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Serial Litigation Bar

State v. Tracy A. Stokes, 2011AP2379-CR, District 1, 8/7/12

court of appeals decision (1-judge, ineligible for publication); case activity

Stokes’ § 974.06 motion didn’t “set forth any reason, much a sufficient reason, for failing” to raise in his prior postconviction motion the issues presently raised, therefore the issues are procedurally barred, State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), ¶¶10-13.

The foregoing summary requires a bit of elaboration. Stokes was charged in two separate complaints under two separate case numbers, leading to two separate judgments. In the present case, he filed a Rule 809.30 motion which he withdrew before it was ruled on. It is that motion that, the court now says, triggered the serial-litigation bar. (Stokes eventually received relief in the second case, indeed obtained dismissal of its charges, but that is a mere detail for purposes of, and isn’t meaningful to, this discussion.) Stokes litigates this appeal pro se, so his briefs aren’t posted. The State’s brief is, and it points out that the trial judge “found that Stokes had raised the claim that he should be permitted to withdraw his plea … in his first post-conviction motion and had specifically withdrawn it; she found that the issue was therefore waived and procedurally barred[.]” In other words, the bare filing and withdrawal of the motion was enough. Here is the operative principle: “A defendant who has not filed a § 974.02 motion or pursued a direct appeal is not burdened with the requirement of giving a sufficient reason why the claims being raised were not raised before,” State v. Allen, 2010 WI 89, ¶40, 328 Wis. 2d 1, 786 N.W.2d 124. It’s true that Stokes filed a motion, equally true that he didn’t pursue it. So, should his future effort be barred? You’d think that the policy reasons behind the serial-litigation bar – conservation of scarce judicial resources; disallowing multiple kicks at the cat – would work here in Stokes’ favor. But § 974.06(4) on its face requires that “Any ground … knowingly, voluntarily and intelligently waived … in any … proceeding the person has taken to secure relief may not be the basis for a subsequent motion,” absent “sufficient reason.” Did Stokes’ withdrawal of his prior motion place him within this “knowing, voluntary, intelligent waiver” trigger? Perhaps; the court of appeals doesn’t get into it. Admittedly, the problem is a bit obscure, which is to say arises infrequently, but the cautious postconviction practitioner may want to keep this result in mind, and counsel his or her client accordingly as to the potential implications of a withdrawn 809.30 motion.

Stokes raises an entirely separate argument – the sentence in this case was based at least in part on the subsequently dismissed charges – that the court rejects, ¶¶14-18 (the sentencing court did not in fact rely on the dismissed charges; and in any event such reliance would have been permissible under  State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341).

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