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Serial Litigation Bar – Ineffective Assistance

State v. Lawrence Williams, 2010AP1028, District 1, 3/8/11

court of appeals decision (not recommended for publication); pro se; case activity; prior history: 220 Wis.2d 458, 583 N.W.2d 845 (Ct.App. 1998)

Williams fails to provide a “sufficient reason” to overcome the serial litigation bar on his § 974.06 motion following direct appeal. He posits ineffective assistance of postconviction counsel, for failing to argue that trial counsel was ineffective in various respects. The court addresses each such instance, in the process notably addressing the threshold question of ineffective assistance as a “sufficient reason,” ¶9 n. 5:

The State claims that “[w]hether ineffective assistance of postconviction counsel on direct appeal may constitute a ‘sufficient reason’ under Wis. Stat. § 974.06(4) to enable the defendant to obtain review of the merits of the underlying claims of error remains an open question.”  (Citing State v. Lo, 2003 WI 107, ¶¶54-57, 264 Wis. 2d 1, 665 N.W.2d 756).  We disagree.  In fact, just recently in State v. Allen, 2010 WI 89, 328 Wis. 2d 1, 786 N.W.2d 124, the Wisconsin Supreme Court reiterated its previous holding in State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996), “that ineffectiveness of postconviction counsel may constitute a sufficient reason as to why an issue that could have been raised on direct appeal was not.”  Allen, 328 Wis. 2d 1, ¶85 (citing Rothering, 205 Wis. 2d at 682; emphasis omitted).

The appeal is litigated pro se, the decision isn’t recommended for publication, and the particular claims appear to be mundane: little purpose would be served, then, in detailed analysis. The court’s conclusion sums up the overall flavor.

¶62      In summary, we note that not only has Williams failed to demonstrate that his trial counsel acted deficiently, Williams has also failed to demonstrate that he was prejudiced by any alleged deficiency.  Williams admitted to police that he committed the ten robberies with which he was charged.  While he later attempted to retract those statements, the trial court noted that his testimony in that regard was “totally unbelievable.”  And Williams testified at trial that he participated in the final armed robbery at the Speedy Lube, drove the getaway car, and was present when Curry stepped out of the car and shot Officer Cole who had followed them from the scene.  Williams’s statements and his testimony were fatal to his case, and he has not demonstrated that any action by his trial counsel would have altered the outcome of his trial.

¶63      Furthermore, contrary to Williams’s assertions, he was not entitled to a Machner hearing on his claim simply because he filed a motion for one.  Because it is evident from the face of his motion that he does not raise sufficient facts to entitle him to relief, the trial court did not err in denying his motion without granting him a hearing.  See Allen, 274 Wis. 2d 568, ¶9.


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