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Campbell v. Smith

United States Court of Appeals, Seventh Circuit

October 20, 2014

MARK A. CAMPBELL, Petitioner-Appellant,
v.
JUDY P. SMITH, Warden, Respondent-Appellee

Argued September 12, 2014.

Page 541

[Copyrighted Material Omitted]

Page 542

Appeal from the United States District Court for the Western District of Wisconsin. No. 12 CV 225 -- Philip G. Reinhard, Judge.

For Mark A. Campbell, Petitioner - Appellant: Steven Donald Phillips, Attorney, Office of The State Public Defender, Madison, WI.

For Judy P. Smith, Respondent - Appellee: Daniel J. O'Brien, Assistant Attorney General, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.

Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.

OPINION

Page 543

Tinder, Circuit Judge.

Mark A. Campbell appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He claims that the prosecutor's comments at his resentencing hearing violated his due process rights and breached his plea agreement and that his counsel rendered ineffective assistance in failing to object. Campbell argues that the Wisconsin Court of Appeals unreasonably applied Supreme Court precedent when it decided that he could not establish that counsel was ineffective in failing to object because the prosecutor had not materially and substantially breached the plea agreement. For the reasons that follow, we affirm.

I. Background

Campbell pleaded guilty in Wisconsin state court to one count of first degree sexual assault of a child. The victim was his then ten-year-old daughter. At the time of the offense, the maximum sentence was sixty years. Pursuant to the plea agreement, the State agreed to dismiss three other counts and recommend a sentence of no more than twenty years, with no more than five to seven years' initial confinement and the balance as extended supervision.

The presentence investigation report recommended twenty to forty years' initial confinement and seven to ten years' extended supervision. At sentencing, the State recommended a sentence in accordance with the plea agreement. The court sentenced Campbell to a bifurcated sentence of forty years, with thirty years' initial confinement and ten years' extended supervision. Campbell appealed, arguing that the trial court failed to consider the state sentencing guidelines. The Wisconsin

Page 544

Court of Appeals vacated the sentence and remanded for resentencing. State v. Campbell, 2009 WI App. 110, 320 Wis.2d 704, 771 N.W.2d 929, ...


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