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(State) Habeas Corpus — Generally

State v. Rodosvaldo C. Pozo, 2002 WI App 279, 258 Wis. 2d 796, 654 N.W.2d 12


¶8. Writ of habeas corpus is an equitable remedy that protects a person’s right to personal liberty by freeing him or her from illegal confinement. State ex rel. Dowe v. Waukesha County Circuit Court, 184 Wis. 2d 724, 728-29, 516 N.W.2d 714, 715-16 (1994). It arises in common law and is guaranteed by the state2 and federal3 constitutions, as well as by statute.4 Because it is an extraordinary writ, habeas corpus relief is available only where the petitioner demonstrates: (1) restraint of his or her liberty, (2) which restraint was imposed contrary to constitutional protections or by a body lacking jurisdiction and (3) no other adequate remedy available at law. State ex rel. Haas v. McReynolds, 2002 WI 43, ¶12, 252 Wis. 2d 133, 643 N.W.2d 771. Habeas corpus is not a substitute for appeal and therefore, a writ will not be issued where the “petitioner has an otherwise adequate remedy that he or she may exercise to obtain the same relief.” Id. at ¶14; see also State ex rel. Doxtater v. Murphy, 248 Wis. 593, 602, 22 N.W.2d 685, 689 (1946).

¶9. Wisconsin Stat. § 974.06(8) sets out the statutory provisions which explain the availability, or lack thereof, of writ of habeas corpus in postconviction proceedings.5 Section 974.06(8) provides in relevant part:

A petition for a writ of habeas corpus … shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced the person, or that the court has denied the person relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her detention.

Additionally, in a postconviction setting, a petition for writ of habeas corpus will not be granted where (1) the petitioner asserts a claim that he or she could have raised during a prior appeal, but failed to do so, and offers no valid reason to excuse such failure, State ex rel. LeFebre v. Israel, 109 Wis. 2d 337, 342, 325 N.W.2d 899, 901 (1982), or (2) the petitioner asserts a claim that was previously litigated in a prior appeal or motion after verdict. State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512, 514 (Ct. App. 1991) (“A matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue.”).

Court bars Pozo’s habeas claims because he cold have raised them on direct appeal; and also because he didn’t provide a valid reason to excuse failure to raise them.


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