Weekly Case Digests – February 3, 2020 – February 7, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Kelvin Lett v. City of Chicago, et al.

Case No.: 19-1463

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

Focus: 1^st Amendment Violation

Kelvin Lett was an investigator in the Chicago municipal office that reviews allegations of police misconduct. In that role, Lett helped prepare an investigative report about a police shooting. Lett’s supervisor directed him to write in the report that police officers had planted a gun on the victim of the shooting, but Lett did not believe that the evidence supported that finding and refused. After he faced disciplinary consequences as a result, Lett sued his supervisors and the City of Chicago for retaliating against him in violation of the First Amendment. The district court dismissed all of Lett’s claims, and Lett now appeals, insisting that his refusal to alter the report constitutes protected citizen speech. But as the district court recognized, Davis v. City of Chicago, 889 F.3d 842 (7th Cir. 2018), squarely forecloses this argument. Because Lett spoke pursuant to his official duties and not as a private citizen when he refused to alter the report, the First Amendment does not apply.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Hosea Word v. City of Chicago, et al.

Case No.: 19-1320

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

Focus: Due Process Violation and Equal Protection Claim

Plaintiff Hosea Word is a sergeant and aspiring lieutenant in the Chicago Police Department (CPD). Having just missed out on a promotion following the 2006 lieutenants’ examination, Word missed the cut again after receiving a lower-ranking score on the 2015 examination. Word alleges that high-ranking members of CPD leadership connived to sneak early test content to their “wives and paramours” prior to the 2015 exam, resulting in those romantic partners acing the test and receiving promotions. The district court dismissed Word’s constitutional due process and equal protection claims, as well as his breach of contract claims. Illinois and federal caselaw squarely preclude Word’s case. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Alex Guerrero

Case No.: 19-1676

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

Focus: Sentencing Guidelines

Since 2015, defendant-appellant Alex Guerrero has sought a reduction of his prison sentence under Amendment 782 to the United States Sentencing Guidelines, which reduced guideline ranges for drug quantities. Despite some procedural complications, we agree with Guerrero that he is entitled to and has not yet received one opportunity for full consideration of the merits of his request. Accordingly, we vacate the decision of the district court and remand so that he may properly present such a motion, the merits of which are for the sound discretion of the district court.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Johnnie Lee Savory v. William Cannon, Sr.,

Case No.: 17-3543

Officials: WOOD, Chief Judge, and EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER and ST. EVE, Circuit Judges.

Focus: Statute of Limitations – Habeas Corpus

Johnnie Lee Savory spent thirty years in prison for a 1977 double murder that he insists he did not commit. Even after his release from prison, he continued to assert his innocence. Thirty-eight years after his conviction, the governor of Illinois pardoned Savory. Within two years of the pardon, Savory filed a civil rights suit against the City of Peoria (“City”) and a number of Peoria police officers alleging that they framed him. The district court found that the claims accrued more than five years before Savory filed suit, when he was released from custody and could no longer challenge his conviction in habeas corpus proceedings. Because the statute of limitations on his claims is two years, the district court dismissed the suit as untimely. Savory appealed to this court, and the panel reversed and remanded after concluding that the claim was timely under Heck v. Humphrey, 512 U.S. 477 (1994), because it accrued at the time of Savory’s pardon, within the two-year limitations period. We granted the defendants’ petition for rehearing en banc and vacated the panel’s opinion and judgment. We again conclude that Heck controls the outcome here, and we reverse and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Carlos A. Vasquez-Abarca

Case No.: 18-3716

Officials: HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – Resentencing

Defendant Carlos Vasquez-Abarca appeals his sentence for reentering the United States illegally after a prior deportation following a felony conviction, in violation of 8 U.S.C. § 1326(a). The district court imposed a sentence of 72 months in prison, about twice the range of 30 to 37 months in prison advised by the Sentencing Guidelines. The sentence was well within the statutory limits and was a reasonable exercise of the judge’s discretion under 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005). The judge here also gave a sufficient explanation for the decision, see Gall v. United States, 552 U.S. 38, 50 (2007), based primarily on Vasquez-Abarca’s criminal history and the fact that a previous sentence of 57 months for the same crime had not deterred him from committing the crime again. We affirm the sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Nicolas Subdiaz-Osorio v. Robert Humphreys

Case No.: 18-1061

Officials: HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Habeas Corpus – Extradition  

Nicolas Subdiaz‐Osorio stabbed his brother to death during a drunken fight. He attempted to flee the country but was stopped in Arkansas while driving to Mexico. Officers interrogated Subdiaz‐Osorio in Arkansas and during the interview, after discussing the extradition process, Subdiaz‐Osorio asked in Spanish, “How can I do to get an attorney here because I don’t have enough to afford for one?” The state courts were tasked with deciphering what “here” meant.

The state argued that the question referred to the extradition hearing “here” in Arkansas; Subdiaz‐Osorio argued this was an unequivocal invocation of his right to the presence of counsel “here” in the interrogation room. The state trial court found, and the Wisconsin Supreme Court affirmed, that Subdiaz‐Osorio did not unequivocally invoke his Fifth Amendment right to counsel.

The only issue in this habeas corpus appeal is whether that finding was contrary to or based on an unreasonable application of established Supreme Court precedent. See 28 U.S.C. § 2254(d). Our review is deferential and because the Wisconsin Supreme Court’s finding was reasonable, we affirm the district court’s denial of Subdiaz‐Osorio’s petition for writ of habeas corpus.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Shanika Day, et al. v. Franklin Wooten, et al.

Case No.: 19-1930

Officials: EASTERBROOK, MANION, and BARRETT, Circuit Judges.

Focus: Qualified Immunity

Terrell Day died tragically while in police custody on September 26, 2015. This occurred while his hands were cuffed behind his back after he had winded himself during a chase following an apparent shoplifting. The autopsy report concluded his cause of death was a lack of oxygen in his blood, caused in part by his obesity, an underlying heart condition, and restricted breathing due to having his hands cuffed behind his back. In this § 1983 excessive force action brought against the arresting officers, the district court concluded the officers were not entitled to qualified immunity because “reasonable officers would know they were violating an established right by leaving Day’s hands cuffed behind his back after he complained of difficulty breathing.” For the reasons set forth below, we disagree with the district court’s conclusion of law and accordingly reverse.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Charles Williams

Case No.: 19-1358

Officials: BAUER, EASTERBROOK, and ST. EVE, Circuit Judges.

Focus: Plea Withdrawal 

The Supreme Court’s recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), upset what was once a seemingly settled question of federal law. The Courts of Appeals had unanimously concluded that 18 U.S.C. § 922(g), which prohibits several classes of people from possessing a firearm or ammunition, required the government to prove a defendant knowingly possessed a firearm or ammunition, but not that he knew he belonged to one of the prohibited classes. See, e.g., United States v. Lane, 267 F.3d 715, 720 (7th Cir. 2001). The Supreme Court in Rehaif corrected this misinterpretation and held that under 18 U.S.C. §§ 922(g), 924(a)(2), the government must show “that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” 139 S. Ct. at 2194. Charles Williams had already pleaded guilty to possessing a firearm after a felony conviction when the Court issued Rehaif, and his plea reflected the law as it was in this Circuit before that decision. He seeks now, for the first time on direct appeal, to withdraw his plea. We conclude that he bears the burden of showing that his erroneous understanding of the elements of § 922(g) affected his substantial rights—his decision to plead guilty—before he may do so. He has failed to carry that burden, so we affirm the judgment.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Lanard Fitzgerald Hollenquest

Case No.: 2018AP1068-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Ineffective Assistance of Counsel

Lanard Hollenquest appeals a judgment, entered upon his no-contest pleas, convicting him of two counts of causing great bodily harm by operation of a motor vehicle while under the influence of an intoxicant and one count of causing injury by operation of a motor vehicle while under the influence of an intoxicant, as a second offense. He also appeals an order denying his motion for postconviction relief. Hollenquest argues that he should be permitted to withdraw his pleas because: (1) they were not entered knowingly, intelligently and voluntarily; and (2) his attorney provided him with ineffective assistance. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Andre David Nash

Case No.: 2018AP1595-CR

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: Court Error – Burden of Proof

The State appeals an order of the trial court granting Andre David Nash’s motion to suppress identification evidence obtained in a lineup. The State argues that it was Nash’s burden to prove that the lineup was impermissibly suggestive, but that the trial court improperly shifted that burden to the State and effectively required that it prove the lineup was not impermissibly suggestive. Furthermore, the State contends that the trial court failed to address the reliability of the lineup, which is required upon finding that a lineup is impermissibly suggestive.

We agree that the trial court did not properly apply the relevant case law with regard to determining whether a lineup is impermissibly suggestive. Furthermore, we conclude that Nash did not meet his burden of proving impermissible suggestiveness. Therefore, we reverse the order of the trial court and remand this matter with instructions to deny Nash’s suppression motion and continue the proceedings.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Vanidy R. Cross, et al.

Case No.: 2018AP1645

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

Focus: Evidentiary Hearing

Deray J. Shaffale appeals the trial court’s order denying his motion to void a voluntary acknowledgment of paternity (VPA). Shaffale argues that the trial court’s determination that the VPA is not void due to fraud or a mistake of fact is clearly erroneous. He further argues that the trial court erred, as a matter of law, when it determined that it was not in the child’s best interest to void the VPA and that such finding was clearly erroneous.

We conclude that the record is insufficient to support the trial court’s findings that Shaffale’s signing of the VPA was not due to fraud or mistake of fact. We also conclude that the parties failed to adequately develop their arguments that the best interest of the child standard applies to WIS. STAT. § 767.805 (2017-18)—voiding a VPA and is the proper standard to be applied by the trial court. Therefore, we reverse the trial court’s order and remand this matter for an evidentiary hearing on the issues.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kevin A. Taylor

Case No.: 2018AP2094-CR

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

Focus: Sentencing Guidelines – Resentencing

Kevin A. Taylor appeals a judgment entered after he pled guilty to second-degree recklessly endangering safety as a repeat offender and causing soft tissue injury to a police officer while resisting the officer. He also appeals an order denying postconviction relief. He alleges that the circuit court sentenced him based on an improper factor, namely, his challenge to restitution. He seeks resentencing. We reject his contentions and affirm.

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WI Court of Appeals – District III

Case Name: DeEtte Fankhauser, et al. v. Curtis D. Hestad

Case No.: 2019AP110

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Court Error – Damages

Curtis Hestad and Allied Waste Services of North America, LLC, appeal a judgment, entered upon a jury’s verdict, awarding damages to DeEtte and Ernest “Pat” Fankhauser for the destruction of a bridge on the Fankhausers’ property. Hestad and Allied argue the circuit court erred by: (1) dismissing their counterclaims against the Fankhausers; (2) failing to direct a verdict in their favor on the Fankhausers’ negligence claim; (3) failing to reduce the jury’s damages award; (4) limiting Hestad and Allied’s cross-examination of the Fankhausers; (5) failing to exclude the opinion of the Fankhausers’ damages expert; and (6) failing to include separate questions on the special verdict for different categories of damages. We reject each of these arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Adam N. Young

Case No.: 2018AP1467-CR; 2018AP1468-CR

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

Focus: Plea Withdrawal

In these consolidated appeals, Adam Young appeals from judgments convicting him of possessing cocaine with intent to deliver and two counts of delivering cocaine. Young also appeals from orders denying his postconviction motion to withdraw his no contest plea and seeking resentencing. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kenneth J. Heinrich

Case No.: 2018AP2124-CR

Officials: GRAHAM, J.

Focus: Plea Withdrawal

Heinrich pleaded no contest to three misdemeanor counts of bail jumping, and he now seeks to withdraw his plea on grounds that the charges are without a factual basis and multiplicitous. I reject Heinrich’s arguments and affirm the judgment and order entered by the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kody K. Johnson

Case No.: 2019AP1058-CR

Officials: GRAHAM, J.

Focus: Plea Withdrawal

In this appeal, Kody K. Johnson contends that he should be allowed to withdraw his guilty plea to three misdemeanor counts of contempt of court. I affirm the circuit court because I conclude that there was a factual basis for the charges and that Johnson fails to demonstrate that plea withdrawal is necessary to correct a manifest injustice.

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WI Court of Appeals – District IV

Case Name: Portage County v. L.E.

Case No.: 2019AP1841-FT

Officials: FITZPATRICK, P.J.

Focus: Involuntary Commitment – Sufficiency of Evidence

L.E. appeals an order from the Portage County Circuit Court extending her involuntary commitment as requested by Portage County pursuant to WIS. STAT. ch. 51. L.E. contends that there was insufficient evidence to support the circuit court’s order extending her commitment. I affirm the court’s order.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Donavinn D. Coffee

Case No.: 2020 WI 1

Focus: Due Process Violation

This is a review of a per curiam decision of the court of appeals, State v. Coffee, No. 2017AP2292-CR, unpublished slip. op. (Wis. Ct. App. Nov. 6, 2018), affirming the Milwaukee County circuit court’s judgment of conviction and order denying Donavinn D. Coffee’s (“Coffee”) postconviction motion for resentencing. Coffee argues that the circuit court violated his due process rights because the circuit court relied on inaccurate information at sentencing, and that error was not harmless. Neither Coffee nor his counsel objected to the inaccurate information at the sentencing hearing. Rather, Coffee’s first objection to the inaccurate information was in his postconviction motion. The postconviction court concluded that: (1) the State introduced inaccurate information at the sentencing hearing; and (2) the circuit court actually relied on the inaccurate information; but (3) the error was harmless. Thus, the postconviction court denied Coffee’s motion for resentencing. The court of appeals affirmed, but not on the merits of Coffee’s inaccurate information at sentencing claim. Instead, the court of appeals concluded that Coffee forfeited his claim because he failed to object at the sentencing hearing. We now affirm, but we resolve this case on the merits.

A defendant has a constitutional due process right to be sentenced upon accurate information. State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. Coffee’s constitutional due process right was violated. Indeed, both Coffee and the State agree that the circuit court actually relied on inaccurate information when it sentenced Coffee. Accordingly, the issues before this court are: (1) whether Coffee forfeited his ability to later challenge the inaccurate information because he failed to object at the sentencing hearing; and, (2) if Coffee did not forfeit his claim, whether the circuit court’s reliance on the inaccurate information at sentencing was harmless error.

We conclude that the forfeiture rule does not apply to previously unknown, inaccurate information first raised by the State at sentencing. Rather, a postconviction motion is also a timely manner in which to bring that claim. Accordingly, we conclude that Coffee did not forfeit his ability to challenge the inaccurate information at his sentencing. We nonetheless conclude that the circuit court’s reliance on inaccurate information at Coffee’s sentencing was harmless error. Thus, we affirm the court of appeals.

Affirmed

Concur: KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined ¶¶59-63.

Dissent: ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY and DALLET, JJ., joined.

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WI Supreme Court

Case Name: Chris Hinrichs, et al. v. The DOW Chemical Company d/b/a Dow Automotive

Case No.: 2020 WI 2

Focus: Statutory Interpretation – Economic Loss Doctrine

In this case we are asked to address a multitude of issues that arise out of common law and statutory misrepresentation claims. Along the way, we discuss the economic loss doctrine together with its exceptions and examine statutes and their applications. Both parties to this case seek review of aspects of an unpublished, per curiam decision of the court of appeals. The court of appeals affirmed the circuit court’s dismissal of Chris Hinrichs and Autovation Limited’s (collectively, Hinrichs) common law misrepresentation claims against the DOW Chemical Company (Dow) and reversed the circuit court’s dismissal of Hinrichs’ statutory claim made pursuant to Wis. Stat. § 100.18 (2015-16). Hinrichs appeals the dismissal of his common law misrepresentation claims. Specifically, he contends that the court of appeals erred by applying the economic loss doctrine to bar such claims. He argues that the “fraud in the inducement” and “other property” exceptions to the economic loss doctrine apply and that as a result his common law claims should go forward.

Dow cross-petitioned for review of the court of appeals’ determination that Hinrichs’ Wis. Stat. § 100.18 claim survives its motion to dismiss. It asserts first that Hinrichs’ statutory claim is barred by the economic loss doctrine. Next, it contends that Hinrichs is not “the public” within the meaning of § 100.18 and that this court should overrule its previous decision in State v. Automatic Merchs. of Am., Inc., 64 Wis. 2d 659, 221 N.W.2d 683 (1974). Finally, Dow contends that the heightened pleading standard set forth by Wis. Stat. § 802.03(2) for claims of fraud applies to claims made under § 100.18, and that Hinrichs’ complaint fails to meet those heightened standards. In examining Hinrichs’ common law claims, we conclude that the “fraud in the inducement” exception to the economic loss doctrine does not apply to allow Hinrichs’ common law claims to go forward because the alleged misrepresentation is related to the quality and characteristics of the product in question and is thus not extraneous to the contract. We further conclude that the “other property” exception to the economic loss doctrine does not apply to allow Hinrichs’ common law claims to go forward because the JeeTops and adhesive are components of an integrated system.

With regard to Hinrichs’ statutory claim, we conclude first that the economic loss doctrine does not serve as a bar to claims made under Wis. Stat. § 100.18. We conclude second that one person can be “the public” for purposes of Wis. Stat. § 100.18(1) and decline Dow’s invitation to overrule Automatic Merchandisers. The court of appeals correctly determined that dismissal for failure to meet “the public” component of a § 100.18 claim in this case was in error. Finally, we conclude that the heightened pleading standard set forth by Wis. Stat. § 802.03(2) for claims of fraud does not apply to claims made under Wis. Stat. § 100.18 and that Hinrichs’ complaint states a claim under the general pleading standard. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur: REBECCA GRASSL BRADLEY, J., filed an opinion concurring in part and dissenting in part.

Dissent: REBECCA GRASSL BRADLEY, J., filed an opinion concurring in part and dissenting in part.

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