Henak Law Office, S.C.
  Criminal Appeals, Post-Conviction Remedies, Federal Habeas Corpus

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316 N. Milwaukee St., #535
Milwaukee, WI 53202
Phone: (414)283-9300
Fax: (414)283-9400
Experience. Creativity. Integrity.
PUBLISHED DECISIONS
Decisions - Robert R. Henak


Attorney Robert Henak has represented people charged with crimes on post-conviction motions throughout Wisconsin and on appeal in the Wisconsin Court of Appeals and Supreme Court, as well as in a number of federal district courts and circuit courts of appeals. To date, his cases have resulted in nearly 100 published decisions and a much larger number of unpublished decisions.

Attorney Henak did all or a significant part of the briefing for a party or amicus in each of the following Federal and Wisconsin published cases:

FEDERAL CASES:


Starkweather v. Smith, 574 F.3d 399 (7th Cir. 2009)

Opening Brief
Reply Brief

Simonson v. Hepp, 549 F.3d 1101 (7th Cir. 2008)

Opening Brief
Reply Brief

Samuel v. Frank, 525 F.3d 566 (7th Cir. 2008) Court of Appeals agrees with petitioner that Wisconsin Supreme Court applied the wrong standard for assessing whether witness statements are voluntary and thus admissible under the Due Process Clause. Court nonetheless holds that statement by fifteen year old witness inculpating petitioner in sexual assault was adequately reliable under Due Process Clause despite the fact it was extracted from her by taking away her newborn child.

Opening Brief
Reply Brief

Malinowski v. Smith, 509 F.3d 328 (7th Cir. 2007) Court of Appeals holds that the state court's exclusion of evidence from complainant's; school counselor regarding complainant's general credibility problems and the fact she had emotional difficulties that negatively impacted her ability to perceive and relate the truth was not contrary to or an unreasonable application of controlling United States Supreme Court precedent, and therefore did not permit federal habeas relief.

Opening Brief
Reply Brief

Lo v. Endicott, 506 F.3d 572 (7th Cir. 2007) Court of Appeals holds that federal habeas claim was untimely, even though it was filed within one year of chargeable time following the state Supreme Court's decision that first gave rise to the legal right asserted.

Opening Brief
Reply Brief

Goodman v. Bertrand, 467 F.3d 1022 (7th Cir. 2006) Court of Appeals reverses district court and grants federal habeas relief on the grounds that petitioner was denied the effective assistance of counsel at trial. Court of Appeals holds that state court's contrary conclusion was an unreasonable application of Strickland v. Washington, 466 US 668 (1984), because the cumulative effect of trial counsel's errors gave rise to a reasonable probability of a different result on a retrial. (Charges ultimately dismissed prior to retrial in state court).

Opening Brief
Reply Brief

Eckstein v. Kingston, 460 F.3d 844 (7th Cir. 2006) Court of Appeals affirms district court's denial of federal habeas petition alleging ineffectiveness of counsel. Court applies novel standard for deficient performance, evaluating counsel's overall performance rather than the reasonableness of the specific errors alleged by the petitioner. As a result, the Court conflates the deficient performance and resulting prejudice prongs of the Strickland test.

Opening Brief
Reply Brief

Martin v. Grosshans, 424 F.3d 588 (7th Cir. 2005) Court of Appeals reverses denial of federal habeas relief on grounds that multiple errors of trial counsel denied petitioner the effective assistance of counsel. Court also holds that the state court of appeals' analysis of resulting prejudice was contrary to controlling Supreme Court standards. (Charges ultimately dismissed prior to retrial in state court).

Opening Brief
Reply Brief

Walker v. Litscher, 421 F.3d 549 (7th Cir. 2005) Court of Appeals affirms denial of federal habeas relief on the grounds that the exclusion of evidence reflecting the complainant's motive to falsely accuse the defendant of sexual assault did not violate his Sixth Amendment right to confront the witnesses against him.

Opening Brief
Reply Brief

U.S. v. Mayes, 370 F.3d 703 (7th Cir. 2004) On direct appeal from federal drug conspiracy conviction, the Court of Appeals agrees that the trial court erred in admitting evidence of anonymous threats to a witness, but nonetheless finds the error harmless. The Court does reverse the sentence of Henak Law Office, S.C., client Raphael Clayton, on the grounds that the sentencing court misapplied the Federal Sentencing Guidelines in determining his role in the offense. (Life sentence without parole ultimately reduced to 25 years on resentencing).

Clayton Separate Opening Brief
Joint Reply Brief
Clayton Separate Reply Brief

U.S. v. Johnson, 335 F.3d 589 (7th Cir. 2003) Court of Appeals rejects argument that Supreme Court's decision in Apprendi v. New Jersey, 530 US 466 (2000), applies to the calculation of drug quantity under the Federal Sentencing Guidelines, barring consideration of drug quantities not found by the jury. Johnson's position ultimately was upheld by the Supreme Court in United States v. Booker, 543 US 220 (2005), albeit too late for Mr. Johnson.

Opening Brief
Reply Brief

U.S. v. Mitchell, 299 F.3d 632 (7th Cir. 2002) Court of Appeals rejects defendants' argument that the federal "felon in possession of a firearm" statute, 18 U.S.C. §922(g), is unconstitutional under the Commerce Clause in that criminalized possession by felons of firearms that only previously traveled in interstate commerce.

Peete Opening Brief
Peete Reply Brief

U.S. v. Schuh, 289 F.3d 968 (7th Cir. 2002) Court of Appeals reverses Schuh's sentence and remands for resentencing based on district court's erroneous application of the Federal Sentencing Guidelines provisions regarding role in the offense. (19 year sentence reduced to 12 years, seven months on resentencing).

Opening Brief
Reply Brief

Braun v. Powell, 227 F.3d 908 (7th Cir. 2000) Court of Appeals reverses district court's grant of federal habeas relief, inventing a novel "di minimis" exception to the constitutional right to a public trial.

Response Brief

Washington v. Smith, 219 F.3d 620 (7th Cir. 2000) Court of Appeals affirms grant of federal habeas relief on the grounds that the cumulative effect of trial counsel's unreasonable errors denied Washington the effective assistance of counsel at trial. Court rules that state court of appeals decision was contrary to and an unreasonable application of the Supreme Court's Strickland standard for assessing resulting prejudice. (Charges ultimately dismissed prior to retrial in state court).

U.S. v. Ladish Malting Co., 135 F.3d 484 (7th Cir. 1998)

Kurzawa v. Jordan, 146 F.3d 435 (7th Cir. 1998)

U.S. v. Vitek Supply Corp., 144 F.3d 476 (7th Cir. 1998)

Liegakos v. Cooke, 106 F.3d 1381 (7th Cir. 1997)

Mainiero v. Jordan, 105 F.3d 361 (7th Cir. 1997)

Neumann v. Jordan, 84 F.3d 985 (7th Cir. 1996)

U.S. v. Gunderson, 55 F.3d 1328 (7th Cir. 1995)

U.S. v. Andersen, 45 F.3d 217 (7th Cir. 1995)

U.S. v. Knapp, 25 F.3d 451 (7th Cir. 1994)

U.S. v. Lechuga, 994 F.2d 346 (7th Cir. 1993)

U.S. v. Lechuga, 975 F.2d 397 (7th Cir. 1992)

U.S. v. Antzoulatos, 962 F.2d 720 (7th Cir. 1992)

U.S. v. Jewel, 947 F.2d 224 (7th Cir. 1991)

U.S. v. Lamon, 930 F.2d 1183 (7th Cir. 1991)

U.S. v. Shyres, 898 F.2d 647 (8th Cir. 1990)

U.S. v. Lov-It Creamery, Inc., 895 F.2d 410 (7th Cir. 1990)

Hernandez v. Wallace, 524 F.Supp.2d 1097 (E.D. Wis. 2007)

Warrichaiet v. Jansen, 441 F.Supp.2d 989 (E.D. Wis. 2006)

Braun v. Powell, 77 F.Supp.2d 973 (E.D. Wis. 1999)

Washington v. Smith, 48 F.Supp.2d 1149 (E.D. Wis. 1999)

Liegakos v. Cooke, 928 F.Supp. 799 (E.D. Wis. 1996)

U.S. v. Lechuga, 769 F.Supp. 1056 (E.D. Wis. 1991)

U.S. v. Hoffman, 677 F.Supp. 589 (E.D. Wis. 1988)


WISCONSIN CASES:


State v. Nielsen, 805 N.W.2d 353, 2011 WI 94 Supreme Court suggests that appellate attorneys not be sanctioned for alleged violations of appellate rules without due process of law. HLO represented amicus Wisconsin Association of Criminal Defense Lawyers in support of Nielsen.

Amicus Brief

State v. Domke, 805 N.W.2d 364, 2011 WI 95 Supreme Court finds deficient performance of trial counsel on numberous grounds but concludes counsel's errors did not prejudice Domke. HLO represented amicus Wisconsin Association of Criminal Defense Lawyers in support of Domke on deficiency issue.

Amicus Brief

State v. Davis, --- Wis.2d ---, --- N.W.2d ----, 2011 WI App 147 Court of Appeals reverses 2001 felony murder conviction in the interests of justice on the grounds that, since a number of new witnesses undermined the evidence relied upon by the state at trial, the real controversy regarding whether Davis in fact was involved in the robbery and homicide was not fully tried.

Opening Brief
Reply Brief

State v. Balliette, 336 Wis.2d 358, 805 N.W.2d 334, 2011 WI 79 Supreme Court construes criminal statue of limitations to permit prosecution of forty-year-old allegations of sexual assault of a child. HLO represented amicus in support of MacArthur.

Amicus Brief

State v. Ninham, 333 Wis.2d 335, 797 N.W.2d 451, 2011 WI 33 Supreme Court upholds sentence of life without parole for a 14-year-old defendant. HLO represented amicus Wisconsin Association of Criminal Defense Lawyers arguing for reversal of longstanding Court of Appeals authority limiting sentencing courts' ability to modify a sentence based on new factors. The Supreme Court adopted HLO's position in another case, State v. Harbor, 2011 WI 28, 333 Wis.2d 53, 797 N.W.2d 828.

Amicus Brief

State v. Nickel, 330 Wis.2d 750, 794 N.W.2d 765, 2010 WI App 161 Court of Appeals rejects collateral attack on alleged violation of State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393. HLO filed amicus at request of Court addressing possible collateral procedures for challenging alleged Cherry violation.

Amicus Brief

State v. McGuire, 328 Wis.2d 289, 786 N.W.2d 227, 2010 WI 91 Supreme Court upholds sexual assault charges despite argument that 36-year delay in filing charges violated due process.

Opening Brief
Reply Brief

State v. Allen, 328 Wis.2d 1, 786 N.W.2d 124, 2010 WI 89 Supreme Court holds that indigent defendant's failure to identify viable challenge to conviction in response to appointed counsel's no-merit brief bars the defendant from raising the claim or related ineffectiveness claim later, even though appointed counsel and the Court of Appeals also overlooked the claim. Court also holds that the issue later identified by the defendant was frivolous, overlooking 30 years of authority supporting the claim. HLO represented Allen pro bono at request of the Court.

Opening Brief
Reply Brief

State v. Allen, 322 Wis.2d 372, 778 N.W.2d 863, 2010 WI 10 (Recusal Order)

Justice Gableman Recusal Documents

State v. Doss, 312 Wis.2d 570, 754 N.W.2d 150, 2008 WI 93 Supreme Court reverses Court of Appeals and creates exception from United States Supreme Court's Confrontation Clause standards set forth in Crawford v. Washington, 541 U.S. 36 (2004), for affidavits created for purpose of litigation to provide necessary foundational requirements for business records that otherwise would be inadmissable hearsay.

Opening Brief
Reply Brief

State v. MacArthur, 310 Wis.2d 550, 750 N.W.2d 910, 2008 WI 72 Supreme Court construes criminal statue of limitations to permit prosecution of forty-year-old allegations of sexual assault of a child. HLO represented amicus in support of MacArthur.

Amicus Brief

State v. Payette, 313 Wis.2d 39, 756 N.W.2d 423, 2008 WI App 106 Court of Appeals relies on novel, but now controlling, interpretations of the child enticement and causing a child to practice prostitution statutes to affirm denial of motion to withdraw guilty pleas to those charges. Court's procedural analysis of plea withdrawals is quite confused and should not be relied upon. The Court also upheld the sentence against arguments that it was based in part upon anonymous threats not attributable to the defendant and resulted from a proceeding in which the defendant was effectively denied his right to be present when the court refused to allow him to look at the complainant as she made her argument in support of a maximum sentence.

Opening Brief
Reply Brief

State v. Doss, 305 Wis.2d 414, 740 N.W.2d, 2007 WI App 208 Court of Appeals applies Crawford in straight forward manner to reverse theft conviction that was based primarily upon hearsay bank records, the foundation for admission of which was provided solely by affidavits created for purposes of the litigation. The decision subsequently was reversed by the Supreme Court.

Opening Brief
Reply Brief

State v. Brown, 298 Wis.2d 37, 725 N.W.2d 262, 2006 WI 131

Amicus Brief

State v. Annina, 296 Wis.2d 599, 723 N.W.2d 708, 2006 WI App 202 Court of Appeals upholds conviction for resisting an officer, despite the fact that the alleged resistance resulted from the officers' concededly illegal entry to defendant's home without a valid warrant.

Opening Brief
Reply Brief

State ex rel. Van Hout v. Endicott, 296 Wis.2d 580, 724 N.W.2d 692, 2006 WI App 196 Court of Appeals refuses to reinstate the direct appeal rights of the petitioner who was abandoned by his appointed appellate lawyer. The Court, in a decision inexplicable in light of the controlling standards in Anders v. California, 386, U.S. 738 (1967), concludes that the petitioner somehow knowingly and voluntarily waived his right to counsel and a direct appeal by insisting that his lawyer file a merits brief rather than a no-merit report. Contrary to the Court of Appeals' suggestion, the default requirement for appellate counsel under those circumstances is to file a no merit report, not simply abandon the client.

State v. Nelson, 294 Wis.2d 578, 718 N.W.2d 168, 2006 WI App 124

Opening Brief
Reply Brief

State v. Kaster, 292 Wis.2d 252, 714 N.W.2d 238, 2006 WI App 72

Opening Brief
Reply Brief

State v. Armstrong, 283 Wis.2d 639, 700 N.W.2d 98, 2005 WI 119

Amicus Brief

State v. DeLain, 280 Wis.2d 51, 695 N.W.2d 484, 2005 WI 52

Opening Brief
Reply Brief

State v. Evans, 273 Wis.2d 192, 682 N.W.2d 784, 2004 WI 84

Opening Brief

State v. Gallion, 270 Wis.2d 535, 678 N.W.2d 197, 2004 WI 42

Amicus Brief

State v. Thornton, 270 Wis.2d 265, 677 N.W.2d 274, 2004 WI 35

Opening Brief
Reply Brief

State v. DeLain, 272 Wis.2d 356, 679 N.W.2d 562, 2004 WI App 79

Opening Brief
Reply Brief

State v. Ziebart, 268 Wis.2d 468, 673 N.W.2d 369, 2003 WI App 258

Opening Brief
Reply Brief

State v. Lo, 264 Wis.2d 1, 665 N.W.2d 756, 2003 WI 107

Opening Brief
Reply Brief

State v. Davis, 254 Wis.2d 1, 645 N.W.2d 913, 2002 WI 75

Amicus Brief

State v. Samuel, 252 Wis.2d 26, 643 N.W.2d 423, 2002 WI 34

Opening brief
Response brief

Gilbert v. Wisconsin Dept. of Revenue, 633 N.W.2d 218, 2001 WI App 153
Reply Brief

State v. Trecroci, 246 Wis.2d 261, 630 N.W.2d 555, 2001 WI App 126

Response brief

State v. Samuel, 240 Wis.2d 756, 623 N.W.2d 565, 2001 WI App 25

Opening Brief

State v. Weidner, 235 Wis.2d 306, 611 N.W.2d 684, 2000 WI 52

Amicus Brief

State v. Inglin, 224 Wis.2d 764, 592 N.W.2d 666 (Wis. App. 1999)

Opening Brief
Reply Brief

County of Kenosha v. C & S Management, Inc., 223 Wis.2d 373, 588 N.W.2d 236 (Wis. 1999)

Opening Brief
Reply Brief

State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Wis. App. 1998)

Opening Brief
Reply Brief

State v. Kevin L.C., 216 Wis.2d 166, 576 N.W.2d 62 (Wis. App. 1997)

Amicus Brief

State v. Avery, 213 Wis.2d 228, 570 N.W.2d 573 (Wis. App. 1997)

State v. Van Camp, 213 Wis.2d 131, 569 N.W.2d 577 (Wis., 1997)

Opening Brief
Reply Brief

State v. Howard, 211 Wis.2d 269, 564 N.W.2d 753 (Wis. 1997)

State v. Damaske, 212 Wis.2d 169, 567 N.W.2d 905 (Wis. App. 1997)

State v. Hall, 207 Wis.2d 54, 557 N.W.2d 778 (Wis. 1997)

Opening Brief
Reply Brief

State v. Dowe, 207 Wis.2d 129, 557 N.W.2d 812 (Wis. 1997)

Amicus Brief

State v. Hicks, 207 Wis.2d 51, 557 N.W.2d 412 (Wis. 1997)

Opening Brief
Reply Brief

State v. Gilmore, 201 Wis.2d 820, 549 N.W.2d 401 (Wis. 1996)

Opening Brief
Reply Brief

State v. Lee, 197 Wis.2d 960, 542 N.W.2d 143 (Wis. 1996)

Response brief

State v. C & S Management, Inc., 198 Wis.2d 844, 544 N.W.2d 237 (Wis. App. 1995)

Opening Brief
Reply Brief

State v. Gilmore, 193 Wis.2d 403, 535 N.W.2d 21 (Wis. App. 1995)

Response brief

State v. Aukes, 192 Wis.2d 338, 531 N.W.2d 382 (Wis. App. 1995)

Opening Brief
Reply Brief

State v. Mainiero, 189 Wis.2d 80, 525 N.W.2d 304 (Wis. App. 1994)

Opening Brief
Reply Brief

State v. Braun, 185 Wis.2d 152, 516 N.W.2d 740 (Wis. 1994)

Opening Brief
Reply Brief

State v. Kurzawa, 180 Wis.2d 502, 509 N.W.2d 712, 62 USLW 2514 (Wis. 1994)

Response brief

State v. Neumann, 179 Wis.2d 687, 508 N.W.2d 54 (Wis. App. 1993)

Opening Brief
Reply Brief

State v. Braun, 178 Wis.2d 249, 504 N.W.2d 118 (Wis. App. 1993)

Opening Brief
Reply Brief

State v. Harris, 174 Wis.2d 367, 497 N.W.2d 742 (Wis. App. 1993)

Opening Brief
Reply Brief

State v. Kurzawa, 173 Wis.2d 769, 496 N.W.2d 695 (Wis. App. 1993)

State v. Fettig, 172 Wis.2d 428, 493 N.W.2d 254 (Wis. App. 1992)

State v. Hyndman, 170 Wis.2d 198, 488 N.W.2d 111 (Wis. App. 1992)

State v. Borrell, 167 Wis.2d 749, 482 N.W.2d 883 (Wis. 1992)

State v. Schober, 167 Wis.2d 371, 481 N.W.2d 689 (Wis. App. 1992)

State v. Bonds, 165 Wis.2d 27, 477 N.W.2d 265 (Wis. 1991)

Miller Brands-Milwaukee, Inc. v. Case, 162 Wis.2d 684, 470 N.W.2d 290 (Wis. 1991)

State v. Garrity, 161 Wis.2d 842, 469 N.W.2d 219 (Wis. App. 1991)

State v. Bonds, 161 Wis.2d 605, 469 N.W.2d 184 (Wis. App. 1991)

Miller Brands-Milwaukee, Inc. v. Case, 156 Wis.2d 800, 457 N.W.2d 896 (Wis. App. 1990)

State v. Bruckner, 151 Wis.2d 833, 447 N.W.2d 376 (Wis. App. 1989)
 
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