single word about a possible amendment. To the contrary, she explicitly informed the judge, “Well, I thought under the circumstances this [the initial charge] was the best way to proceed,” ¶7. Thought so, anyway, till the judge suggested that he had a better way. If this treatment is any indication, the record will have to be awfully strong before the court finds judicial interference.

Worth noting that no contemporaneous objection was made, which constrained postconviction counsel to raise the issue under ineffective assistance of counsel — something that only added to an already stringent burden. And equally worth keeping in mind that there are indeed limits on judicial authority, even if they weren’t reached in this case, as exemplified by Judge Posner’s caustic observation in In re United States of America (“Shabaz”), 345 F. 3d 450 (7th Cir. 2003): “The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. … The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” Then, too, though we are drifting a bit from the case at hand, you might want to keep an eye on State v. Joshua D. Conger, 2008AP755-CR, before the supreme court on certification (review granted 8/17/09; oral arg 12/1/09) dealing with a Shabaz-type problem, trial court discretion to reject a plea bargain.

Judicial Bias
The trial judge’s remarks with respect to the initial charge didn’t evince objective bias with regard to sentencing (36 years out of a potential maximum of 76), ¶¶23-31.

Confrontation – Expectation of Leniency
Trial court refusal to allow cross-examination of victim-witness as to whether he expected leniency with respect to pending charge in exchange for his testimony is upheld: although evidence of pending charge is “a prototypical form of bias,” it is different where, as here, the witness is not merely one “with information of the crime charged, but the victim,” ¶37. Moreover, the victim indisputably did not have a leniency agreement, therefore any argument that hoped-for leniency would turn him against a defendant accused of trying to kill him “is simply not reasonable,” ¶39.

Sentence – Presentence Report
Sentencing judge isn’t required to explain reason for not requesting PSI, ¶¶42-46.

court of appeals decision (3-judge, not recommended for publication); for Henry: Martin E. Kohler, Craig S. Powell; BiC; Resp.; Reply

Counsel – Request for Substitute
Trial court denial of request for new counsel is a discretionary determination, reviewed deferentially under the factors set forth in State v. Lomax, 146 Wis. 2d 356, 432 N.W.2d 89 (1988), ¶¶17-18. Henry concedes sufficient trial court inquiry into his complaint against counsel, and argues timeliness of his request and breakdown of attorney-client relationship. As to timeliness: Henry became “disillusioned” with counsel because the latter was on vacation 10 days before trial. However, Henry had long known of this fact, and counsel had prepared for trial both before and immediately after his vacation. Henry does not claim that counsel’s “vacation affected his representation in any respect,” ¶22. As to the possibility of “breakdown” in the relationship: Henry might have been “frustrated” that counsel didn’t visit him in jail more frequently, but the record doesn’t show that the relationship “had broken down to the extent that it prevented an adequate defense,” ¶25. Instead, Henry has “merely demonstrated his dissatisfaction with what his attorney told him.”

State v. Chester C., 2009AP2824, District I, 5/4/10

court of appeals decision (1-judge; not for publication); for Chester C.: Dianne M. Erickson

TPR – Effective Assistance of Counsel
Failure to demonstrate prejudice within the meaning of Strickland dooms this ineffective-assistance claim that trial counsel failed to object to various hearsay statements:

¶7     Other than complaining that his trial lawyer did not object to the hearsay we have recounted, Chester C. does not show why, in Strickland’s words, “there is a reasonable probability that” if his lawyer had objected “the result of the proceeding would have been different,” which, Strickland opines, “is a probability sufficient to undermine confidence in the outcome.” See State v. Byrge, 225 Wis. 2d 702, 724, 594 N.W.2d 388, 397 (Ct. App. 1999) (“A defendant who alleges that counsel was ineffective by failing to take certain steps must show with specificity what the actions, if taken, would have revealed and how they would have altered the outcome of the proceeding.”) (emphasis added), aff’d, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 744. …

The trial court had found that the “presumed inadmissible (hearsay) evidence” did no more than show what was “overwhelmingly and irrefutably proven by stark and competent evidence” anyway (¶6). The court of appeals similarly characterizes the hearsay as “fairly de minimis” (¶7). Of greater note, the court indicates that if hearsay objections had been lodged, the problems “could have been easily cured by the State” having the relevant declarant or eyewitness testify; Chester C.’s failure to do so amounts to a failure to satisfy his burden of showing prejudice (¶7). The details of such proof are necessarily speculative, but it’s fair to assume postconviction counsel must subpoena the declarants and eyewitnesses to show that the asserted deficiencies would not have been cured by proper objection.

7th circuit court of appeals decision

Habeas Review – Exculpatory Evidence
Statements of three eyewitnesses, not disclosed to the defendant, that would have implicated the state’s principal eyewitness and otherwise impeached his credibility and that of 2 other state’s witnesses was “material.” It is reasonably probable that disclosure would have netted a different result, and the state court’s contrary conclusion unreasonably applied clearly established law.

The court stresses, “The reasonable probability standard for materiality of suppressed evidence is less rigorous than a preponderance of the evidence standard in that a petitioner need only show that the new evidence undermines confidence in the verdict.” Applying this standard appears to be where the state court went off the rails: though that court “initially identified this as the correct legal principle,” it proceeded to reject materiality on the inapposite basis that the suppressed information didn’t conclusively establish innocence.

… So while the Indiana court identified the correct legal principle—that Goudy had to demonstrate a reasonable probability that the new evidence would lead to a different result—the statements quoted above would require that Goudy prove the new evidence necessarily “would have” established his innocence. Placing this burden on Goudy was “diametrically different,” Taylor, 529 U.S. at 406, than the clearly established principle laid out in Kyles, 514 U.S. at 434, Bagley, 473 U.S. at 682, and Agurs, 427 U.S. at 112-14.

Nor was that all; the state court also wrongly

dismissed each piece of suppressed evidence in seriatim, rather than assessing its cumulative effect as required by Kyles, 514 U.S. at 440. … By not identifying the cumulative materiality standard required by Kyles, 514 U.S. at 440, and analyzing suppressed evidence in isolation, the court deprived Goudy of the full exculpatory value of this evidence and unreasonably applied clearly established law.