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Serial Litigation Bar – § 974.06 / Motion to Modify Sentence

State v. John Casteel, 2001 WI App 188, PFR filed

Issue: Whether defendant is entitled to have reviewed on the merits issues that either were, or could have been, raised on prior appeals.


¶13. On appeal, Casteel raises three arguments, two of which we previously have addressed. He provides no reasoning why he could not have raised these arguments in his direct appeal or first Wis. Stat. § 974.06 motion, as required by § 974.06(4). While persons have a constitutional right to access to the courts, that right is neither absolute nor unconditional. Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 785, 565 N.W.2d 586 (Ct. App. 1997) (citing In re Green, 669 F.2d 779, 785 (D.C. Cir. 1981)). Section 974.06(4) forecloses review of his arguments. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

Issue: Whether Casteel’s failure to argue in prior appeals that the special action release program, § 304.02, is a new factor justifying sentence modification bars such an argument now.


¶17. We note that the special action parole release statute was first adopted in 1989. See 1989 Wis. Act 31. In 1993, Casteel argued that a new factor justified resentencing, but did not raise the current issue. See Casteel, Nos. 93-1306-CR and 93-1307-CR. In the additional six appeals since 1989, Casteel failed to raise this issue. He has not provided any reason that prevented him from arguing it previously. His appeal on this issue is untimely. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

This reasoning is dubious. Escalona merely interprets § 974.06 — the statutory authority for collateral attacks on convictions; the limits it imposes on serial litigation are those it discerned in the statute. Sentence modification, on the other hand, is an exercise of inherent, common law authority, and importing purely statutory restrictions into this exercise


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