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Serial Litigation Bar and No-Merit Procedure

State v. Aaron A. Allen, 2010 WI 89, affirming unpublished decision; for Allen: Robert R. Henak; BiC; Resp.; Reply

¶4   We conclude, following Wis. Stat. § 974.06, that a defendant is not required to file a response to a no-merit report. This means he is not required to raise issues in response to a no-merit report. However, a defendant may not raise issues in a subsequent § 974.06 motion that he could have raised in response to a no-merit report, absent a “sufficient reason” for failing to raise the issues earlier in the no-merit appeal. The fact that the defendant is not required to file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new § 974.06 claims.

¶5   Here, we conclude that Allen’s 2007 postconviction motion is barred by Wis. Stat. § 974.06(4) and Escalona-Naranjo. Allen’s § 974.06 motion is based entirely on issues that he could have raised in a response to his appellate counsel’s no-merit report. He has not alleged a sufficient reason for failing to raise the issues in a response to the earlier no-merit report. The record reflects that the court of appeals properly followed no-merit procedure in 2000 and its decision carries a sufficient degree of confidence to warrant application of the Escalona-Naranjo bar to the issues of this motion. For these reasons, we affirm the court of appeals.

Both the Wisconsin court of appeals (State v. Ricky J. Fortier, 2006 WI App 11;  State v. Christopher G. Tillman, 2005 WI App 71) and 7th Circuit (Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003)) have grappled with whether and to what effect a prior no-merit affirmance operates as a procedural bar to subsequent collateral attack. The supreme court now takes a stab at it. A defendant’s failure to respond to a no-merit report doesn’t itself bar a later attack, ¶39. But that doesn’t make such failure meaningless:

¶41  A no-merit appeal clearly qualifies as a previous motion under § 974.06(4). Therefore, a defendant may not raise issues that could have been raised in the previous no-merit appeal, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. Tillman, 281 Wis. 2d 157, ¶19. Hence, the real issue in this case is whether Allen demonstrated a sufficient reason for failing to raise in a timely response to the 2000 no-merit report the three claims related to ineffective assistance of postconviction counsel that he set out in his 2007 motion.

The court goes on to say Allen fails to make this showing. What are the larger principles? The court reaffirms one principle that may nonetheless have been obscure: “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,” ¶40. But because a no-merit appeal is a prior form of litigation, a later § 974.06 motion triggers the serial litigation bar. It’s not an absolute bar, but it might as well be except for a vanishingly small number of cases. The court stresses “finality” as underlying the bar, such that “(d)elay can also wreak havoc,” ¶73 (going on to suggest, albeit not holding that a 3+-year delay in seeking a new trial might be too long). And when all is said and done, just what is a “sufficient reason” for excusing the serial litigation bar? “To satisfy the “sufficient reason” standard, the defendant must do something to undermine our confidence in the court’s decision, perhaps by identifying an issue of such obvious merit that it was an error by the court not to discuss it,” ¶83. “Whatever reason the defendant offers as a ‘sufficient reason’——ignorance of the facts or law underlying the claim, an improperly followed no-merit proceeding, or ineffective assistance of counsel——the defendant must allege specific facts that, if proved, would constitute a sufficient reason for failing to raise the issues in a response to a no-merit report.  If a defendant fails to do so, the circuit court should summarily deny the motion, as the circuit court appropriately did,” ¶91.

A no-merit appeal is, as both majority and concurrence show, an “appeal.” But it is also counsel’s motion to withdraw, which is why when the court of appeals accepts the report it not only affirms the conviction but also relieves counsel of further representation; and when it rejects the report, requires counsel to continue representation. If the court of appeals misses an “obvious” issue, does that taint the very process by which it relieved counsel? If so, then the mechanism might be an attack on the no-merit report (via supervisory writ in the court of appeals?) rather than 974.06 attack on the conviction in circuit court, with the relief being restoration of the direct-appeal process. Look at it like this: the basis for a 974.06 motion might be obvious if the “omitted” issue is constitutional in nature, but what if it isn’t? A non-constitutional, non-jurisdictional issue simply doesn’t support a 974.06 motion. Maybe you could argue that the appellate attorney was ineffective, a constitutional error in its own right, but that’s a Knight petition, not a Rothering motion, and must therefore be filed in the court of appeals rather than circuit court anyway. Well, there’s no reason you can’t play this game from the comfort of home. Just read the opinion and come up with your own questions — then litigate them so we can finally put them to rest.

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