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Deanna Brookhart, Acting Warden v. Anthony D. Lee, Sr.

Paid petition · United States Court of Appeals for the Seventh Circuit, No. 18-1005 · judgment January 25, 2019


Certiorari denied · June 17, 2019
Pre-decision estimate: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for a petition filed soon after the judgment below, a state or local-government petitioner, and a Seventh Circuit decision below.

Question presented

Respondent claimed on state postconviction review that his counsel was ineffective for failing to investigate and call five witnesses at his state-court trial. To support his claim, he submitted affidavits providing their proposed testimony. The state appellate court accepted the affidavits as true and held there was no reasonable probability that respondent would have been acquitted had the witnesses testified in accordance with their affidavits. On federal habeas review, the district court denied relief, but the Seventh Circuit vacated and remanded for an evidentiary hearing, holding that the state appellate court made an unreasonable determination of fact under 28 U.S.C. § 2254(d)(2) by accepting the affidavits as true rather than conducting a hearing to determine whether the affiants might recant or expand upon their proposed testimony. The question presented is whether a state court makes an unreasonable determination of fact within the meaning of 28 U.S.C. § 2254(d)(2) by assuming the truth of affidavits provided in support of a claim of ineffective assistance of counsel.

Counsel of record

For petitioner
Michael Marc Glick

For respondent
Bradley M. Yusim
Jenner and Block LLP

Case

Conference history
Distributed for 2 conferences

Amicus briefs
1 cert-stage

Proceedings

  1. Jun 17 2019
    Petition DENIED.
  2. May 28 2019
    DISTRIBUTED for Conference of 6/13/2019.
  3. May 23 2019
    Reply of petitioner Deanna Brookhart filed.
  4. May 13 2019
    Certificate of Service and Certificate of Service Word Count filed with respect to amicus curiae of Criminal Justice Legal Foundation.
  5. May 09 2019
    Brief of respondent Anthony D. Lee, Sr. in opposition filed.
  6. May 07 2019
    Brief amicus curiae of Criminal Justice Legal Foundation filed.
  7. Apr 09 2019
    Response Requested. (Due May 9, 2019)
  8. Apr 02 2019
    DISTRIBUTED for Conference of 4/18/2019.
  9. Mar 15 2019
    Waiver of right of respondent Anthony D. Lee, Sr. to respond filed.
  10. Mar 12 2019
    Petition for a writ of certiorari filed. (Response due April 15, 2019)