Can a common practice in criminal defense trigger constitutional protections when it’s suddenly changed?

Less than a year after creating a narrow right to make a federal ineffective assistance of counsel claim in a post-conviction proceeding despite a procedural default in state court, the justices of the U.S. Supreme Court tried to carve out the contours of that ruling during oral arguments in Trevino v. Thaler.

10-3550 Woolley v. Rednour

11-3228 Ray v. Clements

In a case that could help establish the limits of the U.S. Supreme Court’s ruling last term in Martinez v. Ryan, which established defendants’ narrow right to the effective assistance of counsel in a post-conviction proceeding, the Court has agreed to decide whether a state court procedural default prevents a federal habeas court from hearing a post-conviction ineffective assistance claim.

2011AP2069 State ex rel. Blunt v. Smith

11-2246 Rivas-Melendrez v. Napolitano

2009AP746-W & 2010AP1064 State v. Washington

10-9995 Wood v. Milyard

2011AP402 State ex rel. Walker v. Huibregtse, et al.

A federal court erred in granting habeas corpus to a defendant where the state’s witness was unavailable, because under the Antiterrorism and Effective Death Penalty Act a federal court cannot overturn a state court’s decision that the state took reasonable steps to find a witness merely because the federal court identified additional steps that might have been taken.

10-2432 Purvis v. U.S.

Despite evidence that the police withheld exculpatory evidence and witnesses were not truthful at trial, a state prisoner convicted in 1994 of sexual assault and attempted homicide will not get a new trial.

If a criminal defense attorney uses his peremptory challenges to exclude potential jurors because of race or gender, he violates the Equal Protection Clause, the Rules of Professional Responsibility and provides ineffective assistance of counsel.

Criminal Procedure Habeas corpus

Habeas Corpus Ineffective assistance The State of Wisconsin’s motion to stay the mandate is denied. “Harrington addresses the situation in which a state-court decision ‘is unaccompanied by an explanation.’ Here, the state appellate court issued an opinion and wrote: ‘We do not address whether counsel’s performance was deficient because we conclude that, even assuming deficient performance, Sussman cannot show prejudice.’ ...

Habeas corpus Appointed counsel When an attorney believes that a claim not certified for appeal is arguable, counsel should move the court to expand the certificate to include the claim. “Counsel has no obligation to argue claims that are not certified for appeal. At least one court, if not two (as when this court has issued the certificate or has ...

In two decisions this year, the U.S. Supreme Court made it tougher for state prisoners to obtain habeas corpus relief in federal court.

In an editorial in the Sunday New York Times, April 17, 2011, entitled "Justice, Too Much and Too Expensive," two law professors from Indiana and Vanderbilt University present a radical proposal that federal court review of state court convictions under the writ of habeas corpus should be even more strictly limited than it currently is -- to just death penalty cases and cases in which the prisoner can produce persuasive new evidence of his or her innocence.

Habeas Corpus Ineffective assistance It was not unreasonable for Wisconsin courts to conclude that an expert witness would not have given different testimony if presented with all the facts. “We cannot say that it was ‘unreasonable’ for the Wisconsin court to infer from the evidence presented to it that Drom would not have changed his testimony had he read the ...

United States Court of Appeals CRIMINAL OPINION Habeas Corpus Confrontation Clause; ineffective assistance It was unreasonable for the state courts to conclude that a defendant charged with sexual assault of a child was not prejudiced by his attorney’s failure to introduce evidence that the complainant had previously made false accusations of sexual assault. “We agree that this evidence is probative ...

United States Court of Appeals CRIMINAL OPINIONS Habeas Corpus Confrontation Clause Where a state court judge admitted double hearsay against a defendant as substantive evidence to prove the defendants’ guilt, his federal habeas corpus petition should have been granted. “To think that any amount of instruction would enable a jury to disregard the damning substance of an out-of-court statement like ...

In January, the U.S. Supreme Court accepted review of a case to decide whether a state prisoner can obtain habeas corpus relief in federal court, after he went to trial because his attorney gave him deficient advice during plea bargaining. In the meantime, the 7th Circuit is assuming the answer is “yes.” On Monday, it held that a Wisconsin man ...

CRIMINAL OPINIONS Habeas Corpus Ineffective assistance; plea bargaining Where a state prisoner claims he would have accepted a plea agreement if his attorney had correctly conveyed it to him, and no evidentiary hearing was held, the district court should have held a hearing on the prisoner’s ineffective assistance claim. “When a petitioner fails to develop the factual basis of a ...

Habeas Corpus AEDPA A motion to reduce a sentence under state law is an application for “collateral review” that triggers AEDPA’s tolling provision. The parties agree that the motion is not part of the direct review process, and both this Court and lower federal courts have described a motion to reduce sentence under old Federal Rule 35 as invoking a ...

Habeas Corpus Ineffective assistance of counsel Where a defendant’s attorney had no strategic reason for not interviewing potential witnesses, his representation was deficient. “In this case, a review of the record shows that the petitioner’s trial counsel told the petitioner that he was not going to call Angeal Toliver to testify because ‘they wouldn’t believe her because she was the ...

Habeas Corpus Sentence credit Christopher L. Shelton appeals from an order of the circuit court denying his petition for a writ of habeas corpus. Shelton was convicted of two crimes and given consecutive sentences. Shelton argues that because he was unlawfully detained for 143 days after the mandatory release date of his first sentence, he should receive credit on his ...

Habeas Corpus Sentence credit Christopher L. Shelton appeals from an order of the circuit court denying his petition for a writ of habeas corpus. Shelton was convicted of two crimes and given consecutive sentences. Shelton argues that because he was unlawfully detained for 143 days after the mandatory release date of his first sentence, he should receive credit on his ...

Habeas Corpus Standard of review 28 U.S.C. 2254(d) applies to a habeas corpus petition, even though the state court’s order was unaccompanied by an opinion explaining the court’s reasoning. By its terms, §2254(d) bars relitigation of a claim “adjudicated on the merits” in state court unless, among other exceptions, the earlier state-court “decision” involved “an unreasonable application” of “clearly established ...

Habeas Corpus Ineffective assistance of counsel Under 28 U. S. C. 2254(d), federal habeas relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state-court decision denying relief involves “an unreasonable application” of “clearly established Federal law, as determined by” this Court. The relevant federal law is ...