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§ 974.06 – Viability of Escalona-Naranjo

State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals; habeas relief denied, Lo v. Endicott, 7th Cir No. 06-3948, 10/26/07
For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School


¶2. The petitioner, Anou Lo, asks that we overrule our decision in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) (Escalona), in which we held that any claim that could have been raised on direct appeal or in a previous Wis. Stat. § 974.06 (1999-2000) postconviction motion is barred from being raised in a subsequent § 974.06 postconviction motion, absent a sufficient reason….¶15. Although our decision in Escalona discussed the origins and purpose of § 974.06, see Escalona, 185 Wis. 2d at 176-178, 181-182, we take this opportunity to augment that discussion and reinforce our holding that claims of error that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 motion, absent a showing of a sufficient reason….

¶44. Consequently, we reaffirm our holding in Escalona that all claims of error that a criminal defendant can bring should be consolidated into one motion or appeal, and claims that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 postconviction motion absent a showing of a sufficient reason for why the claims were not raised on direct appeal or in a previous § 974.06 motion. Escalona, 185 Wis. 2d 168.

Not much point in tracking the court’s discussion which, after all, ratifies a decision that’s been on the books nearly a decade. One oddity, though: the court criticizes Lo’s construction because it “would permit a defendant to consciously skip grounds for relief on direct appeal and then raise them in a § 974.06 motion.” But a few paragraphs later the court apparently adopts just that construction: “Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal.” ¶44 n. 11, citing Loop for the idea that pretermitting direct appeal throws you outside of Escalona. The point isn’t to criticize the court for a bit of analytical inconsistency, but to suggest that a serial litigation bar does not apply to a § 974.06 motion where no direct-appeal remedy was previously invoked. It’s also worth mentioning that the court granted review for the express purpose of dealing with Escalona blowback, see Dissent, ¶90 n. 1 – everyone agrees that the case has added costs to postconviction procedure without compensatory benefits [defendants now must raise IAC claims against postconviction and appellate counsel to establish the requisite “sufficient reason”; and trial and appellate courts, often at the same time in the same case must separately review those claims]; what should be done? The court holds the question open: “we defer judgment with the intent of seeking new opportunities to review the issue.” ¶57. Is that a good thing? Well, not necessarily when you consider that the court has just rejected the most sensible fix, overruling Escalona, which leaves the AG’s fix on the table – in part, a limitation period of one year for filing the collateral attack; though in fairness, other aspects of the AG’s approach make sense but won’t be detailed here. If you find yourself on the receiving end of a one-year bar you may want to reacquaint yourself with Liegakos v. Cooke, 106 F.3d 1381 (7th Cir. 1997) which, though not precisely on point, may inhibit the retroactive application of such a bar.


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