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Evidentiary Hearing – Pleading Requirements

State v. John Allen, 2004 WI 106, affirming unpublished decision
For Allen: Michael J. Backes


¶14 A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. …¶15 It has been said repeatedly that a postconviction motion for relief requires more than conclusory allegations. Despite the repetitive theme that such motions require the allegation of sufficient material facts that, if true, would entitle the defendant to relief, many defendants continue to file insufficient postconviction motions.…

¶21 There is a clear theme running through these and other similar cases. As we said in Bentley, the motion must include facts that “allow the reviewing court to meaningfully assess [the defendant’s] claim.” Bentley, 201 Wis. 2d at 314. For example, an insufficient statement that does not allow the court to meaningfully assess a defendant’s claim might be an assertion that trial counsel did not adequately prepare for trial. This assertion is the defendant’s opinion only, and it does not allege a factual basis for the opinion. On the other hand, a defendant’s assertion that trial counsel failed to adequately prepare for trial because counsel did not review all the police reports and one police report contained exculpatory information that counsel did not put into evidence, alleges a factual basis for the assertion. See Saunders, 196 Wis. 2d at 51-52.

¶22 In addition, facts that allow a reviewing court to meaningfully assess a defendant’s claim are those facts that are material to the issue presented to the court. A “material fact” is: “[a] fact that is significant or essential to the issue or matter at hand.” Black’s Law Dictionary 611 (7th ed. 1999). …

¶23 As an assistance to defendants and their counsel, we propose that postconviction motions sufficient to meet the Bentley standard allege the five “w’s” and one “h”; that is, who, what, where, when, why, and how. A motion that alleges, within the four corners of the document itself, the kind of material factual objectivity we describe above will necessarily include sufficient material facts for reviewing courts to meaningfully assess a defendant’s claim. …

The meta-message would seem to be: postconviction motions must contain more, rather than less, detail, at least when requesting an evidentiary hearing. The court gives examples of motions that would pass muster; these were elided above but should be studied. The court goes on to find Allen’s motion insufficient to have warranted a hearing: “Though replete with information, the motion contains conclusory allegations and lacks sufficient material facts thatBentley requires,” ¶29. The motion, for example, “focused” on a document but failed to allege “sufficient material facts” to support a conclusion that it “actually exists.” Id. And so on. UPDATE: See also State v. Lisamba L. Love, 2005 WI 116, ¶¶30, et seq. (applying Allenand concluding that sufficient facts pleaded to warrant hearing on both IAC and NDE claims), the court noting, importantly, ¶36, that the pleading need not establish that the asserted facts are admissible evidence: “a movant need not demonstrate theories of admissibility for every factual assertion he or she seeks to introduce”; accord, ¶50: “as we noted above, a movant need not demonstrate the admissibility of the facts asserted in the postconviction motion, but rather must show sufficient objective material factual assertions that, if true, would warrant the movant to relief.”


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