Weekly Case Digests — April 11-15, 2016

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7^th Circuit Court of Appeals Digests

7^TH Circuit Court of Appeals

Case Name: Brian K. Boulb v. United States of America

Case No.: 15-1383

Officials: BAUER, MANION, and KANNE, Circuit Judges.

Focus: Statute of limitations

Appellant makes petition 16 months after sentencing and properly has petition dismissed as untimely – evidentiary hearing unnecessary

“Decisions from outside this circuit confronting the question of equitable tolling for mental incompetency are of no help to Boulb’s cause. See Riva v. Ficco, 615 F.3d 35 (1st Cir. 2010); Bolarinwa v. Williams, 593 F.3d 226 (2d Cir. 2010); Ata v. Scutt, 662 F.3d 736 (6th Cir. 2011). The courts of appeal in those decisions all remanded the cases back to the district courts for further development to determine if the petitioners’ purported mental incompetency so interfered with their ability to timely file that equitable tolling was warranted. Like Davis, however, each of the district courts in those cases had specific facts before them relating to the petitioners’ alleged mental incompetency, not conclusory allegations. See Riva, 615 F.3d at 41–42 (petitioner proffered medical records demonstrating he “suffered from a debilitating mental illness throughout the tolling interval” along with medical expert testimony); Bolarinwa, 593 F.3d at 229–30 (petitioner with purported “‘psychiatric problems’” alleged she had been placed in psychiatric units, provided dates for her alleged placement in those units as well as a letter from a social worker at one of the hospitals describing her psychiatric problems); Ata, 662 F.3d at 743 (petitioner alleged he had been hospitalized several times because of his paranoid schizophrenia and continues to be medicated by the state prison system for that illness and other psychoses). As discussed above, Boulb has failed to do the same here.”

Affirmed

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7^TH Circuit Court of Appeals

Case Name: United States of America v. Adolph Common

Case No.: 14-3480

Officials: FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge

Focus: Motion to Suppress – Admission of Testimony

Motion to suppress confession of appellant properly denied – appellant fails to provide evidence of court error in finding officer testimony is not credible.

“However, Common has not shown that the district court clearly erred in finding that the officers were credible. The district court acknowledged Common’s argument but was not convinced. The court noted that police reports are often not as detailed as they could be. Additionally, the court was convinced by Hanrahan’s explanation for why he wrote that Common confessed to Murphy, even though Hanrahan was also present for the confession. Hanrahan explained that he wrote the reports this way “because Officer Murphy was the one talking to [Common] and the one asking the questions.” The district court’s findings are not “completely without foundation,” thus we will not second guess its credibility determination. See Huebner, 356 F.3d at 812.”

Affirmed

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7^TH Circuit Court of Appeals

Case Name: Arlene Nunez et al v. Indiana Department of Child Services

Case No.: 15-2800

Officials: BAUER, FLAUM, and HAMILTON, Circuit Judges

Focus: Fair Labor Standards Act – Exceptions to 11^th Amendment Immunity

1998 amendment to Title 34 of Indiana Code did not waive State immunity from federal-court jurisdiction.

“This argument runs into three problems, each of which would be sufficient to reject it. First, application of the FLSA to state employees was not settled in 1998, as shown by the Supreme Court’s decision in Alden v. Maine, 527 U.S. 706 (1999), which held under the Eleventh Amendment that Congress could not subject states to FLSA suits even in state courts without the states’ consent. Second, the argument again relies on an erroneous presumption in favor of waiver. States must explicitly waive sovereign immunity, not explicitly preserve it. Finally, the argument reads far too much into the 1998 re‐ codification of Title 34 of the Indiana Code dealing with civil procedure. Public Law 1‐1998 was intended to recodify existing law, not to change substantive law, and certainly not to do anything as substantive as implicitly waive the state’s Eleventh Amendment immunity. See Ind. Code § 34‐7‐1‐4 (instructions on how to construe recodification act of 1998); Cheri A. Harris, Cleaning House in Title 34: Recodification of the Civil Code of 1881, Res Gestae, April 1998, at 26 (“An effort is made to resolve ambiguities in current law whenever possible, but with the condition that no substantive changes are to be made in the law.”). The recodification of the older statute of limitations did not indicate any deliberate choice by the state to waive the protections of the Eleventh Amendment.”

Affirmed

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7^TH Circuit Court of Appeals

Case Name: Asher B. hill v. Jerry Snyder, et al

Case No.: 15-2607

Officials: BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

Focus: 8^th Amendment – Summary Judgment

Summary judgment for appellant claim improper where appellant took all proper channels required to handle his grievance.

“In this case, Hill sought the required form not from a randomly chosen staff member but from his counselor and unit manager. Each of those officials was responsible under the grievance policy for giving Hill an available grievance form upon request. Hill’s affidavit shows that they refused to do so for the third incident and, construed at this juncture in his favor, permits an inference they refused to do so for the fourth. The record also does not indicate that either had any legitimate reason for refusing his request. The evidence of their refusals to give Hill an available form is sufficient to permit a finding that Hill was prevented from grieving these incidents. The administrative remedies were not available to him. He was not required to hunt for a form from other staff members. Defendants are not entitled to summary judgment based on this defense”

Vacated and Remanded in part

Affirmed in part

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7^TH Circuit Court of Appeals

Case Name: Dana Siragusa, et al v. Arturo Collazo

Case No.: 15-2324

Officials: POSNER, EASTERBROOK, and KANNE, Circuit Judges

Focus: Bankruptcy – Adversary Action

Lenders challenge dischargeability of debt for real estate developer.

“The bankruptcy judge also rejected Dana’s claim that Collazo had committed fraud when he transferred the Chicago condo units to new LLCs. (Dana was the only one of the Siragusa offspring who had invested in those units.) The judges assumed that to constitute fraud under 11 U.S.C. § 523(a)(2)(A) a debtor’s false representation must induce the creditor to part with money or property. Dana contends that Collazo committed fraud when he transferred condo units to new LLCs, since the fraud exception to a discharge in bankruptcy encompasses a debtor’s transferring valuable proper‐ ty in order to keep it out of the hands of the creditors entitled to it. McClellan v. Cantrell, 217 F.3d 890, 894–95 (7th Cir. 2000). That may have happened in this case; Collazo may have “rendered the debt uncollectible by making an actually fraudulent conveyance of the property that secured it,” and if so “his actual fraud [gave] rise to a new debt, nondischargeable because created by fraud.” Id. at 895; see also In re Lawson, 791 F.3d 214, 218–22 (1st Cir. 2015). The question whether, as we held in the McClellan case, there can be a fraud without a fraudulent statement (for the fraud we’re discussing is a silent transfer of property rather than a lie) is now before the Supreme Court in Husky International Electronics, Inc. v. Ritz, No. 15‐145, argued on March 1 of this year. Should the Court agree with our analysis in the McClellan case, Dana will be entitled on remand to resuscitate her fraud claim.”

Affirmed in Part

Reversed and Remanded in Part

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7^TH Circuit Court of Appeals

Case Name: Nora Chaib v. The GEO Group, Inc.

Case No.: 15-1614

Officials: BAUER and HAMILTON, Circuit Judges, and PETERSON, District Judge.

Focus: Title VII – Retaliation – Summary Judgment

Summary judgment properly granted on appellant Title VII claim for failure to provide sufficient evidence to support claim.

“But even assuming that these disturbing incidents happened exactly as Chaib alleges, they were unrelated to the events and investigation that led to GEO Group’s decision to fire Chaib. Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001) (“[E]vidence of inappropriate remarks not shown to be directly related to the employment decision may not support a direct-method-of-proof case.”). There is no evidence that Lieutenant Davis participated in GEO Group’s decision to fire Chaib. Without some connection between the offensive conduct that Chaib described and the termination decision, no reasonable jury could make the requisite inference that she was fired for discriminatory reasons. Chaib’s directmethod argument fails.”

Affirmed

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7^TH Circuit Court of Appeals

Case Name: 14-2153; 14-2533; 15-1316

Case No.: MISO Transmission Owners, et al v. Federal Energy Regulatory Commission, et al

Officials: POSNER, EASTERBROOK, and HAMILTON, Circuit Judges.

Focus: Petition for Review – Challenge to FERC Ruling

Challenges to FERC ruling on rights of first refusal denied

“Granting a right of first refusal to build a project makes sense when the grantee clearly is best suited to build it, so that it would be a waste of time to invite and conduct competitive bidding. Apparently that used to be the situation in what is now MISO’s region, but by 2011 FERC was convinced that competition among firms for the right to build transmission facilities would result in lower rates to consumers of electricity. There would be a low bidder, and the lower his bid and therefore (in all likelihood) the cost of the facility he built, the lower would be the rates charged consumers of the electricity transmitted by the facility. In contrast, when the local firm has a right of first refusal an out‐ sider will have little incentive to explore the need for a new transmission facility because the local firm would be likely to say to the outsider (sotto voce) “thank you very much for identifying, at no cost to me, a lucrative opportunity for me to exploit,” and thus the outsider would be unable to recoup the cost of his research into the need for the new facility. See Order No. 1000, supra, 136 FERC ¶ 61051 at P 257; see also South Carolina Public Service Authority v. FERC, 762 F.3d 41, 72 (D.C. Cir. 2014).”

Petition for Review Denied

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7^TH Circuit Court of Appeals

Case Name: United States of America v. Adam Brent Hill

Case No.: 15-3090

Officials: WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges

Focus: Waiver

Defendant not given opportunity to properly waive objections at sentencing

“So, to conclude, if the limited remand that we’re ordering results in a determination that the defendant knowingly waived all challenges to the conditions of supervised release, we will grant the Anders motion and that will be the end of the case. If instead the determination is that he did not knowingly waive all challenges to the conditions, the case will again come before us and he will need to decide (and through his counsel advise us of the decision) whether or not to challenge the conditions, since a successful challenge, followed by a remand for resentencing, will leave the judge free to impose a longer, as well as in the alternative a shorter, prison sentence. For now, however, we need only remand the case for a determination of whether the defendant knowingly waived all objections to the conditions of supervised release imposed by the district court. The defendant’s lawyer shall continue to represent the defendant on remand, and is ordered to file a status report with this court within 14 days of the district court’s ruling on remand.”

Remanded with Directions

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7^TH Circuit Court of Appeals

Case Name: Mary T. Janetos, et al v. Fulton Friedman & Gullace, LLP, et al

Case No.: 15-1859

Officials: BAUER and HAMILTON, Circuit Judges, and PETERSON, District Judge

Focus: Debt Collection – FDCPA

Appellant argues that respondent failed to disclose current creditor name in correspondence for debt collection – letters found to be unclear and in violation of FDCPA

“Second and more fundamental, even where a consumer would recognize Asset Acceptance as having owned the debt at some time in the past (perhaps from pre‐lawsuit collection efforts or the lawsuit itself), the form letter said that the “ac‐ count” had since been “transferred” from Asset Acceptance to Fulton. Defendants do not explain how, in light of this language, an understanding of Asset Acceptance’s former role would have shown its current role”

Reversed and Remanded

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7^TH Circuit Court of Appeals

Case Name: United States of America v. David Weimart

Case No.: 15-2453

Officials: BAUER, FLAUM, and HAMILTON, Circuit Judges.

Focus: Criminal Wire Fraud

Executive’s lack of candor to the board in sale of equity interest in real estate development deal did not amount to wire fraud.

“To take a simple example based on price, suppose a seller is willing to accept $28,000 for a new car listed for sale at $32,000. A buyer is actually willing to pay $32,000, but he first offers $28,000. When that offer is rejected and the seller de‐ mands $32,000, the buyer responds: “I won’t pay more than $29,000.” The seller replies: “I’ll take $31,000 but not a penny less.” After another round of offers and demands, each one falsely labeled “my final offer,” the parties ultimately agree on a price of $30,000. Each side has gained from deliberately false misrepresentations about its negotiating position. Each has affected the other side’s decisions. If the transaction involves interstate wires, has each committed wire fraud, each defrauding the other of $2,000? Of course not. But why not? The government’s answer at oral argument was the absence of “intent to defraud.” That answer begs the question. How do we recognize “intent to defraud” if a party has gained a better deal by misleading the other party about its”

Reversed

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7^TH Circuit Court of Appeals

Case Name: Julio Estrada-Hernandez v. Loretta E. Lynch

Case No.: 15-2336

Officials: WOOD, Chief Judge, and BAUER and KANNE, Circuit Judges.

Focus: Immigration – Removal

Appellant petition for review of removal denied

“The Board rejected all of Estrada-Hernandez’s arguments and upheld the removal order. It concluded that Estrada-Hernandez was afforded due process because the IJ fully complied with the statutory requirement to inform him of his right to obtain counsel, 8 U.S.C. § 1229a(b)(4), and offered repeatedly to continue the case to allow Estrada Hernandez to obtain representation. The Board dismissed any suggestion that the IJ shifted the burden of proof regarding the charges set forth in the Notice to Appear; the government properly supported its charges with evidence of each conviction. As for the question whether Estrada Hernandez’s firearms conviction was an aggravated felony for immigration purposes, the Board observed that this court already had resolved the question in the government’s favor. Negrete Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008). The Board rejected Estrada-Hernandez’s contention that he was not removable under 8 U.S.C. § 1227(a)(2)(iii) because he was never “admitted” at a border; it held that Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005), establishes that adjustment of status qualifies as an admission for purposes of § 1227(a)(2)(A)(iii).”

Petition for Review Denied

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7^TH Circuit Court of Appeals

Case Name: Lula Dixon v. County of Cook, et al

Case No.: 13-3634

Officials: WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

Focus: 8^th Amendment & 14^th Amendment Violation

Appellant case brought on behalf of inmate that died from inattention of prison medical staff improperly dismissed.

“The amended complaint alleged that Dr. Bonaparte knew about Dixon’s chest tumor no later than December 31, 2008, and yet she offered him only non-prescription pain medication, discharged him from the jail’s hospital, ordered a psychiatric consult to determine if he was malingering, and ordered that his wheelchair be removed upon his arrival back at the regular jail. A jury could find, based on these facts, that her behavior was “so plainly inappropriate as to permit the inference that [she] intentionally or recklessly disregarded his needs.” Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). It might also draw the opposite inference, if it thought that she was unable to learn about the results of Dixon’s earlier tests through no fault of her own. Dixon’s claim is not, however, defeated by the possibility that the most Dr. Bonaparte might have been able to do differently was to provide Dixon with six additional days of palliative care (from December 31 through January 5 when he was transferred to Stroger Hospital). Six days of intense pain cannot be considered to be de minimis for Eighth Amendment purposes. Furthermore, a plaintiff can state a claim of deliberate indifference even if he has a condition that may not be curable. Williams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007).”

Reversed and Remanded

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7^TH Circuit Court of Appeals

Case Name: United States of America v. Salvador Guadalupe Navarro

Case No.: 12-2606

Officials: BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge. *

Focus: Plea Agreement – Breach

Government argument for upward departure from agreed upon sentence range recommendation range was in breach of plea agreement.

“Of course, requests for departures and sentencing recommendations are not binding on courts, and courts are free to impose sentences longer than those the government requests. But it appears that in this case the court was influenced by the parties’ recommendations, as the sentence imposed was just above the midpoint between what the government and Navarro requested. The government’s breach of the plea agreement focused the district court’s attention on application note 2, with the weight of the government’s recommendation behind it. This recommendation had extra force because it included a specific number that was far above the applicable guidelines range. As we suggested in United States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir. 2010), a case determining whether an objected-to breach merited reversal of a sentence, the effects of a breach are particularly hard to eliminate when the prosecutor demonstrates a “strong commitment to a sentence” and does nothing to retract the recommendation that breaches the plea agreement. And while, of course, the judge would have been free on his own to refer to application note 2, this remains an adversarial system in which parties and their counsel play essential roles in framing the choices for the judge. The improper upper guidelines number offered by the government may well have anchored the district judge to an inflated sentencing range. We conclude that, had the government’s initial recommendation started at a lower point, Navarro likely would have received a lower sentence. See United States v. Ingram, 721 F.3d 35, 40 (2d Cir. 2013) (Calabresi, J., concurring) (discussing how “anchoring effects” influence judgments and noting that the court “cannot be confident that judges who begin” at a higher guidelines range “would end up reaching the same ‘appropriate’ sentence they would have reached” if they started from a lower guidelines range); see also Hon. Mark W. Bennett, Confronting Cognitive “Anchoring Effect” and “Blind Spot” Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw, 104 J. Crim. L. & Criminology 489, 492 (2014) (discussing the “potential robust and powerful anchoring effect” of the sentencing guidelines and “the effect of the ‘bias blind spot’ in determining just sentences”); Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 Science 1124, 1124 (1974) (classic theoretical work on how framing and expectations influence judgment).

Reversed and Remanded

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WI COURT OF APPEALS DIGESTS

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Raymond L. Nieves

Case No.: 2014AP1623-CR

Officials: Curley, P.J., Kessler and Brash, JJ.

Focus: Court Error – Ineffective Assistance of Counsel – Admittance of Hearsay

P.J. Raymond L. Nieves appeals a judgment of conviction for first-degree intentional homicide, as a party to a crime and with the use of a dangerous weapon, contrary to WIS. STAT. §§ 940.01(1)(a), 939.50(3)(a), 939.05, and 939.63(1)(b) (2009-10), and attempted first-degree intentional homicide, as a party to a crime and with the use of a dangerous weapon, contrary to WIS. STAT. §§ 940.01(1)(a), 939.50(3)(a), 939.32, 939.05, and 939.63(1)(b) (2009-10). Nieves also appeals the order denying his postconviction motion. On appeal, Nieves argues that: (1) the court erred when it denied, without a hearing, his postconviction motion asserting that his trial counsel was ineffective for failing to sufficiently investigate and present an alibi defense; (2) the trial court erred when it denied his pretrial severance motion; and (3) the trial court improperly admitted unreliable and prejudicial hearsay testimony at trial. Because we agree that the trial court erred in denying Nieves’s motion to sever, and admitted unreliable and prejudicial hearsay testimony, we reverse and remand for a new trial.

WI Court of Appeals – District III

Case Name: State of Wisconsin v Keith Beauchamp

Case No.: 2015AP16

Officials: Hruz, Seidl and Curley, JJ.

Focus: Ineffective Assistance of Counsel

Keith Beauchamp appeals an order denying his WIS. STAT. § 974.06 postconviction motion without a hearing. Beauchamp contends a note sent by one of the jurors to the court near the end of the trial showed the juror failed to hear or failed to comprehend the trial testimony and raised a question of her attentiveness. He argues his trial counsel was ineffective for failing to request a mistrial or voir dire regarding the juror’s capacity, and the circuit court should have sua sponte investigated the juror’s attentiveness. The State contends the motion is procedurally barred by Beauchamp’s earlier postconviction motions and appeals pursuant to State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).

WI Court of Appeals – District I

Case Name: Stacy Miller et al v. Bryan Mardak

Case No.: 2015AP206

Officials: Curley, P.J., Brennan and Brash, JJ.

Focus: Breach of Contract – Negligent Misrepresentation

Bryan Mardak appeals the grant of summary judgment to intervenor AMCO Insurance Company (AMCO) in this suit for monetary damages brought by the buyers of a condominium previously owned by Mardak. The trial court also relieved AMCO of any duty to defend Mardak in that suit. Mardak contends that the trial court erred in determining that his commercial general liability (CGL) insurance policy issued by AMCO covered no damages being sought in the underlying action, which alleges that Mardak failed to reveal a sewer lateral defect in the condominium that he sold. The buyers claim that Mardak: 1) breached the contract (warranty) for the sale of the home; 2) intentionally misrepresented the condition of the home; 3) violated WIS. STAT. § 100.18 (2013-14) ; and 4) negligently misrepresented the condition of the home. Mardak concedes that there is no coverage for breach of contract, intentional misrepresentation, or a violation of WIS. STAT. § 100.18, as these causes of action allege intentional conduct. However, Mardak contends that the trial court erred in finding no initial grant of coverage for the claim alleging he negligently misrepresenting the condition of the sewer lateral. This is so, according to Mardak, because he made no misrepresentation of a defect to the buyers. Rather, he believes the sewer issue is a maintenance problem that can be remedied when serviced periodically. Thus, he maintains that there is a genuine issue of material fact preventing the trial court from granting summary judgment. We disagree and affirm. We are obligated, when interpreting an insurance policy, to compare the allegations in the complaint to the terms of the insurance policy. Estate of Sustache v. American Family Mut. Ins. Co., 2008 WI 87, ¶20, 311 Wis. 2d 548, 751 N.W.2d 845. Here, the buyers allege that Mardak misrepresented both orally and in the Real Estate Condition Report that there was no defect in the sewer lateral. There is no mention in the amended complaint of a maintenance problem. When we look at the amended complaint and compare it to the policy language defining “property damage” and an “occurrence,” we conclude that here, there was neither “property damage” nor an “occurrence” alleged. Thus, the trial court correctly granted summary judgment to AMCO.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Tyler Q. Hayes; State of Wisconsin v. Tanner Crisp

Case No.: 2015AP314-CR; 2015AO215-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Motion to Suppress

The State appeals the circuit court’s orders granting motions to suppress filed by Tyler Hayes and Tanner Crisp.  For the following reasons, we reverse.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Henry J. Bloedorn

Case No.: 2015AP953-CR

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J

Focus: Alford Plea – Ineffective Assistance of Counsel

Henry J. Bloedorn appeals his judgment of conviction and the circuit court’s denial of his postconviction motion to withdraw his Alford plea, alleging that defense counsel was ineffective for (1) failing to adequately advise him regarding the evidence against him, defense strategy, and possible prison sentences; (2) allowing a presentence investigation (PSI) to continue while he was still considering whether to withdraw his guilty plea; and (3) failing to properly argue for a reasonable prison sentence. We affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Esequiel Morales-Pedrosa

Case No.: 2015AP1072-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Ineffective Assistance of Counsel

Esequiel Morales-Pedrosa appeals his judgment of conviction following a jury trial and the trial court’s denial of his postconviction motion seeking a new trial. All fourteen counts of the judgment relate to Morales-Pedrosa sexually assaulting his teenage daughter, B.M., on multiple occasions. Morales-Pedrosa contends his trial counsel provided him ineffective assistance by failing to (1) object on the ground of impermissible “vouching” to testimony by a State expert witness that it is “commonly understood that approximately 90 percent of reported cases are true” and (2) object to “other acts” evidence that Morales-Pedrosa had sex with the victim’s mother—who, at the time of trial, had been with Morales-Pedrosa for nearly twenty years and married to him for approximately twelve years—when she was the same age as the victim. He also claims his right under the Sixth Amendment to the United States Constitution to confront his accuser was violated when other witnesses testified regarding statements B.M. had previously made to them because such testimony was presented after B.M. had testified and was “excused.” We conclude trial counsel was not ineffective and Morales-Pedrosa’s confrontation right was not violated. We affirm

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Lazeric R. Maxey

Case No.: 2015AP2137-CR

Officials: NEUBAUER, C.J.

Focus: Sentence Credit

Lazeric R. Maxey appeals from an order denying his motion for a 138-day credit against his sentence after revocation of probation in this misdemeanor case. The circuit court properly denied Maxey’s motion for sentence credit. The record indicates that the 138 days Maxey spent incarcerated were the result of two extended supervision holds on a prior felony conviction, arising first from the commission of the misdemeanor at issue in this case, and later, from new criminal charges. His probation in this misdemeanor case was also revoked as a result of the new criminal charges. Maxey argues he is entitled to sentence credit in this case for the time spent in custody during the extended supervision holds because of the overlap. The circuit court ordered the sentence after revocation of probation in this misdemeanor case to run consecutive to the felony sentence. The sentence on the felony was imposed first, and there was more than sufficient time remaining on the felony against which to apply the sentence credit for the extended supervision holds. The credit must be applied linearly—to the first applicable sentence. Maxey is not entitled to double credit and has failed to establish that he is entitled to credit on this consecutive misdemeanor sentence. We affirm

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Alina N. Caminiti; State of Wisconsin v. Matthew B. Caminiti

Case No.: 2015AP122-CR; 2015AP123-CR

Officials: Kloppenburg, P.J., Higginbotham, and Blanchard, JJ

Focus: Due Process – Motion to Dismiss

Alina and Matthew Caminiti, a couple with two young children, were convicted at a joint jury trial of multiple counts of intentionally causing bodily harm to their children, in violation of WIS. STAT. § 948.03(2)(b) (2013-14).  The evidence at trial included statements by Alina and Matthew that each had engaged in what they referred to as “rod discipline” of their children. By the Caminitis’ own accounts, rod discipline involved striking the children on their bare bottoms with wooden spoons or rods, using sufficient force to cause bruising. The State does not dispute the Caminitis’ contention that their practice of rod discipline was an exercise of their sincerely held religious beliefs. Alina and Matthew argued to the circuit court that this prosecution abridges their substantive due process right to discipline their children, and their rights to the free exercise of religion under the United States Constitution and to freedom of conscience under the Wisconsin Constitution. The court rejected these arguments, and Alina and Matthew appeal their respective judgments of conviction and orders denying pretrial motions to dismiss based exclusively on these constitutional issues. On appeal, the Caminitis pursue only arguments based on facial constitutional challenges to the set of statutes at issue. For the reasons provided below, we affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Demitrius v. Matticx

Case No.: 2015AP704-CR

Officials: Kloppenburg, P.J., Lundsten and Sherman, JJ.

Focus: Ineffective Assistance of Counsel

Demitrius Matticx appeals the judgment of conviction and the denial of his postconviction motion for a new trial after he was convicted of one count of first-degree intentional homicide as party to a crime and three counts of first-degree recklessly endangering safety by use of a dangerous weapon as party to a crime. Matticx argues that he is entitled to a new trial because his trial counsel was ineffective by: (1) not moving to strike testimony from Matticx’s cellmate, Larry Hilton, and (2) not objecting to a portion of the prosecutor’s closing argument referring to a “natural and probable consequence.” For the reasons set forth below, we reject Matticx’s arguments. Therefore, we affirm.

WI Court of Appeals – District IV

Case Name: Sara Tripalin et al v. American Family Mutual Insurance Company

Case No.: 2015AP1330

Officials: Kloppenburg, P.J, Sherman, and Blanchard, JJ

Focus: Motion for Summary Judgment

Sara Tripalin and Robert Gingras (collectively “Tripalin”) appeal an order granting American Family Insurance Company’s motion for summary judgment and dismissing Tripalin’s three bad faith claims against American Family. Tripalin argues that the circuit court erred in granting summary judgment, but as we explain her arguments fail because they ignore the standards that courts are to apply to first-party bad faith insurance claims at the summary judgment stage. Accordingly, we affirm.

WI Court of Appeals – District IV

Case Name: Thomas M. Smith et al v. Wisconsin Mutual Insurance Company et al

Case No.: 2015AP1499

Officials: Lundsten, Higginbotham and Sherman, JJ

Focus: Dog attack – Damages

Thomas and Cary Smith’s pet dog was attacked and badly injured by a larger dog owned by neighbors. Liability was not contested. The dispute here is over damages. The Smiths incurred significant veterinary bills and related costs in an apparently successful attempt to save their dog. The Smiths sought damages totaling over $12,000, which they argued were subject to doubling under WIS. STAT. § 174.02(1)(b). The circuit court, however, in keeping with normal limits in property damage cases, limited damages to the cost of a replacement dog of the same breed, which the parties agreed would have cost $2,695. The court doubled that amount.

WI SUPREME COURT DIGESTS 

WI Supreme Court

Case Name: State of Wisconsin v. Jimmie Lee Smith

Case No.: 2013AP1228-CR

Focus: Court Error – Competency

Court of appeals improperly weighed evidence gathered as to competency.

“We conclude that the decision of the court of appeals is grounded in an improper weighing of evidence. The postconviction court was not required to accept the testimony of experts. Byrge, 237 Wis. 2d 197, ¶48 (“Elaborate psychiatric evaluations sometimes introduce a clinical diagnosis that may not speak to competency to proceed.”). Rather than rubberstamping experts’ retrospective evaluations, the postconviction court weighed evidence and ultimately was convinced by Attorney Sargent’s testimony. See Medina v. California, 505 U.S. 437, 450 (1992) (“[D]efense counsel will often have the best-informed view of the defendant’s ability to participate in his defense.”)”

CONCURRED: ZIEGLER, J. concurs

DISSENTED: ABRAHAMSON, J., joined by BRADLEY, A. W., J. dissent

NOT PARTICIPATING: BRADLEY, R. G., J. did not participate

Reversed

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WI Supreme Court

Case Name: S.A.M. et al v. Nancy M. Meister

Case No.: 2014AP1283

Focus: Visitation Rights

Grandparent who files a motion for visitation rights does not have to prove a parent-child relationship.

“Applying this interpretive methodology, we conclude that the phrase “who has maintained a relationship similar to a parent-child relationship with the child” applies only to an otherwise undefined “person” who petitions for visitation rights under Wis. Stat. § 767.43(1), not to a grandparent, greatgrandparent, or stepparent. A grandparent, greatgrandparent, or stepparent need not prove a parent-child relationship to succeed on a petition for visitation. By this we mean that “maintain[ing] a relationship similar to a parentchild relationship with the child” is not the sine qua non of a visitation petition by a grandparent, greatgrandparent, or stepparent under § 767.43(1). It is, however, the sine qua non for a petitioner who is not a grandparent, greatgrandparent, or stepparent under § 767.43(1).”

CONCURRED: ABRAHAMSON, J. concurs ZIEGLER, J., joined by GABLEMAN, J. concur

DISSENTED: NOT PARTICIPATING: BRADLEY, R. G., J. did not participate

Reversed

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US SUPREME COURT DIGESTS

United States Supreme Court

Case Name: Enewel et al v. Abbott, et al

Case No.:14-940

Focus: Voting – Legislation

A state may draw its legislative districts based on total population.

“Constitutional history shows that, at the time of the founding, the Framers endorsed allocating House seats to States based on total population. Debating what would become the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Retaining the total-population rule, Congress rejected proposals to allocate House seats to States on the basis of voter population. See U. S. Const., Amdt. 14, §2. The Framers recognized that use of a total-population baseline served the principle of representational equality. Appellants’ voter-population rule is inconsistent with the “theory of the Constitution,” Cong. Globe, 39th Cong., 1st Sess., 2766–2767, this Court recognized in Wesberry as underlying not just the method of allocating House seats to States but also the method of apportioning legislative seats within States.”

Concurring: THOMAS

Dissenting: ALITO, THOMAS (IN PART)

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United States Supreme Court

Case Name: Nichols v. United States

Case No.:15-5238

Focus: Sex Offender Registry

Sex Offender Registration and Notifcation Act does not require appellant to update registration in one state after moving from that sate.

“SORNA’s plain text dictates this holding. Critical here is §16913(a)’s use of the present tense. Nichols once resided in Kansas, but after moving, he “resides” in the Philippines. It follows that once Nichols moved, he was no longer required to appear in Kansas because it was no longer a “jurisdiction involved.” Nor was he required to appear in the Philippines, which is not a SORNA “jurisdiction.” §16911(10). Section 16913(c)’s requirements point to the same conclusion: Nichols could not have appeared in person in Kansas “after” leaving the State. SORNA’s drafters could have required sex offenders to deregister in their departure jurisdiction before leaving the country had that been their intent.”

Reversed

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United States Supreme Court

Case Name: Woods v. Etherton

Case No.:15-723

Focus: Ineffective Assistance of Counsel

Petition for certiorari granted for ineffective assistance of counsel claim.

“Etherton’s underlying complaint is that his appellate lawyer’s ineffectiveness meant he had “no prior opportunity to cross-examine the anonymous tipster.” Brief in Opposition 11. But it would not be objectively unreasonable for a fairminded judge to conclude—especially in light of the deference afforded trial counsel under Strickland— that the failure to raise such a claim was not due to incompetence but because the facts in the tip were uncontested and in any event consistent with Etherton’s defense. See Harrington, 562 U. S., at 105 (“Even under de novo review, the standard for judging counsel’s representation is a most deferential one.”). A fairminded jurist could similarly conclude, again deferring under Strickland, that appellate counsel was not incompetent in drawing the same conclusion. And to reach the final point at issue before the Sixth Circuit, a fairminded jurist— applying the deference due the state court under AEDPA— could certainly conclude that the court was not objectively unreasonable in deciding that appellate counsel was not incompetent under Strickland, when she determined that trial counsel was not incompetent under Strickland. Given AEDPA, both Etherton’s appellate counsel and the state habeas court were to be afforded the benefit of the doubt. Burt, supra, at ___. Because the Sixth Circuit failed on both counts, we grant the petition for certiorari and reverse the judgment of the Court of Appeals.”

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