Please ensure Javascript is enabled for purposes of website accessibility

Case Digests — March 10-14, 2014

By: WISCONSIN LAW JOURNAL STAFF//March 14, 2014//

Case Digests — March 10-14, 2014

By: WISCONSIN LAW JOURNAL STAFF//March 14, 2014//

Listen to this article

Wisconsin Law Journal Case Digests, March 10-14, 2014

Wisconsin Supreme Court

Civil
Professional Responsibility — suspension

Where attorney John R. Maynard failed to disclose his suspension to his clients and continued to practice law, an additional one-year suspension is appropriate.

“Having carefully considered this matter, we approve the stipulation and adopt the stipulated facts and legal conclusions of professional misconduct. We also agree that a one-year suspension of Attorney Maynard’s license to practice law in Wisconsin is appropriate. We note that in In re Disciplinary Proceedings Against Hahnfeld, 2012 WI 17, 338 Wis.2d 740, 809 N.W.2d 382, an attorney’s license was suspended for one year for six counts of misconduct relating to his continued representation of a client while suspended, his failure to disclose his suspension to the client or the OLR, and his failure to cooperate with the OLR; and three counts related to the attorney’s failure to hold in trust that client’s fees and refusal to refund fees when he was terminated by the client. Attorney Hahnfeld had two prior public reprimands and a 60-day license suspension, a more extensive disciplinary history than does Attorney Maynard. In addition, a component of Attorney Hahnfeld’s misconduct involved client fees, whereas Attorney Maynard’s misconduct did not involve any fee issues. On the other hand, Attorney Hahnfeld’s conduct did not include making false representations to a court or filing a frivolous lawsuit, and Attorney Hahnfeld’s case related to only one client whereas Attorney Maynard represented multiple clients while his license was suspended. On balance, however, the misconduct at issue in Hahnfeld and the misconduct at issue in this matter are somewhat similar, leading to the conclusion that a one-year suspension of Attorney Maynard’s license is an appropriate sanction.”

2013AP2362-D OLR v. Maynard

Per Curiam.

Attorneys: For Complainant: Weigel, William J., Madison; Price, Matthew J., Milwaukee; For Respondent: Maynard, John R., Milwaukee

Wisconsin Supreme Court

Civil
Professional Responsibility — suspension

Where attorney Peter James Nickitas received a 30-day suspension in Minnesota, a reciprocal, non-retroactive 30-day suspension is appropriate.

“The OLR opposes a retroactive suspension, saying a lawyer’s voluntary cessation of practice does not result in the court backdating the suspension. See, e.g., In re Disciplinary Proceedings Against Frank, 206 Wis.2d 233, 241, 556 N.W.2d 717 (1996). The OLR argues that in the event the suspension were not made retroactive, this court would not be effectively doubling the discipline since Attorney Nickitas had the ability to continue to practice in Wisconsin during the term of his Minnesota suspension. The OLR says Attorney Nickitas’ purported voluntary cessation of practice in Wisconsin during the term of the Minnesota suspension does not warrant retroactive application of the suspension imposed by this court. We agree with the OLR’s reasoning. Suspensions are generally not imposed retroactively. There are no special circumstances in this case that would warrant a retroactive suspension.”

2013AP1770-D OLR v. Nickitas

Per Curiam.

Attorneys: For Complainant: Hendrix, Jonathan E., Madison; For Respondent: Nickitas, Peter James, Minneapolis

Wisconsin Court of Appeals

Civil
Family — property division — maintenance

Gary Zschaechner challenges the circuit court’s division of property and maintenance determination in his divorce judgment. We reverse on both issues and remand for further proceedings. Judgment reversed and cause remanded for further proceedings. This opinion will not be published.

2012AP2430 In re the marriage of: Zschaechner v. Zschaechner

Dist III, Shawano County, Kussel, J., Per Curiam

Attorneys: For Appellant: McLeod, Mark T., New London; For Respondent: Borchardt, Peter R., Green Bay; McKinley, William Patrick, Appleton

Wisconsin Court of Appeals

Civil
Civil Procedure – contempt — ability to pay

Roger and Marjorie Hoeppner appeal a judgment imposing remedial sanctions for failing to comply with the purge conditions of a 2010 contempt order. The Hoeppners argue the circuit court erred by failing to determine whether the Hoeppners would be able to satisfy the purge conditions and by failing to hold a hearing to determine whether the Hoeppners purged their contempt. They also argue the Town of Stettin did not follow the proper procedure to receive a remedial sanction and their due process right was violated. We affirm. This opinion will not be published.

2013AP1201 In re the finding of contempt in: Town of Stettin v. Hoeppner

Dist III, Marathon County, Grau, J., Hoover, P.J.

Attorneys: For Appellant: Lister, Ryan D., Wausau; For Respondent: VanderWaal, Shane Jon, Wausau

Wisconsin Court of Appeals

Civil
Contracts — failure to mitigate damages — equitable estoppel

Jeffrey Harrill, Michael Harrill, Lori Harrill and Melanie Harrill appeal a summary judgment entered against them in connection with guaranties of payment. The Harrills argue the circuit court erroneously rejected their affirmative defenses of failure to mitigate damages and equitable estoppel. We agree with the circuit court that both defenses fail as a matter of law, and affirm. This opinion will not be published.

2013AP1544 Olive Portfolio LLC et al. v. Harrill

Dist III, Brown County, Hock, J., Per Curiam

Attorneys: For Appellant: Czachor, Curtis, Green Bay; For Respondent: Armstrong, Thomas, Milwaukee; Crocker, Randall D., Milwaukee

Wisconsin Court of Appeals

Civil
Juveniles – CHIPS — dismissal

John M. S. filed a Petition for Protection or Services, pursuant to Wis. Stat. § 48.13(4), with regard to his son Luke M. S. John’s ex-wife, Marcy J. S., who is Luke’s mother, opposed the petition. The parties filed cross-motions for summary judgment. The circuit court dismissed John’s petition on the ground that it was insufficient. We agree and affirm. This opinion will not be published.

2013AP2644-FT In the interest of Luke M.S. v. Marcy J.S.

Dist II, Waukesha County, Domina, J., Gundrum, J.

Attorneys: For Appellant: Wiesmueller, Corrine N., Waukesha; For Respondent: Schneck, Thomas J., Waukesha

Wisconsin Court of Appeals

Civil
Torts — negligence apportionment

This is a negligence-apportionment case. Cody Oleson and his insurer, State Auto Insurance Company of Wisconsin (“Oleson”) appeal from an order granting summary judgment in favor of Robert E. Riker; Riker’s employer, Universal Am-Can Ltd.; Universal’s insurer, Cherokee Insurance Company; and Tyler Knutson and his insurers, Progressive Universal Insurance Company and West Bend Mutual Insurance Company (all respondents collectively “Knutson”). We agree with Oleson that there was enough evidence from which a jury reasonably could infer that Knutson’s negligence was a substantial factor in causing some of Nikita Willeford’s injuries. We reverse. This opinion will not be published.

2013AP1644 Willeford v. Cherokee Insurance Company et al.

Dist II, Winnebago County, Woldt, J., Per Curiam

Attorneys: For Appellant: Graff, Ryan Ray, Manitowoc; Sandfort, Katelyn P., Manitowoc; Mayer, John F., Manitowoc; For Respondent: Zimmer, Lora Lederer, Appleton; Benson, Christine M., Waukesha; Budzinski, Mark, Green Bay; Howard, Jane Erin, Green Bay

Wisconsin Court of Appeals

Civil
Insurance — duty to defend — pollution

This is an insurance-coverage dispute between Chartis Specialty Insurance Company and Acuity, A Mutual Insurance Company. Chartis issued Dorner, Inc., a Contractors Pollution Liability (CPL) policy; Acuity issued Dorner a standard Comprehensive General Liability (CGL) policy. The circuit court concluded that, like Acuity, Chartis also had a duty to defend and indemnify Dorner in four consolidated lawsuits in which the plaintiffs sought recovery for bodily injury and property damage caused by a gas explosion that occurred when, during excavation, Dorner employees disturbed an underground natural gas line. Chartis appeals on grounds that the complaints neither alleged “pollution conditions,” as defined in the CPL policy, nor that “pollution conditions” caused the bodily injury or property. We reverse and remand. This opinion will not be published.

2013AP1303 Acuity v. Chartis Specialty Insurance Company

Dist II, Waukesha County, Mac Davis, J., Per Curiam

Attorneys: For Appellant: Rattan, Mark W., Brookfield; For Respondent: Grady, Lance S., Waukesha; Cohen, Michael J., Milwaukee; Hruz, Thomas M., Milwaukee; Miller, Daniel K., Waukesha

Wisconsin Court of Appeals

Civil
Torts – defamation – privilege — frivolous actions

Quincy Neri appeals the dismissal of her complaint and judgments imposing sanctions for filing a frivolous action. Neri contends that her complaint should not have been dismissed because it stated valid claims. We conclude that Neri’s complaint failed to state any cognizable claim and had no reasonable basis in law. Accordingly, we affirm. Additionally, we grant the motion by the respondents for sanctions for a frivolous appeal. This opinion will not be published.

2013AP1818 Neri et al. v. Barber et al.

Dist IV, Dane County, Remington, J., Per Curiam

Attorneys: For Appellant: Neri, Quincy, pro se; For Respondent: Barber, Timothy M., Madison; Kulkoski, Grace Marie, Madison; Anzelmo, Anthony Joseph, Milwaukee; Palmersheim, Kevin J., Middleton; Dettmann, Cathleen A., Middleton; Pliner, David J., Madison; Barber, Timothy M., Madison; Malloy, Mark D., Milwaukee

Wisconsin Court of Appeals

Civil
Torts – fraud — frivolous actions

Quincy Neri appeals the circuit court’s judgment and order dismissing Neri’s complaint and imposing sanctions for filing a frivolous action. Neri contends that her complaint stated claims, that sanctions were inappropriate, and that the circuit court judge was biased. We conclude that Neri’s complaint failed to state a claim, that sanctions were properly imposed, and that Neri’s claim of judicial bias lacks merit. Accordingly, we affirm. Additionally, we grant the motion by the respondents for sanctions for a frivolous appeal. This opinion will not be published.

2013AP1112 Neri et al. v. Pinckney Holdings LLC et al.

Dist IV, Dane County, Markson, J., Per Curiam

Attorneys: For Appellant: Neri, Quincy, pro se; For Respondent: Splitek, Matthew, Madison

Wisconsin Court of Appeals

Civil
Insurance — bad faith; frivolous actions

Quincy Neri appeals the circuit court’s dismissal of her complaint and judgments imposing sanctions for filing a frivolous action. Neri contends that her complaint stated claims and that sanctions were inappropriate. We conclude that Neri’s complaint failed to state a claim and that sanctions were properly imposed. Accordingly, we affirm. Additionally, we grant the motion by the respondents for sanctions for a frivolous appeal. This opinion will not be published.

2013AP713 Neri et al. v. Barber et al.

Dist IV, Dane County, Markson, J., Per Curiam

Attorneys: For Appellant: Neri, Quincy, pro se; For Respondent: Barber, Timothy M., Madison; Crooks, Michael P., Madison; Anzelmo, Anthony Joseph, Milwaukee; Dettmann, Cathleen A., Middleton; Pliner, David J., Madison; Kulkoski, Grace Marie, Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — search warrants — probable cause

Gino Montoya appeals a judgment of conviction. The issues relate to a search of Montoya’s residence. We affirm. This opinion will not be published.

2012AP1010-CR State v. Montoya

Dist IV, Dodge County, Storck, J., Per Curiam

Attorneys: For Appellant: Jurek, Anthony J., Madison; For Respondent: Larson, Sarah K., Madison; Klomberg, Kurt F., Juneau

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — prior convictions — equal protection

Section 343.307(1)(d) does not violate the Equal Protection Clause of the United States Constitution, even though out-of-state “zero tolerance” suspensions count as prior convictions whereas Wisconsin “absolute sobriety” violations do not.

“There is a rational basis for the legislative determination to dispense with the required conformity with Wisconsin law. Our legislature has control over Wisconsin’s absolute sobriety law, and it has defined the drinking age, the amount of alcohol that can be involved, and how the offenses are treated by courts and prosecutors. Our legislature has no such authority over out-of-state offenses. Our trial courts and bar are familiar with our absolute sobriety law, when it applies, how it is enforced, and how its penalties are administered. It was reasonable to eliminate the conformity requirement between Wisconsin offenses and the countless other variations of these types of offenses, when our legislature has no authority over how they are defined and applied by prosecutors and the courts, much less how other jurisdictions might redefine or apply such offenses over time. Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions. The definition consistently counts all convictions under out-of-state laws prohibiting driving with an excess or specified range of alcohol concentration regardless of their labels or treatment. And, counting all such convictions serves the public good because an exception could lead to undercounting offenses that are defined or applied differently.”

Affirmed.

Recommended for publication in the official reports.

2013AP427-CR State v. Hirsch

Dist. II, Walworth County, Reddy, J., Neubauer, J.

Attorneys: For Appellant: Walter, Andrew R., Elkhorn; For Respondent: Sanders, Michael C., Madison; Necci, Daniel A., Elkhorn

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — prior convictions — collateral attacks

The State appeals from a nonfinal order granting Kyle J. Brunner’s motion collaterally attacking two prior convictions for operating a motor vehicle while intoxicated. The State contends that Brunner failed to make a prima facie showing that his prior convictions were obtained in violation of his constitutional right to counsel. We determine that even assuming Brunner’s written motion alleged sufficient facts entitling him to a hearing, his sworn testimony did not support or establish his factual allegations. We conclude that Brunner failed to make a prima facie showing sufficient to shift the burden of proof to the State, and we reverse. This opinion will not be published.

2013AP125-CR State v. Brunner

Dist II, Sheboygan County, Bolgert, J., Per Curiam

Attorneys: For Appellant: Sanders, Michael C., Madison; Wagner, Mary T., Sheboygan; For Respondent: Krahn, Ellen J., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion

Mitchell Treiber, pro se, appeals a judgment of conviction for operating while intoxicated, second offense. Treiber argues the circuit court erred by denying his suppression motion because the officer lacked reasonable suspicion to stop his vehicle, or because the officer unlawfully searched his vehicle. We affirm. This opinion will not be published.

2013AP2684-CR State v. Treiber

Dist III, Outagamie County, Dyer, J., Hoover, P.J.

Attorneys: For Appellant: Treiber, Mitchell M., pro se; For Respondent: Weber, Gregory M., Madison; Schneider, Carrie A., Appleton; Stertz, Charles M., Appleton

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — probable cause

This appeal concerns the outcome of a hearing at which the respondent, Ross Timothy Litke, argued that there was no probable cause to support a police officer’s decision to administer a preliminary breath test, in order to determine whether there was probable cause to arrest him for operating a motor vehicle while under the influence of an intoxicant. Following this hearing, the trial court determined that the police officer who administered the preliminary breath test did not have probable cause to do so. The State of Wisconsin appeals that decision, arguing that the trial court erred in refusing to consider the evidence of intoxication from the officer’s administration of the Horizontal Gaze Nystagmus test and that there was probable cause to administer the preliminary breath test if the evidence from the HGN is considered. In the alternative, the State argues that there was probable cause to administer the preliminary breath test even without the evidence from the HGN test. The State also argues that because there was probable cause to administer the preliminary breath test, the test results were admissible to show probable cause to arrest pursuant to § 343.303 and there was probable cause to arrest Litke for operating while intoxicated.

This court agrees with the State and concludes that even without the evidence from the HGN test there was probable cause to administer the preliminary breath test. This court further concludes that because there was probable cause to administer the preliminary breath test, the test results were admissible to show that there was probable cause to arrest Litke for operating while intoxicated, and that, under the totality of the circumstances, there was probable cause to arrest him. Consequently, the trial court’s decision is reversed and the case is remanded for further proceedings. This opinion will not be published.

2013AP1606-CR State v. Litke

Dist I, Milwaukee County, Stark, J., Curley, P.J.

Attorneys: For Appellant: Loebel, Karen A., Milwaukee; Dague, Ronald S., Milwaukee; For Respondent: Mastantuono, Craig A., Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure – discovery — mistrials

Francisco Luis Canales appeals from the judgment of conviction, following a jury trial, of one count of being a felon in possession of a firearm. We affirm. Not recommended for publication in the official reports.

2013AP1435-CR State v. Canales

Dist I, Milwaukee County, Watts, J., Kessler, J.

Attorneys: For Appellant: Dondlinger, Marisa Rae, Menomonee Falls; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — right to be present — ineffective assistance

Precious M. Ward, pro se, appeals from a trial court order denying his Wis. Stat. § 974.06 (2011-12) motion for postconviction relief. We affirm. This opinion will not be published.

2013AP391 State v. Ward

Dist I, Milwaukee County, Wagner, J., Per Curiam

Attorneys: For Appellant: Ward, Precious M., pro se; For Respondent: Loebel, Karen A., Milwaukee; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance — out-of-court identifications

Mario Emmanuel James, pro se, appeals the judgment convicting him of armed robbery with the use of force, as party to a crime. He also appeals the order denying his postconviction motion without a hearing. James argues that the trial court erred in denying his motion without a hearing because: (1) the prosecutor engaged in misconduct by knowingly putting on false testimony and vouching for a witness’s credibility; (2) the photo array in which one of the robbery victims identified him was impermissibly suggestive; (3) trial counsel was ineffective; and (4) reversal is required in the interest of justice. We disagree and affirm. Not recommended for publication in the official reports.

2013AP309-CR State v. James

Dist I, Milwaukee County, Dallet, J., Curley, P.J.

Attorneys: For Appellant: James, Mario Emmanuel, pro se; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sara Lynn, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Michael Mario Miller, Jr., pro se, appeals the order denying his motion for postconviction relief pursuant to Wis. Stat. § 974.06 (2011-12). He argues his trial counsel and postconviction counsel were ineffective for failing to challenge the admissibility of his inculpatory statement on Sixth Amendment grounds. Additionally, he asserts his postconviction counsel was ineffective for failing to adequately argue that Miller’s statement should have been suppressed as a result of a warrantless search. We affirm, albeit based on reasoning that differs from that offered by the postconviction court. This opinion shall not be published.

2012AP2619 State v. Miller

Dist I, Milwaukee County, Wagner, J., Per Curiam

Attorneys: For Appellant: Miller, Michael Mario, Jr., pro se; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sara Lynn, Madison

U.S. Supreme Court

Civil
Transportation – railroads — abandonment

Under the General Railroad Right-of-Way Act of 1875, the right of way was an easement that was terminated by the railroad’s abandonment, leaving the property unburdened.

The Government asks this Court to limit Great Northern’s characterization of 1875 Act rights of way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s reliance on the similarity of the language in the 1875 Act and pre1871 statutes directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes. Nor do this Court’s decisions in Stalker v. Oregon Short Line R. Co., 225 U. S. 142, and Great Northern R. Co. v. Steinke, 261 U. S. 119, support the Government’s position. The dispute in each of those cases was framed in terms of competing claims to acquire and develop a particular tract of land, and it does not appear that the Court considered — much less rejected — an argument that the railroad had only an easement in the contested land. But to the extent that those cases could be read to imply that the interest was something more, any such implication would not have survived this Court’s unequivocal statement to the contrary in Great Northern. Finally, later enacted statutes, see 43 U. S. C.§§912, 940; 16 U. S. C. §1248(c), do not define or shed light on the nature of the interest Congress granted to railroads in their rights of way in 1875. They instead purport only to dispose of interests (if any) the United States already possesses.

496 Fed. Appx. 822, reversed and remanded.

12-1173 Marvin M. Brandt Revocable Trust v. U.S.

Roberts, C.J.; Sotomayor, J., dissenting.

U.S. Supreme Court

Civil
Family Law — international abduction

The one-year period in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction is not subject to equitable tolling.

Without a presumption of equitable tolling, the Convention does not support extending the 1-year period during concealment. Article 12 explicitly provides for the period to commence on “the date of the wrongful removal or retention” and makes no provision for an extension. Because the drafters did not choose to delay the period’s commencement until discovery of the child’s location — the obvious alternative to the date of wrongful removal — the natural implication is that they did not intend to commence the period on that later date. Lozano contends that equitable tolling is nonetheless consistent with the Convention’s goal of deterring child abductions, but the Convention does not pursue that goal at any cost, having recognized that the return remedy may be overcome by, e.g., the child’s interest in settlement. And the abducting parent does not necessarily profit by running out the clock, since both American courts and other Convention signatories have considered concealment as a factor in determining whether a child is settled. Equitable tolling is therefore neither required by the Convention nor the only available means to advance its objectives.

697 F. 3d 41, affirmed.

12-820 Lozano v. Alvarez

Thomas, J.; Alito, J., concurring.

U.S. Court of Appeals for the Seventh Circuit

Civil
Immigration – asylum — China

Where the petitioner engaged in only one sit-in to protest the taking of his property, he failed to show past persecution based on political expression.

“Chen’s protest was similarly non-political. He did not engage in any of the classic examples of political activity; instead, he participated in one sit-in to protest the taking of his property without compensation. The sit-in was public, and Chen was accompanied by other merchants who complained about the taking of their property, but that is insufficient to compel the conclusion that political opinion was the reason for any harm to him. See Marquez, 105 F.3d at 380–81 (deferring to the Board’s findings that greed and jealousy, not politics motivated persecution even though alien spoke out against military corruption on radio talk show). As the IJ noted, Chen did not make a broader attack on the government; he therefore is on weaker ground than the alien in Marquez. See id. at 381 (stating the issue as whether the retaliation was because of alien’s public condemnation and broader attack on military corruption).”

Petition Denied.

13-2505 Chen v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Tinder, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Civil Rights — qualified immunity

Where a police officer, after issuing a traffic warning, continued to detain two motorists for 34 more minutes, during which time he conducted a pat-down of both men, a dog sniff of their car’s exterior, and a thorough search of their car’s interior, his motion for qualified immunity was properly denied.

“There was no reason to think that either plaintiff was armed or dangerous. We reach this conclusion for the same reasons that we determined that none of the five reasons Reichert proffers (individually or in combination) amounted to arguable probable cause. If there were a compelling need to pat down the plaintiffs, presumably Reichert would not have waited more than twenty-seven minutes to do so. Moreover, neither a prior conviction nor presence in a high-crime area is alone sufficient for reasonable articulable suspicion that a suspect is armed. See Walden, 146 F.3d at 490; Lawshea, 461 F.3d at 860; United States v. Hairston, 439 F. Supp. 515, 518 (N.D. Ill. 1977). Since there was no reason to suspect that either plaintiff was armed, we affirm the denial of qualified immunity for Reichert’s search of their persons.”

Affirmed.

13-1734 Huff v. Reichert

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Flaum, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Civil Rights — deliberate indifference

The fact that other inmates had committed suicide is insufficient to prove that a jail was deliberately indifferent to the plaintiff’s risk of suicide.

“Mr. Pittman submits that the jail’s suicide prevention policies and practices were so inadequate that they constitute a constitutional violation. In evaluating this claim, we begin by noting that we have recognized in earlier cases that the ‘existence or possibility of other better policies which might have been used does not necessarily mean that the defendant was being deliberately indifferent.’ Frake v. City of Chi., 210 F.3d 779, 782 (7th Cir. 2000); cf. Belbachir, 726 F.3d at 983. Here, the jail provided written suicide prevention policies to officers and those officers received annual training. Mr. Pittman points to no particular deficiency in those policies or in the training regime of the facility. Nor can the fact that the jail experienced thirty-six suicide attempts and three successful suicides — standing alone — evidence that the jail’s policies are inadequate. The bare fact that other inmates attempted suicide does not demonstrate that the jail’s policies were inadequate, that officials were aware of any suicide risk posed by the policies or that officials failed to take appropriate steps to protect Mr. Pittman. See Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (refusing to adopt ‘bright-line rules defining a “widespread custom or practice”’ and emphasizing that the plaintiff must ‘demonstrate that there is a policy at issue rather than a random event’). Nor does the mere fact that the trained prison custodial personnel followed a widespread practice of exercising individual discretion in determining when and how to seek mental health services for inmates and detainees, standing alone, establish that such a practice was a clear constitutional violation. The record does not disclose that the number of attempted suicides and successful attempts required a reevaluation of existing policies or the retraining of jail personnel. Notably, the existing policies provided that jail officials were to respond to inmates’ and detainees’ signs of distress. Mr. Pittman certainly has not met his burden of showing that a failure to take remedial measures was necessary in order to meet constitutional standards. Mr. Pittman’s deliberate indifference claims against Madison County, Sheriff Hertz and Captain Gulash were properly dismissed at summary judgment.”

Affirmed in part, and Reversed in part.

12-3233 Pittman v. County of Madison Illinois

Appeal from the United States District Court for the Southern District of Illinois, Herndon, J., Ripple, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Public Health — disability benefits

Where the ALJ failed to consider a disability claimant’s conditions collectively, the denial of benefits must be reversed.

“We cannot find that these errors were harmless. It seems to us that taking all of Thomas’s impairments together would result in a more restricted RFC than the ALJ formulated. And the ability to use her left hand was integral to Thomas’s past work as a phlebotomist, and thus her claim. As the VE testified, if Thomas were limited to ‘occasional grasping’ with her left, non-dominant hand, she could not work as a phlebotomist, even at a light exertional level. If Thomas could not do her past work, she would have been considered disabled and thus eligible for benefits. 20 C.F.R. app. 2 § 404(p) (a person over age fifty-five who lacks transferable skills and cannot do previous relevant work is considered disabled).”

Reversed and Remanded.

13-2602 Thomas v. Colvin

Appeal from the United States District Court for the Northern District of Illinois, Finnegan, Mag. J., Kanne, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Civil Rights — qualified immunity

In 2010, the law was not clearly established that the odor of burning marijuana was not an exigent circumstance, so officers who entered a home without a warrant were entitled to qualified immunity.

“The district court was right — federal and state courts have been all over the map on this issue. Compare United States v. McMillion, 472 F. App’x 138, 141 (3d Cir. 2012) (smell of burning marijuana provided an exigency); United States v. Grissett, 925 F.2d 776, 778 (4th Cir. 1991) (same); State v. Rodriguez, 945 A.2d 676, 678–79 (N.H. 2008) (same); Rideout v. State, 122 P.3d 201, 208 (Wy. 2005) (same); Mendez v. People, 986 P.2d 275, 282 (Colo. 1999) (same); State v. Hughes, 607 N.W.2d 621, 628 (Wis. 2000) (same); State v. Decker, 580 P.2d 333, 336 (Ariz. 1978) (same), with Howe v. State, 916 P.2d 153, 160 (Nev. 1996) (smell of burning marijuana did not give rise to an exigency); State v. Ackerman, 499 N.W.2d 882, 886–87 (N.D. 1993) (same); State v. Dorson, 615 P.2d 740, 746 (Haw. 1980) (same); State v. Schur, 538 P.2d 689, 694 (Kan. 1975) (same). Adding to the confusion, many of the courts that have dealt with this issue have been willing to consider the smell of burning marijuana only as part of a totality of the circumstances inquiry in deciding whether an exigency exists. See, e.g., State v. Walker, 62 A.3d 897, 906 (N.J. 2013).”

“In light of this fractured case law, we cannot say that ‘at the time of the challenged conduct, the contours of [White’s] right [were] sufficiently clear’ such that ‘every reasonable official would have understood’ that entering the home after smelling the burning marijuana violated the right. Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal alterations and quotation marks omitted). It follows that the deputies are entitled to qualified immunity.”

Reversed.

13-2131 White v. Stanley

Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Flaum, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Torts — FTCA

Where a federal prisoner alleges that prison officials negligently failed to contain a staph infection at the prison, the district court erroneously limited the scope of his claim.

“The government argues that the district court’s pretrial ruling limiting Buechel’s negligence claim did not limit Buechel’s claims but expanded them. It also argues that Buechel could have amended his complaint after counsel was appointed, but he failed to so. We reject both of these quasi-waiver arguments. First, the court’s ruling was not an expansion of Buechel’s claims, and it was not a ‘grant’ of Buechel’s request. Buechel asked the district court to recognize that the negligence claim presented in his pro se administrative claim and complaint encompassed the theory ‘that the United States was negligent because FCI-Greenville employees failed to adequately segregate MRSA-positive inmates, including but not limited to inmate James Joseph Hansen, from the general inmate population, and that this caused Plaintiff’s MRSA infection and seriously injured him.’ Buechel did not ‘request’ that his claims be limited to contact and conditions within and relating to the prison laundry. The government’s insistence that Buechel ‘prevailed’ is groundless.”

Vacated and Remanded.

13-2278 Buechel v. U.S.

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Hamilton, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Civil Procedure — in forma pauperis

Before dismissing a prisoner’s civil rights claim for failure to pay any filing fee, the district court must determine the plaintiff’s ability to pay.

“Accordingly, before dismissing Thomas’s suit, the district court should have attempted to learn why the fee had not been paid by, for example, issuing a show-cause order. See Wilson, 313 F.3d at 1321; Hatchet, 201 F.3d at 654. Thomas asserts on appeal that he could not pay the initial fee because he simply had no funds and no income when payment was due. That may be correct: The transaction record that Thomas submitted to the district court shows that his ending account balance was only $0.02, that he received no deposits in the previous two months, and that only $1.50 had been deposited into the account during the previous three months. But the truth of his assertion that he lacked funds, and whether he can be faulted for lacking them, is for the district court to determine in the first instance.”

Vacated and Remanded.

12-2902 Thomas v. Butts

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Per Curiam.

U.S. Court of Appeals for the Seventh Circuit

Civil
Immigration — China

Where an alien seeking withholding of removal failed to corroborate that he was persecuted for participating in protests in China in 1989, his claim was properly denied.

“Tian submitted no corroborating evidence whatsoever, despite having several sources from which he could have obtained such information. He failed to submit evidence from his family, who knew about his detention and with whom he was in touch; fellow demonstrators from the 1989 demonstration, including Zhao Xuejin, apparently now living in England; or the hotel where he worked until 2001, when he left China. Tian’s failure to obtain corroborating evidence and failure to offer legitimate reasons why this evidence was not available are fatal to his claims.”

“Because Tian does not present a credible account of his past or feared future persecution in China, and because he fails to submit corroborating evidence to overcome his incredible testimony, we deny his petition for review with regard to his withholding of removal claim.”

Petition Denied.

13-2130 Tian v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Tinder, J.

U. S. Court of Appeals for the Seventh Circuit

Civil
Contracts — indemnification

A contractor’s negligence does not bar it from recovering pursuant to an indemnification clause in a contract.

“Harsco may have been negligent after all, and Riley argues that it’s unthinkable that someone whose negligence is responsible for a harm should be entitled to indemnification. Not so. Indemnification is a form of insurance. Liability insurance provides indemnity for damages caused by the insured’s negligence. The indemnity provisions in the contract between Riley and Harsco were the equivalent of provisions in insurance policies.”

Reversed and Remanded.

13-2272 Krien v. Harsco Corp.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Posner, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Insurance – ERISA — contempt

Where an employee and her attorney refuse to pay funds belonging to a subrogee, it is ordered that they show cause why they should not be jailed until they pay.

“The defendants’ conduct has been outrageous. After resolving the merits of the underlying suit, the district court should give serious consideration to transmitting copies of this opinion and the record to the Department of Justice and to the General Counsel of the Georgia Bar. In the meantime, we direct the district court to determine whether the defendants should be jailed (a standard remedy for civil contempt, see, e.g., Turner v. Rogers, 131 S. Ct. 2507, 2512–13 (2011); In re Grand Jury Proceedings, 280 F.3d 1103, 1107–08 (7th Cir. 2002)), until they comply with the order to deposit the settlement proceeds in a trust account.”

Dismissed.

13-2214 Central States, Southeast and Southwest Areas Health and Welfare Fund v. Lewis

Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Posner, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Employment – FELA — LIA

Where a railroad worker’s theory of negligence on the part of the railroad was improbable, but not impossible, the jury’s finding of negligence is affirmed.

“Though we may find Crompton’s theory improbable as far as the laws of physics are concerned, BNSF has produced no evidence to prove his theory impossible. The record contains ample evidence to support Crompton’s version of events as well as the jury’s inference that the front cab door of BNSF 5695 must have been defective in some way. Several BNSF employees testified that doors with a latch just like the one on the front cab door of BNSF 5695 came open from time to time without any outside manipulation. They also testified that BNSF was aware of these doors coming open, and held at least one meeting to discuss the issue. Crompton testified that on April 24, 2011, as the train approached Neilson Junction, he was sure that he latched the door; afterwards, the door stayed closed for almost a minute before it flew open and knocked him from the train. When ‘there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion.’ Lavender v. Kurn, 327 U.S. at 653. Here, the jury chose to believe Crompton’s version of events, and there was a reasonable basis in the record for it to do so. Since BNSF presented no evidence on appeal sufficient to disprove Crompton’s theory of causation, we will not disturb the jury’s verdict.”

Affirmed.

13-1686 Crompton v. BNSF Railway Co.

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Bauer, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Immigration — U Visas — waiver

An immigration judge has jurisdiction to waive statutory inadmissibility to U Visa applicants who qualify for them.

“The only other way section 1182(d)(14) could preclude the Attorney General from granting a waiver of inadmissibility to a U Visa applicant is if Congress impliedly repealed that power when it amended the statute to transfer discretion to the Secretary of Homeland Security. But this amendment does not provide the basis for a finding of implied repeal. ‘[A]bsent a clearly expressed congressional intention, … [a]n implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter Act covers the whole subject of the earlier one and is clearly intended as a substitute.’ Carcieri, 555 U.S. at 395 (second alteration in original) (internal quotation marks omitted). Here, in the face of silence by Congress, we have two statutory provisions that are capable of coexistence if they are understood to provide dual tracks for a waiver determination. The later-enacted law (1182(d)(14)) does not cover the whole subject matter of the former (1182(d)(3)(A)). In fact, it was originally offered as a supplement; it would be odd now to find it a substitute for the blanket waiver provision. In the absence of a clear indication by Congress to the contrary, we find that section 1182(d)(14) and section 1182(d)(3)(A) waivers can and do coexist, and that the IJ has jurisdiction to grant a waiver of inadmissibility to a U Visa applicant under section 1182(d)(3)(A).”

Petition Granted.

13-1011 L.D.G. v. Holder

On Petition for Review of a Final Order of the Board of Immigration Appeals, Wood, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Civil Rights — deliberate indifference — respondeat superior

Liability for deliberate indifference cannot be imposed on a private corporation providing medical services to prisoners.

“[W]e have considered the possibility of circulating an opinion overruling Iskander and its progeny on this point for consideration by the entire court under Circuit Rule 40(e). Since Shields has not asked us to overrule those cases and Wexford has not had occasion to brief the issue, we have decided not to take that approach. A petition for rehearing en banc would provide an opportunity for both sides to be heard on this issue, and our decision is of course subject to review on certiorari. For now, this circuit’s case law still extends Monell from municipalities to private corporations. Iskander, 690 F.2d at 128; Gayton, 593 F.3d at 622; Rodriguez, 577 F.3d at 822. To recover against Wexford under our current precedent, Shields must offer evidence that his injury was caused by a Wexford policy, custom, or practice of deliberate indifference to medical needs, or a series of bad acts that together raise the inference of such a policy. Woodward, 368 F.3d at 927.”

Affirmed.

12-2746, 13-1143 Shields v. IDOC

Appeals from the United States District Court for the Northern District of Illinois, Guzman, J., Hamilton, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Immigration — jurisdiction

When an applicant for naturalization has properly invoked sec. 1447(b) and brought an application to the district court, that court has exclusive jurisdiction over the naturalization application unless and until the matter is remanded to the agency.

“Our sister circuits who have addressed the issue have all rejected the government’s position. See Bustamante v. Napolitano, 582 F.3d 403, 406 (2d Cir. 2009); Etape v. Chertoff, 497 F.3d 379, 383 (4th Cir. 2007); United States v. Hovsepian, 359 F.3d 1144, 1164 (9th Cir. 2004) (en banc). We add our voice to the chorus. Like those circuits, we start with the plain language of § 1447(b), and as they did, we find it incompatible with a system of concurrent jurisdiction. See, e.g., Bustamante, 582 F.3d at 406–07. Congress gave the district courts the power to ‘determine the matter’ once a naturalization petition is properly in front of it; it would be illogical to read this unqualified grant of power to contain an unwritten ‘if …,’ or to give USCIS the prerogative to nullify the court’s statutory power. See Id. at 406; Etape, 497 F.3d at 383; Hovsepian, 359 F.3d at 1160. Similarly, it would render meaningless the district court’s power to ‘remand the matter’ if the agency could act even without a remand. The meaning of ‘remand’ is ‘sending something (such as a case, claim, or person) back for further action.’ BLACK’S LAW DICTIONARY 1406 (9th ed. 2009) (emphasis added); see also Bustamante, 582 F.3d at 406– 07.”

Reversed and Remanded.

12-1229 Aljabri v. Holder

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Wood, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Labor – RLA — minor disputes

A dispute over a railroad’s use of accident reconstruction reports in employee disciplinary investigations is a minor dispute under the Railway Labor Act, over which the district court lacked jurisdiction.

“Applying the Consolidated standard to the instant case, we agree with the district court’s ruling that this dispute is minor. The Discipline Rule requires Norfolk to provide the Brotherhood members with a fair and impartial investigation, but it does not provide extensive procedural requirements or evidentiary rules on how to meet that requirement. The only portion of the Discipline Rule which remotely discusses the presentation of evidence at investigations is paragraph (f), which states that ‘[p]ertinent witnesses called by the carrier [or employee] to testify in disciplinary investigations will be compensated.’ The Discipline Rule does not explicitly address pre-investigation disclosures, the admissibility of hearsay testimony, or the role of expert witnesses.”

Affirmed.

12-3415 Brotherhood of Maintenance of Way Employees v. Norfolk Southern Railway Co.

Appeal from the United States District Court for the Northern District of Illinois, Kendall, J., Bauer, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Consumer Protection — FDCPA

A dunning letter, offering to settle a time-barred debt, violates the FDCPA.

“Our reasoning in Evory supports this understanding. There we considered whether a settlement offer contained in a dunning letter is per se unlawful under § 1692f. The concern was that unsophisticated consumers receiving letters with language like ‘Act now and receive a settlement of 25% off your current balance!’ would believe that if they did not pay by the deadline, they would not have a later chance to settle for less than the full amount. Such a belief would often have been ill-founded, because ‘debt collectors, who naturally are averse to instituting actual collection proceedings for the typically modest sums involved in the consumer debt collection business, frequently renew their offers if the consumer fails to accept the initial offer.’ Evory, 505 F.3d at 775. The recipients of the letters, however, would believe that if they did not immediately accept the offer, they would face legal proceedings where the full amount would be demanded. The risk here is similar: a settlement offer on a time-barred debt implies that the creditor could successfully sue on the debt. If unsophisticated consumers believe either that the settlement offer is their chance to avoid court proceedings where they would be defenseless, or if they believe that the debt is legally enforceable at all, they have been misled, and the debt collector has violated the FDCPA.”

Affirmed in part, and Reversed in part.

12-3504 & 13-2030 McMahon v. LVNV Funding, LLC

Appeal from the United States District Court for the Northern District of Illinois, Kocoras, J., Wood, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Civil Rights — municipal liability

A municipality that merely follows state law in maintaining its voter rolls is not subject to municipal liability if that policy is illegal.

“[T]his situation does not support a finding of Monell liability. When state law unequivocally instructs a municipal entity to produce binary outcome X if condition Y occurs, we cannot say that the municipal entity’s ‘decision’ to follow that directive involves the exercise of any meaningful independent discretion, let alone final policymaking authority. It is the statutory directive, not the follow- through, which causes the harm of which the plaintiff complains.”

Affirmed.

13-1899 Snyder v. King

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Kanne, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — reasonableness

The trial court reasonably refused to consider the years the defendants spent as fugitives as a mitigating factor.

“[A]s to the permissible arguments regarding her life as a fugitive, which she describes as free of crime and without wealth, as well as other mitigating facts like her age, her argument that the district court did not consider these facts is inconsistent with the record. Specifically, the district explained that while Janet and Nelson Hallahan ‘have suffered also from the absence of family connections, living a hunted life, that’s of their choosing. They have chose [sic] to live this way. They could have stopped it at any moment, initially by not leaving or by returning at any time during the past 12 years.’ The court also emphasized that ‘[Janet] chose to turn her back on the family overtures and to stay on the run.’ The district court also considered the age of Janet Hallahan, 55 at the time, noting ‘some sympathy for sentencing anyone in the winter of their life to prison for long terms when they should be at home with their grandchildren and family.’ In addition, the district court considered the testimony of the victims, the nature of the offense, her violation of the trusting relationships with the victims, the length of the flight from justice, and the effect that flight had on the victims.”

Affirmed.

12-3748, 12-3750, 12-3781 & 12-3787 U.S. v. Hallahan

Appeals from the United States District Court for the Central District of Illinois, McDade, J., Griesbach, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Evidence — other acts — harmless error

Even if it was error to admit evidence from a prior heroin conviction that the defendant packaged his heroin in aluminum foil bindles, the error was harmless.

“This evidence that Reed had previously been in possession of heroin packaged in foil bindles was too generic to have anything more than minimal probative value.”

“That said, we review the court’s decision to admit or exclude evidence for abuse of discretion. United States v. Simon, 727 F.3d 682, 696 (7th Cir. 2013); United States v. Thornton, 642 F.3d 599, 604 (7th Cir. 2011). We will reverse and order a new trial only if any evidentiary errors are not harmless. Simon, 727 F.3d at 696; Fed. R. Crim. P. 52(a). Reed’s defense did not truly involve questions of intent, knowledge or mistake in a manner that would make the use of his prior conviction probative on any of these issues. The court’s use of this evidence of similar packaging was therefore questionable under our current case law. But in the context of the extensive list of evidence on which the district court relied to find that Reed exerted ownership over the heroin, we find that any error was harmless. Again, had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence. We ‘can say “with fair assurance” that the verdict was not substantially swayed by the error.’ Miller, 673 F.3d at 701 (citing Kotteakos v. United States, 328 U.S. 750, 765 (1946)).”

Affirmed.

12-3701 U.S. v. Reed

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Rovner, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — crack cocaine

Successive motions for sentence reduction under the Fair Sentencing Act are not allowed.

“Even though jurisdiction was secure, the district court had no choice but to deny Beard’s successive § 3582(c)(2) motion. Section 3582(c)(2) permits the district court to modify a sentence that ‘has subsequently been lowered by the Sentencing Commission.’ 18 U.S.C. 3582(c)(2); see Robinson, 698 F.3d at 444. ‘Once the district judge makes a decision, Rule 35 applies and curtails any further power of revision, unless the Commission again changes the Guidelines and makes that change, too, retroactive.’ Redd, 630 F.3d at 651. In other words, prisoners have only one bite at the apple per retroactive amendment to the sentencing guidelines. See United States v. Goodwyn, 596 F.3d 233, 235–36 (4th Cir. 2010) (permitting prisoner only one opportunity to request sentence modification under same guideline amendment). Beard availed himself of his one opportunity, and he now must accept the district court’s decision.”

Affirmed.

13-2871 U.S. v. Beard

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Wood, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Evidence — undue prejudice — harmless error

In a prosecution under 18 U.S.C. 2422(b), it was harmless error to admit evidence of communications between the defendant and other parties he thought were underage girls.

“Given the limited number of ‘Kellie’ emails that the government used and the directness of their relevance, we cannot say that it is clear that the district court would have opted for exclusion had it looked more carefully at Rule 403. Indeed, our prediction is the opposite: the ‘Kellie’ emails refuted McMillan’s proffered justification for his actions, and so even though they are prejudicial, the balance tips decisively for admission. The government did not get carried away with this evidence, as it has done in some other cases, see, e.g., United States v. Loughry, 660 F.3d 965 (7th Cir. 2011). In fact, the ‘Kellie’ evidence was significantly more limited than the email exchanges in Knope, which upheld the admission of evidence about seven additional minors. In short, although the district court should have weighed the probative value of the ‘Kellie’ evidence against its prejudicial effect, its failure to do so in the circumstances of this case was harmless. These considerations also assure us that the admission of the ‘Kellie’ evidence did not violate McMillan’s due process right to a fair trial.”

Affirmed.

12-1348 U.S. v. McMillan

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Wood, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Habeas Corpus — equal protection

Even though a defendant was tried before the U.S. Supreme court decision in Batson v. Kentucky (1986), he failed to show a valid excuse for not challenging the prosecution’s allegedly discriminatory use of peremptory challenges.

“To be sure, Batson did overrule Swain with respect to the evidentiary burden placed on a defendant claiming unconstitutional use of peremptories. Swain created a presumption, rooted in the history of peremptory strikes at common law, that the prosecution was using those strikes properly. 380 U.S. at 222. The presumption could only be overcome with evidence that the peremptory strike system was being perverted, which proved to be an exceedingly difficult standard to meet. See Batson, 476 U.S. at 91–93.Batson changed the quantum of proof necessary to make out a prima facie case of discrimination, laying out the now-familiar burden-shifting framework and making it possible to prove discrimination with evidence intrinsic to a single case. But none of that means Batson created a new claim that was not available to Richardson at the time of his trial. It simply means Batson made his pre-existing constitutional claim substantially less difficult to prove. According to the Supreme Court, that is not cause. Smith v. Murray, 477 U.S. 527, 537 (1986) (‘the question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was “available” at all.’). Thus, Richardson’s default is not excused.”

Affirmed in part and Reversed in part.

12-1619 & 12-1747 Richardson v. Lemke

Appeals from the United States District Court for the Northern District of Illinois, Kennelly, J., Kanne, J.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests