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

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Marzie Bastani v. Wells Fargo Bank, N.A.,

Case No.: 20-1373

Officials: Easterbrook, Sykes, and St. Eve, Circuit Judges.

Focus: Bankruptcy – Automatic Stay

After filing a petition under Chapter 13 of the Bankruptcy Code, Marzie Bastani asked the judge to stay a foreclosure proceeding pending in state court. The judge’s aid was essential, because Bastani’s previous bankruptcy had been dismissed less than a year earlier, and 11 U.S.C. §362(c)(3)(C)(i)(II) treats this timing as creating a presumption that the new filing is not in good faith. This means that the automatic stay ends 30 days after the new proceedings begins.  11 U.S.C. §362(c)(3)(B).

An antecedent issue requires attention, however. Bastani did not pay the filing fee for an appeal but sought leave to proceed in forma pauperis under 28 U.S.C. §1915. Wells Fargo Bank, her mortgage lender, opposes that motion, contending that 28 U.S.C. §1930 forbids IFP status in Chapter 13 appeals. By trying to achieve a principal benefit of Chapter 13 (keeping her home) without the detriment (paying her debts), Bastani has demonstrated that she is not entitled to the relief she seeks.

The motion for leave to proceed on appeal in forma pauperis is denied, and the decision of the district court is summarily affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Alnoraindus Burton v. Partha Ghosh, et al.,

Case No.: 19-1360

Officials: WOOD, Chief Judge, and HAMILTON and SCUDDER, Circuit Judges.

Focus: Amended Complaint

Almost seven years into this lawsuit, after discovery had closed and with a summary judgment deadline looming, defendants raised the affirmative defense of res judicata for the first time, in an unexpected motion to dismiss an amended complaint. When plaintiff responded that the defense had been waived or forfeited, defendants argued that our opinion in Massey v. Helman, 196 F.3d 727 (7^th Cir. 1999), requires a district court to allow any and all new affirmative defenses whenever a plaintiff amends a complaint in any way. The district court agreed and granted defendants’ motion to dismiss.

We reverse and remand. The standard for amending pleadings under Federal Rules of Civil Procedure 8(c) and 15 continues to govern the raising of new affirmative defenses even when an amended complaint is filed. Massey held that a defendant is entitled to add a new affirmative defense prompted by an amended complaint that changes the scope of the case in a relevant way. Massey does not, however, require a district court to allow any and all new defenses in response to any amendment to a complaint, without regard for the substance of the amendment and its relationship to the new defenses. Rather, a district court must exercise its sound discretion under Rules 8 and 15 in deciding whether to allow the late addition of a new affirmative defense. In this case, the late amendment to the complaint was minor and did not authorize a new res judicata defense that had been waived or forfeited years earlier.

Reversed and remanded

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7^th Circuit Court of Appeals

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

Case No.: 18-3713

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

Focus: Sentencing Guidelines

Brian Carter pleaded guilty to possessing a firearm as a felon, see 18 U.S.C. § 922(g), after police officers arrested him and found a stolen handgun in his possession. At sentencing, the district court calculated his Sentencing Guideline range based on a finding that he had previously sustained at least two felony convictions for “crimes of violence.” U.S.S.G. § 2K2.1(a)(2). The court imposed a sentence of 105 months in prison, at the top of the resulting guideline range. Carter appeals, arguing that the district court erred in classifying two of his prior convictions as crimes of violence.

We affirm. Carter had at least two prior felony convictions that qualify as crimes of violence under the categorical approach required under the Guidelines. In light of the discussion that follows, we also remind district courts that the classification of prior convictions under the Sentencing Guidelines can produce abstract disputes that bear little connection to the purposes of sentencing. As the Sentencing Commission itself has recognized since the Sentencing Guidelines were first adopted, district judges may and should use their sound discretion to sentence under 18 U.S.C. § 3553(a) on the basis of reliable information about the defendant’s criminal history even where strict categorical classification of a prior conviction might produce a different guideline sentencing range.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Harry O’Neal v. James Reilly, et al.,

Case No.: 19-2981

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

Focus: Amended Complaint

Harry O’Neal was convicted of aggravated battery of a police officer after an altercation during a traffic stop. While incarcerated and while his criminal conviction was pending on direct appeal, O’Neal filed a pro se lawsuit that asserted § 1983 claims against the police officers who had arrested him. Under Heck v. Humphrey, however, O’Neal’s § 1983 suit was barred unless his conviction was reversed or expunged. 512 U.S. 477, 486–87 (1994). Heck-barred suits are usually stayed or dismissed without prejudice, but O’Neal’s suit took a different course. After he failed to comply with court-ordered briefing deadlines, the district court issued an order directing O’Neal to show cause why his case should not be dismissed for want of prosecution. When O’Neal didn’t respond, the district court dismissed his claims with prejudice for failure to prosecute. See FED.R. CIV.P. 41(b).

Several months later, O’Neal’s conviction was overturned on appeal, lifting the Heck bar to his § 1983 suit. Another ten months after that, O’Neal went back to the district court. This time represented by counsel, he filed a “Motion to Reinstate the Case and for Leave to File an Amended Complaint Pursuant to Fed. R. Civ. P. 15.” His motion nowhere mentioned Federal Rule of Civil Procedure 60(b), which is the procedural mechanism for obtaining relief from a judgment. But the defendants raised Rule 60(b) in their response to the motion, maintaining that O’Neal was not entitled to relief under that rule. This argument caught O’Neal’s attention, and in his reply brief, he attempted to articulate why Rule 60(b) relief was warranted.

The district court denied O’Neal’s Rule 15 motion, explaining that it was procedurally improper because he could not file an amended complaint in a terminated case. O’Neal’s only procedural option was the one that the defendants had anticipated: securing relief from the judgment under Rule 60(b). But O’Neal didn’t even mention Rule 60(b) until his reply brief, so the district court held that the argument was waived. It observed, though, that O’Neal wouldn’t have been able to satisfy the requirements of Rule 60(b) anyway.

On appeal, O’Neal argues that the district court was wrong to treat his Rule 60(b) argument as waived. We review a finding of waiver de novo, Baker v. Lindgren, 856 F.3d 498, 506 (7th Cir. 2017), and we agree with the district court: O’Neal waived this argument. His motion invoked Rule 15, not Rule 60. It never mentioned Rule 60(b), referred to any of the specific grounds for relief under Rule 60(b), or cited any cases applying Rule 60(b)—in fact, the motion cited no cases at all. It’s not a close call to conclude that O’Neal failed to adequately raise or develop a Rule 60(b) argument in his initial motion. He didn’t invoke that rule until his reply brief, and we have repeatedly recognized that district courts are entitled to treat an argument raised for the first time in a reply brief as waived. See, e.g., Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009); Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir. 2009).

In sum, the district court correctly concluded that O’Neal waived any argument that he may have had under Rule 60(b). And because the case had been terminated on the merits, the district court was right to deny his Rule 15 motion for leave to file an amended complaint. The judgment is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Erin Johnson v. Enhanced Recovery Company, LLC,

Case No.: 19-1210; 19-1334

Officials: BAUER, ROVNER, and SYKES, Circuit Judges.

Focus: FDCPA Violation

Erin Johnson filed this putative class action against Enhanced Recovery Company, LLC (ERC), alleging that it sent her a misleading collection letter in violation of the Fair Debt Collection Practices Act (“FDCPA”). 15 U.S.C. §§ 1692‐1692p. ERC moved to dismiss Johnson’s claim on the grounds that no reasonable consumer could have been misled by its letter. The district court denied ERC’s motion and certified a class composed of all individuals in Indiana who had received a collection letter like Johnson’s from ERC between July 2016 and August 2017. See Fed. R. Civ. P. 23(a) and (b)(3) (describing class certification requirements). On the parties’ cross motions for summary judgment, the district court entered judgment for ERC. Johnson appeals, and ERC cross appeals from the denial of its motion to dismiss Johnson’s complaint under Federal Rule of Civil Procedure 12(b)(6). Because Johnson failed to present any evidence beyond her own opinion that ERC’s letter was misleading, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Shawn A. Lee

Case No.: 19-1300

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

Focus: Amended Opinion

Defendant-Appellant filed a petition for rehearing and rehearing en banc on April 1, 2020. No judge in regular active service has requested a vote on the petition for rehearing en banc, and all of the judges on the panel have voted to deny rehearing. Judge St. Eve called for an answer regarding the non-delegation issue and no judge in active service voted to hear the issue en banc. Petition for rehearing is therefore denied.

Petition denied

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7^th Circuit Court of Appeals

Case Name: Cook County, Illinois, et al, v. Chad F. Wolf, et al.,

Case No.: 19-3169

Officials: WOOD, Chief Judge, and ROVNER and BARRETT, Circuit Judges.

Focus: Abuse of Discretion – Preliminary Injunction

Like most people, immigrants to the United States would like greater prosperity for themselves and their families. Nonetheless, it can take time to achieve the American Dream, and the path is not always smooth. Recognizing this, Congress has chosen to make immigrants eligible for various public benefits; state and local governments have done the same. Those benefits include subsidized health insurance, supplemental nutrition benefits, and housing assistance. Historically, with limited exceptions, temporary receipt of these supplemental benefits did not jeopardize an immigrant’s chances of one day adjusting his status to that of a legal permanent resident or a citizen.

Recently, however, the Department of Homeland Security (DHS) issued a new rule designed to prevent immigrants whom the Executive Branch deems likely to receive public assistance in any amount, at any point in the future, from entering the country or adjusting their immigration status. The Rule purports to implement the “public-charge” provision in the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4). States, cities, and nonprofit groups across the country have filed suits seeking to overturn the Rule.

Cook County, Illinois, and the Illinois Coalition for Immigrant and Refugee Rights, Inc. (ICIRR) brought one of those cases in the Northern District of Illinois. They immediately sought a preliminary injunction against the Rule pending the outcome of the litigation. Finding that the criteria for interim relief were satisfied, the district court granted their motion. We conclude that at least Cook County adequately established its right to bring its claim and that the district court did not abuse its discretion by granting preliminary injunctive relief. We therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Brian Hughes v. Southwest Airlines Company

Case No.: 19-3001

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

Focus: Sufficiency of Evidence

Brian Hughes brought a purported class action suit against Southwest Airlines for breach of contract after it canceled his flight to Chicago because it lacked sufficient deicing solution at Midway Airport. The district court dismissed the complaint for failure to state a claim and because the contract barred the claimed damages. Hughes appealed. Because Hughes failed to adequately identify any breach, we now affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Lawrence Manyfield, Sr.,

Case No.: 19-2096

Officials: EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.

Focus: Sentencing – Supervised Release

After Lawrence Manyfield admitted several violations of his supervised release, the district court revoked his term of supervision and sentenced him to twenty-four months in prison followed by a lifetime term of supervised release. The parties agree on appeal that the court neither gave adequate notice of the conditions of supervision (many of which we have deemed vague) nor sufficiently explained its reasons for imposing them. They disagree, however, about the proper scope of the remand. We conclude that the court properly justified the prison sentence and term of supervised release and, therefore, remand only for further consideration of the release conditions.

Vacated in part, remanded in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Terrance Brasher

Case No.: 18-1997

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

Focus: Jury Selection

A grand jury charged Terrance Brasher and 14 other defendants with engaging in a conspiracy to distribute narcotics in and around the Southern District of Indiana. See 21 U.S.C. §§ 846, 841(a)(1). Only Brasher proceeded to trial, and after hearing the government’s evidence, a jury found him guilty. The district court ordered him to serve a term of life in prison. See 21 U.S.C. § 841(b)(1)(A) (2016). Brasher appeals, asserting that there was a material variance between the conspiracy as charged and as proven at trial, that the government’s proof at trial constructively amended the indictment, that the government improperly exercised its peremptory challenges to exclude two African American venire members during the jury selection process, that the prosecutor made prejudicial remarks in closing argument, that the government made improper use of evidence obtained via court-authorized wiretaps, and that the district court erroneously precluded him from challenging one of the prior narcotics convictions which triggered his mandatory term of life imprisonment. Finding no merit to any of these arguments, we affirm Brasher’s conviction and sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kevin Harer, et al., Shane Casey, et al.,

Case No.: 19-3334

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

Focus: 14^th Amendment Violation – Access to Courts Claim

Samantha Harer died from a gunshot wound to the head. The coroner concluded Samantha committed suicide. Samantha’s parents, Kevin and Heather Harer, reject this finding. The Harers claim Samantha’s boyfriend, Felipe Flores—a police officer for the town of Crest Hill, Illinois—murdered Samantha during an argument at her home in neighboring Channahon, Illinois.

The Harers sued Flores and Crest Hill in federal court: Flores for wrongful death (among other torts) and Crest Hill for its alleged unconstitutional practice of concealing officers’ misconduct, which the Harers allege emboldened Flores to kill Samantha. The Harers also sued the Town of Channahon and its Chief of Police Shane Casey, its Deputy Chief of Police Adam Bogart, and Detective Andrew McClellan (collectively, the “Channahon defendants”), asserting these defendants denied the Harers their constitutional right of access to court when they engaged in a cover-up to protect Flores.

The Channahon defendants moved to dismiss the access claim, arguing they did not prevent the Harers from initiating a wrongful death lawsuit against Flores within the statute of limitations. The district court denied the motion, holding that the Channahon defendants still frustrated their judicial access by delaying the Harers’ suit and costing them money. Additionally, the court ruled that clearly established law prohibited the officers’ conduct, so qualified immunity did not shield the officers from suit.

We reverse the court’s judgment because the Harers have access to remedies—and therefore access to court—in their pending wrongful death suit. Accordingly, the Harers’ access claim (Count II) is not ripe for review, and we remand with instructions to dismiss it without prejudice.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jonathan Eymann, et al.,

Case No.: 19-2090; 19-2101

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

Focus: Court Error – Motion to Suppress Evidence Denied

Jonathan Eymann and his uncle, Gary Lyons, were flying from California to Pennsylvania when they stopped around midnight at a small public airport in Litchfield, Illinois. Suspecting drug trafficking, law enforcement officers followed the pair to a nearby hotel and confronted them in the hotel’s parking lot. The encounter ended in their arrests and the discovery of 65 pounds of marijuana in their airplane.

Asserting that the officers had violated the Fourth and Fifth Amendments in a number of ways, Eymann and Lyons filed a joint motion to suppress the evidence against them. After the district court denied the motion, Eymann conditionally pleaded guilty to conspiracy to distribute marijuana, reserving the right to appeal the district court’s ruling on their suppression motion. Lyons proceeded to trial, where a jury convicted him of conspiracy to distribute marijuana and aiding and abetting the possession of marijuana with the intent to distribute. Both men now appeal the district court’s denial of their motion to suppress. Finding no reason to set aside either the district court’s factual findings or its ultimate conclusion, we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Corlis Daniels, et al. v. Nathaniel Alloway, et al.,

Case No.: 2018AP1971

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

Focus: Court Error – Service of Process

Nathaniel Alloway appeals from an order denying his motion to vacate a default judgment entered after his failure to appear at trial. Alloway argues he did not have notice of the trial date, and the circuit court therefore erred by entering the judgment and then refusing to reopen it. We reject his arguments and affirm.

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WI Court of Appeals – District III

Case Name: Garrett G. Ripley v. Laura S. Ripley

Case No.: 2018AP2025

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

Focus: Abuse of Discretion – Child Support

Laura Ripley appeals a judgment of divorce containing no award of child support, which was entered following a denial of Laura’s motion for reconsideration on the child support issue. Laura argues the circuit court lacked authority to deviate from the percentage standard for child support established by statute and the administrative code because Garrett Ripley did not request a deviation. She also argues the court did not sufficiently explain why it was deviating from the percentage standard. Finally, she argues the court erred in some fashion when addressing her request for variable expenses during the reconsideration proceedings. We reject Laura’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jamie L. Nicolai

Case No.: 2018AP2155-CR; 2018AP2156-CR

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

Focus: Abuse of Discretion – Evidentiary Ruling

Jamie L. Nicolai, pro se, appeals from judgments of conviction, following a jury trial, of one count of second-degree recklessly endangering safety, one count of substantial battery intending bodily harm with the use of a dangerous weapon, one count of disorderly conduct, and one count of felony bail jumping.

we conclude that Nicolai is not entitled to a new trial in the interest of justice. This court may in its discretion set aside a verdict and order a new trial in the interests of justice where “it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried[.]” See WIS. STAT. § 752.35. We agree with the State that “Nicolai has failed to demonstrate that the [trial] court erred in its evidentiary rulings, there is no articulated argument that justice has been miscarried, and the controversy was fully tried here, leading to unanimous guilty verdicts for all charges.”

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michelle A. Greenwood

Case No.: 2019AP248-CR

Officials: HRUZ, J.

Focus: Unlawful-stop Claim – Suppression of Evidence

Michelle Greenwood appeals a judgment, entered upon her guilty plea, convicting her of operating a motor vehicle while intoxicated (OWI) with a minor in the vehicle. Greenwood argues the circuit court erred by denying her motion to suppress evidence from a traffic stop, contending the police officer discovered that evidence only after he unlawfully extended the stop. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Booker Telefaro Shipp, III

Case No.: 2019AP504

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

Focus: Ineffective Assistance of Counsel

Booker Telefaro Shipp, III, pro se, appeals from an order of the circuit court that denied his motion for postconviction relief without a hearing. Shipp alleges that his postconviction attorney was ineffective for failing to challenge trial counsel’s performance on three issues. We agree with the circuit court that none of the issues Shipp raises are clearly stronger than issues that were previously raised, so we affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Duanne D. Townsend

Case No.: 2019AP787

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

Focus: Ineffective Assistance of Counsel

Duanne D. Townsend appeals from an order of the circuit court denying his WIS. STAT. § 974.06 (2017-18)1 motion without a hearing. In his motion, Townsend argued that postconviction counsel for his direct appeal was ineffective in the presentation of Townsend’s claims that his trial counsel was ineffective in multiple ways. One of those claims relating to trial counsel’s ineffective assistance was that counsel conceded Townsend’s guilt and abandoned self-defense as a theory during his trial. Townsend renewed that claim in his WIS. STAT. § 974.06 motion, asserting that pursuant to the recently decided case McCoy v. Louisiana, 138 S. Ct. 1500 (2018), counsel’s alleged concession was a structural error that entitles him to a new trial.

Additionally, in his current motion Townsend sought postconviction discovery of the medical records of one of the victims in this case. He argued that those records would further support his theory of self-defense. The circuit court rejected all of Townsend’s claims. The court ruled that McCoy was inapposite in this case, and also found that Townsend’s claims in his WIS. STAT. § 974.06 motion were procedurally barred. Moreover, the court reviewed Townsend’s claims on the merits, concluding that his trial counsel was not ineffective, and thus Townsend’s current claim that postconviction counsel was ineffective necessarily failed. We agree that McCoy is inapposite based on the facts of this case. However, we conclude that with regard to his claim of ineffective assistance of postconviction counsel, Townsend has pled sufficient facts in his WIS. STAT. § 974.06 motion and is therefore entitled to a postconviction evidentiary hearing.

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WI Court of Appeals – District III

Case Name: Uneeda Rest, LLC, v. Rick Hexum, et al.,

Case No.: 2019AP1357

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

Focus: Insurance Claim – Coverage

Jake Westerhof and Uneeda Rest, LLC, appeal a summary judgment granted in favor of Wisconsin Mutual Insurance Company. The circuit court concluded insurance policies that Wisconsin Mutual had issued to Westerhof did not provide coverage for Rick Hexum’s claims against Westerhof and Uneeda Rest. We agree that Wisconsin Mutual’s policies do not provide coverage for Hexum’s claims, and we therefore affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Matthew T. Bohmann

Case No.: 2018AP2391-CR

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

Focus: Court Error – Admittance of Evidence

Matthew T. Bohmann appeals from a judgment convicting him of two counts of first-degree sexual assault of a child and one count of repeated sexual assault of the same child. He contends that the circuit court erred by denying his request to admit evidence of his brother’s sexual conduct towards the victims. He further contends that the charging periods of the offenses were unconstitutionally vague. We reject Bohmann’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: Waukesha County Health and Human Services v. S.S.

Case No.: 2020AP592

Officials: REILLY, P.J.

Focus: Termination of Parental Rights

S.S. appeals from an order terminating her parental rights to A.W., arguing that the circuit court erred when it granted Waukesha County Health and Human Services’ (the department) motion for default judgment and denied S.S. the right to a jury trial at the grounds phase of the termination of parental rights (TPR) proceeding. S.S. argues that WIS. STAT. §§ 805.03 and 885.11 do not give the court the authority to default a party without finding a failure to comply with a court order. As we conclude that a circuit court may default a party for egregious conduct and the record before us support’s the circuit court’s finding of egregiousness, the circuit court did not erroneously exercise its discretion. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jerry L. Anderson

Case No.: 2019AP668-CR

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Postconviction Relief – Procedurally Barred Claims

Jerry Anderson, pro se, appeals a circuit court order denying his motions for postconviction relief. The issue on appeal is whether Anderson’s claims are procedurally barred. We conclude that they are barred. Therefore, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael O. Statler

Case No.: 2019AP764-CR; 2019765-CR; 2019AP766-CR

Officials: Fitzpatrick, P.J., Kloppenburg and Graham, JJ.

Focus: Jury Instructions

Michael Statler appeals judgments of conviction of the Rock County Circuit Court for eight counts of armed robbery as a party to a crime. See WIS. STAT. §§ 943.32(2) and 939.05 (2017-18).  Statler asserts that the circuit court erred, and he was materially prejudiced, because the court instructed the jury that the court had taken judicial notice of certain facts germane to the testimony of a witness. Specifically, Statler argues that the circuit court erred because the court instructed the jury that, when a defendant is given probation as a sentence for a crime, and the defendant is revoked from probation, the defendant returns to court for sentencing and the defendant can potentially be sentenced up to the maximum statutory penalty for that crime. We conclude that the circuit court did not err in giving the judicial notice instruction and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin ex rel. Milton Eugene Warren

Case No.: 2020 WI 55

Focus: Court Error – Postconviction Relief

The petitioner, Milton Eugene Warren, seeks review of an unpublished order of the court of appeals denying his petition for habeas corpus. He filed the habeas petition after first unsuccessfully seeking Wis. Stat. § 974.06 (2017-18) postconviction relief in the circuit court. In both the habeas petition and the postconviction motion, Warren averred ineffective assistance of counsel for alleged errors taking place after conviction by the failure to raise a claim that his trial counsel was ineffective.

Presented with Warren’s postconviction motion, the circuit court concluded that Warren had sought relief in the wrong forum. Pursuant to State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, it determined that rather than filing his postconviction motion in the circuit court, Warren should instead have filed a habeas petition in the court of appeals. Following the circuit court’s direction, Warren subsequently filed a habeas petition in the court of appeals. The court of appeals denied the petition, concluding that Warren did not follow the correct procedural mechanism. Specifically, it determined that he should have filed an appeal of the circuit court’s denial of his postconviction motion rather than a habeas petition.

Warren contends that the circuit court and court of appeals decisions leave him effectively without a forum for resolution of his ineffective assistance of counsel claim and that the proper forum for the claim is in the circuit court. Further, he asserts, and the State agrees, that language from Starks should be withdrawn because it contradicts the established framework for determining the proper forum for his claim.

We reaffirm that the Knight/Rothering framework remains the correct methodology for determining the appropriate forum for a criminal defendant to file a claim relating to the alleged ineffectiveness of counsel after conviction. Both Knight and Rothering premised their decisions on the forum in which the alleged ineffectiveness took place. Applying this framework, we conclude that the circuit court is the appropriate forum for Warren’s claim that postconviction counsel was ineffective for failing to assert an ineffective trial counsel claim. Further, we withdraw paragraph four of Starks because it is contradictory to this conclusion. Additionally, to the extent language in paragraphs 30-31, 34-35, and throughout Starks contradicts our conclusion in this case, it is also withdrawn. Finally, we also modify paragraph 41 of Starks.

Accordingly, we reverse the decision of the court of appeals and remand to the court of appeals with directions.

Reversed and remanded

Concur:

Dissent:

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WI Supreme Court

Case Name: Quick Charge Kiosk LL, et al. v. Josh Kaul

Case No.: 2020 WI 54

Focus: Statutory Interpretation – Gambling Machine

Quick Charge Kiosk LLC is the commercial owner of kiosks that enable customers to pay for an opportunity to win (or lose) money through a video game based on chance. After its kiosks were deemed illegal gambling machines by the attorney general and law enforcement, Quick Charge and its owner brought this declaratory judgment action.

Quick Charge asserts that its kiosks are not gambling machines because they do not satisfy the consideration requirement under the gambling machine definition in Wis. Stat. § 945.01(3) (2017-18). Quick Charge points to the definition of consideration for lotteries under § 945.01(5) and an exception from that definition for “in-pack chance promotions” under Wis. Stat. § 100.16(2). This same definition and exception should apply to gambling machines, Quick Charge contends, suggesting its kiosks are legally compliant in-pack chance promotions. Further, Quick Charge argues there is no consideration even if the ordinary legal definition of consideration applies because a free play option is available. We disagree with these arguments.

While the lottery statute expressly excludes in-pack chance promotions from its definition of consideration, the gambling machine statute does not. The logical implication of this textual distinction is that meeting the requirements of an in-pack chance promotion does not exempt a mechanical device from the consequences of being an illegal gambling machine. Moreover, consideration is present here because the kiosks can be used exactly like a standard gambling machine notwithstanding a free play option also being available. That is, customers can pay for an opportunity to obtain something of value by chance. We therefore hold that Quick Charge’s kiosks meet the definition of a gambling machine under Wis. Stat. § 945.01(3).

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Stanley Whitmore Davis

Case No.: 2020 WI 48

Focus: Attorney Disciplinary Hearing

We review Referee John B. Murphy’s recommendation that Attorney Stanley Whitmore Davis be declared in default and his license to practice law in Wisconsin suspended for one year for professional misconduct. The referee also recommended that Attorney Davis pay $2,500 in restitution to G.P. and $3,750 to the Wisconsin Lawyers’ Fund for Client Protection (“the Fund”), and that he pay the full costs of the proceeding, which are $2,601.62 as of January 15, 2020.

We declare Attorney Davis to be in default. We agree with the referee that the record establishes that Attorney Davis has committed 36 counts of professional misconduct, warranting a one-year suspension of his license to practice law in Wisconsin. We also agree that Attorney Davis should pay restitution to G.P. and to the Fund and we direct him to pay the full costs of this proceeding.

License suspended

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Arthur J. Lomax v. Christina Ortiz-Marquez, et al.,

Case No.: 18-8369

Focus: Statutory Interpretation – PLRA

To help staunch a “flood of nonmeritorious” prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule. Jones v. Bock, 549 U. S. 199, 203 (2007). That rule generally prevents a prisoner from bringing suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three or more prior suits “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” 28 U. S. C. §1915(g). Today we address whether a suit dismissed for failure to state a claim counts as a strike when the dismissal was without prejudice. We conclude that it does: The text of Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without.

Affirmed

Dissenting:

Concurring:

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