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Serial Litigation Bar – Sufficiency of Evidence

State v. Robert J. Jacobson, 2011AP581, District 2/3, 10/24/12

court of appeals decision (not recommended for publication); case activity; prior history: 2003AP2023-CR (direct appeal), 2005AP1928 (Knight petition)

Jacobson was convicted after jury trial on three counts of attempted homicide. He undertook an unsuccessful direct appeal, followed by a “Knight” habeas petition (the latter arguing that appellate counsel was ineffective in certain respects). He then filed a § 974.06 motion, denial of which is the subject of this appeal. His attempt to raise sufficiency of the evidence falls prey to the serial litigation bar, State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994), notwithstanding his argument that direct-appeal counsel was ineffective for failing to raise the issue, ¶¶8-9 (court stressing that even though Jacobson may have advanced sufficient reasons for not raising the claim on direct appeal, he posits no reason at all with respect to the Knight petition).

Jacobson’s briefs (available at the “case activity” link) deftly discuss the serial-litigation obstacle. Rather than summarize his arguments here, the interested reader is directed to the briefs. It should be mentioned, though, that Jacobson posits an actual-innocence exception to procedural default (Br.-in-Ch., pp. 35-36; Reply Br., p. 10) which the court doesn’t address, let alone dispatch.

Ineffective Assistance of Counsel

The court concludes that trial counsel did not perform deficiently in various respects (which are too fact-specific to bear elaboration): key witnesses did not, in fact, testify falsely, therefore counsel had no basis to object on that ground, ¶¶10-24; counsel had a valid strategic reason for not arguing alternative defense theories, given his client’s position that he had no involvement at all, ¶¶25-29; the sentencing court did not in fact rely on assertedly inaccurate information, therefore counsel’s failure to object to same didn’t prejudice Jacobson (nor was his right to a sentence based on accurate information violated), ¶¶30-44.

Lastly, the court rejects a new-factor sentence modification claim premised on various grounds, deeming them either not new or inconsequential, ¶¶45-52 (again: the issue is too fact-specific to warrant further summary, except to note that State v. Harbor, 2011 WI 28, 52, 333 Wis. 2d 53, 797 N.W.2d 828 is discussed).

Absence of elaboration in this post, it should be noted, reflects two considerations. First, the court does not undertake to provide any sort of detailed legal analysis of the underlying issues – for example, on the prosecutor’s due process duty to correct testimony known to be false – but instead focuses largely if not exclusively on the facts. Second, Jacobson’s briefs expertly canvass relevant caselaw, and provide a ready resource for the reader curious about applicable legal principles.

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