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Serial Litigation Bar (Escalona-Naranjo): Applicable to No-Merit Report, § 809.32 (Anders Appeal)

State v. Christopher G. Tillman, 2005 WI App 71
Tillman, pro se


¶2. The issue on the instant appeal is whether the procedural bar of Escalona-Naranjo may be applied when a prior appeal was processed under the no merit procedure set forth in Wis. Stat. Rule 809.32. For the reasons stated below, we conclude that the procedural bar of Escalona-Naranjo, as codified in Wis. Stat. § 974.06(4), may be applied in the appropriate case. We further hold under facts and history of this case that the issues in Christopher Tillman’s current appeal are subject to the procedural bar of Escalona-Naranjo.

¶19 We therefore reject any notion that the no merit procedure is too perfunctory as a matter of law to permit the application of Wis. Stat. § 974.06(4). We conclude that when a defendant’s postconviction issues have been addressed by the no merit procedure under Wis. Stat. Rule 809.32, the defendant may not thereafter again raise those issues or other issues that could have been raised in the previous motion, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. SeeEscalona-Naranjo, 185 Wis. 2d at 181-82.

¶20 In making this pronouncement, we stress that the procedural bar of Escalona-Naranjo is not an ironclad rule. State v. Crockett, 2001 WI App 235, ¶¶7-8, 248 Wis. 2d 120, 635 N.W.2d 673 (an issue waived under Escalona-Naranjo may still be addressed by the court in its discretion); see also State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (waiver is a rule of judicial administration, not jurisdiction and courts have discretion to make exceptions). We also recognize that a no merit appeal is a different breed of appeal because, while Anders envisions counsel acting as an advocate, the fact remains that counsel ultimately concludes that there are no issues of arguable merit. See Anders, 386 U.S. at 744-45. Therefore, in considering whether to apply the procedural bar of Escalona in a given case, the court (both trial and appellate) must pay close attention to whether the no merit procedures were in fact followed.5 In addition, the court must consider whether that procedure, even if followed, carries a sufficient degree of confidence warranting the application of the procedural bar under the particular facts and circumstances of the case.

5   For instance, in Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000), the court held that the defendant was not procedurally barred from raising a claim of ineffective assistance of counsel even though he had procedurally raised the issue because “he was not invited to file a response [to the no merit report] and he did not do so of his own initiative.” Id. at 349. While the clerk of the federal district court advised the defendant that he could respond to the no merit report, this notification did not advise that a response was a matter of right and a matter of obligation if the defendant wanted to preserve his claim for further review. Id. at 351. Here, however, Tillman filed a response to the no merit report.

The court goes on to say that Tillman’s claims are barred because they were resolved in the prior no-merit appeal: “This court’s prior no merit decision did not address Tillman’s claims in terms of multiplicity and double jeopardy because Tillman did not couch his response in those terms. However, we did address the factual challenge underlying these present claims. … This history reveals that Tillman’s current phrasing of his grievance in terms of double jeopardy and multiplicity is simply a resurrection of his prior arguments under new labels.” ¶¶23-24. Thus we find a great deal of potential for doctrinal mischief, because it simply wasn’t necessary for the court to discuss let alone reach the Escalona issue. And that is because once the court commits itself to the view (¶¶16-18) that a no-merit report “necessarily implicates the merits of the appeal,” then it can only follow that an issue already decided by the no-merit report (as in Tillman’s very instance) should be barred not by the somewhat technical, stilted Escalona doctrine, but barred instead by the much more basic notion of law of the case – see, e.g. Earnest L. White v. U.S., 371 F.3d 900 (7th Cir. 2004). And to the extent that Wisconsin adopts that court’s view that a no merit appeal establishes law of the case, note that the doctrine is somewhat flexible — see cases discussed below, and scroll down: “Binding Authority — Law of the Case”. Keep in mind, too, established authority that defendant’s failure, in response to the no-merit report, to raise an ineffective-assistance claim does not waive that issue for purposes of federal habeas review, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003). (Cautionary note: that case arose under the prior version of § 809.32. Whether that holding would be viable under the current version raises a nice question, see discussion here (scroll down to Page summary); but the point is precisely that the court shouldn’t have triggered such knotty questions with its sweeping language, but should instead have simply relied on an already-decided, now-barred analysis. Much more mundane a discussion, to be sure, but no less accurate a result.

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