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Defendant’s out-of-state imprisonment doesn’t overcome Escalona bar

State v. Rafael D. Newson, 2018AP551, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)

Newson claims that his trial and postconviction lawyers were ineffective for failing to raise lack of jurisdiction caused by the State’s failure to file its complaint against him before he was extradited to Arizona. He also argued that the Escalona bar should not apply given that he was in Arizona at the time of his direct appeal and his first two postconviction motions. The court of appeals did not bite on either.

Obviously, this case has a long procedural history, which we won’t go into. The point is that Newson claims that because he was in Arizona he did not have access to Wisconsin law, including §974.06 and Escalona, so he did not know that his failure to raise his jurisdictional argument would be barred. The court of appeals responds:

¶15 . . . [W]hy would a lack of knowledge about Wisconsin’s procedural bar have kept Newson from including the jurisdictional argument in his 2004 motion? Newson fails to answer this question, and we in fact pointed out this deficiency in our denial of Newson’s [earlier] petition for a writ of habeas corpus.
¶16 Therefore, we conclude that because Newson has failed to provide a sufficient reason for not raising his jurisdictional claim in his 2004 WIS. STAT. § 974.06 motion, this claim is procedurally barred. See § 974.06(4); Escalona, 185 Wis. 2d at 185.
¶17 Newson also argues that the procedural bar of Escalona should not apply to him because he was still in custody in Arizona at the time his direct appeal and first two postconviction motions were heard. We disagree. As the circuit court pointed out, there is no language in WIS. STAT. § 974.06 that limits its requirements to defendants who are in custody in Wisconsin . . .

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