a. Procedural Bar

7th circuit decision, habeas review of summary order of Wisconsin court of appeals, No. 2004AP2242-CR Habeas – Procedural Bar, Sentencing Objection Pomotor’s failure to object to information (the number of beers he allegedly consumed) in his alternative presentence report, worked a procedural default to his susbequent challenge to the sentencing court’s reliance on that information Promotor accurately argues that… Read more

seventh circuit decision; denying rehearing and amending panel decision, Coleman v. Hardy (per curiam , 2/7/11) Habeas – Defaulted Claim – Assertion of Innocence Although Coleman defaulted his ineffective assistance of counsel claim by failing to raise it in state court, his allegation of actual innocence supports a “gateway” evidentiary hearing to determine whether to reach the… Read more

seventh circuit decision Habeas – Procedural Default A federal claim procedurally defaulted in state court works foreclosure of federal habeas review. That the state court engaged plain error review doesn’t mean that the default was overlooked and the merits of the claim reached. Here, the Illinois court refused to reach the merits of Kaczmarek’s Apprendi claim… Read more

7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals Habeas – Procedural Default & No-Merit Report Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack… Read more

Issue: Whether, in federal habeas corpus proceedings, a state law under which a prisoner may be barred from collaterally attacking his conviction when the prisoner “substantially delayed” filing his habeas petition is “inadequate” to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts “consistently” exercised their discretion when applying… Read more

Magwood v. Patterson, USSC No. 09-158, 6/24/10 After a defendant has been resentenced in state court pursuant to relief granted on a federal habeas petition, a second federal habeas petition challenging the new sentence will be treated as a first petition (vs. a “2nd or successive” petition), even if raising grounds that could have been raised… Read more

7th circuit court of appeals decision Issues as Defined by Certificate of Appealability Holmes’s failure to brief on appeal the merits of his constitutional claims did not waive them, because the order granting certificate of appealability “invited the parties only to brief the [threshold] procedural issue” of whether the claims had been defaulted in state… Read more