court of appeals decision (1-judge; not for publication); pro se; Resp. Br. Custody Requirement, sec. 974.06 ¶7 However, Olson is barred from collaterally attacking his criminal conviction under Wis. Stat. § 974.06 because he is no longer “‘in custody under sentence of a court.’” See State v. Theoharopoulos, 72 Wis. 2d 327, 329, 240 N.W.2d 635… Read more
5. 974.06, collateral attack
court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br. Serial Litigation Bar Collins’ § 974.06 motion is procedurally barred by his failure to allege a “sufficient reason” for not previously raising issues as part of his prior, no-merit appeal, ¶1. Bit more interesting than that, in the following sense: the court… Read more
State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray Prosecutorial Misconduct – Closing Argument Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling: ¶1 State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis… Read more
court of appeals decision; for Jeffrey A.W.: Hans P. Koesser Resp Br; Reply Counsel – Adequacy of Investigation Attempt to demonstrate absence of herpes in defendant—an issue central to this sexual assault prosecution—was, although failure, not product of deficient performance, ¶12: There is no question that trial counsel’s investigation yielded the wrong information. But that… Read more
State v. Jeffrey A.W., 2010 WI App 29; for Jeffrey A.W.: Hans P. Koesser Adequacy of Counsel Investigation Counsel’s attempt to demonstrate the absence of herpes in the defendant—an issue central to this sexual assault prosecution—was, although a failure, not the product of deficient performance. ¶12 There is no question that trial counsel’s investigation yielded… Read more
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09 Pro se Issue/Holding: Because sufficiency of evidence to sustain the conviction is a matter of constitutional dimension, it may be raised via § 974.06 motion, ¶¶25-30.The court’s discussion also indicates, at least implicitly, that the State v. Obea S. Hayes, 2004 WI 80… Read more
State v. David R. Kaster, 2006 WI App 72, PFR filed 4/26/06; prior appeal: 2003 WI App 105 For Kaster: Robert R. Kaster Issue/Holding: ¶9 Kaster next argues that the evidence was legally insufficient to sustain the disorderly conduct charge. …. Kaster has not demonstrated a “sufficient reason” under § 974.06(4) to overcome the fact… Read more
State v. Thomas A. Mikulance, 2006 WI App 69 Pro se Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies… Read more
