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Serial Litigation Bar: Application to Motion for Postconviction Discovery

State v. Terry L. Kletzien, Jr., 2011 WI App 22; for Kletzien: James A. Rebholz; case activity; Kletzien BiC; State Resp.; Reply

In a prior appeal, Kletzien unsuccessfully challenged denial of postconviction discovery,  2008 WI App 182. (See, e.g., State v. O’Brien, 223 Wis. 2d 303, 321, 588 N.W.2d 8 (1999) (recognizing “a right to post-conviction discovery when the sought-after evidence is relevant to an issue of consequence.”) Because he could have also raised, as part of that appeal, any other issue in support of relief, the court subsequently refused to reinstate the Rule 809.30 direct-appeal deadline. He then filed a § 974.06 motion, which he presently appeals after denial by the circuit court. The court of appeals holds the challenge barred under the serial-litigation doctrine of State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994).

¶12      As our supreme court has explained, “we need finality in our litigation.”  Escalona-Naranjo, 185 Wis. 2d at 185 (capitalization omitted).  The purpose of Wis. Stat. § 974.06(4) is to require criminal defendants to consolidate all their postconviction claims into one motion or appeal.  Id. at 178 (footnote omitted; emphasis in Escalona-Naranjo). …

¶13      There is no provision in the relevant statutes or case law that exempts postconviction discovery motions from this rule.  Kletzien claims that O’Brien, which was decided after Escalona-Naranjo, implicitly authorizes the bifurcated postconviction procedure he seeks to have us implement; however, this is simply not the case.  At no time does O’Brien even hint at anything akin to a bifurcated procedure involving postconviction discovery motions.  Id. at 303-30.  Moreover, when our supreme court affirmed Escalona-Naranjo several years after O’Brien was decided in State v. Lo, 2003 WI 107, ¶¶44-49, 264 Wis. 2d 1, 665 N.W.2d 756, it at no point made any exception for postconviction discovery motions. …

And, because the only reason Kletzien posits for not having raised the present challenge before is the just-rejected argument “that postconviction discovery motions should not be governed by Escalona-Naranjo,” he doesn’t fall within the “sufficient reason” exception to the bar, ¶17.

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