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December 14, 2010

One guess how this Seventh Circuit habeas state sentencing appeal gets resolved

The Seventh Circuit handed down a notable decision today in Promotor v. Pollard, No. 09-2292 (7th Cir. Dec. 14, 2010) (available here), a case in which a defendant claimed his due process rights were violated during his state sentencing.  The first three paragraphs of the opinion (and perhaps even the first two sentences) should make it pretty easy for readers to figure how the defendant's claims get resolved: 

On April 8, 2003, Rogelio Promotor got drunk, drove at speeds up to 86 miles per hour, tore through two red lights, and crashed into a passing car. He killed four people and severely injured two others. He pleaded no contest in Wisconsin state court to four counts of homicide by intoxicated use of a motor vehicle and two counts of causing injury by intoxicated use of a motor vehicle.

Before sentencing, Promotor cooperated in the creation of a defense pre-sentence investigation report which stated that Promotor consumed up to 23 beers in the hours preceding the crash.  The court mentioned the “23 beers” figure twice when it sentenced Promotor to 66 years of imprisonment and 28 years of supervised release.

Promotor filed post-conviction requests for relief with the Wisconsin state courts, which were denied.  He then filed a petition for a writ of habeas corpus in federal court. He asserted that his due process rights were violated because he was sentenced based on inaccurate information — the 23 beers figure from the defense presentence report.  He also argued that he received ineffective assistance of counsel.  The district court denied the petition, finding that Promotor procedurally defaulted his due process claim by not objecting to the information in his pre-sentence report.  Promotor requested, and the district court granted, a Certificate of Appealability on this question, and on whether the Wisconsin state courts violated Promotor’s due process rights by sentencing him based on inaccurate information.

The Promotor ruling usefully noted that a defendant's due process rights are violated if a presentencing report includes "materially incorrect and the sentencing court relied on it in sentencing." But this important legal principle does not end up helping Rogelio Promotor.

December 14, 2010 at 02:41 PM | Permalink


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