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Collateral Attack – Serial Litigation Bar

State v. Paul Dwayne Westmoreland, 2009AP2288, District 1, 11/2/10

court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Brief

¶14     Escalona-Naranjo requires that a defendant raise all grounds for postconviction relief in his or her first postconviction motion or in the defendant’s direct appeal.  See id., 185 Wis. 2d at 185.  A defendant may not pursue claims in a subsequent appeal that could have been raised in an earlier postconviction motion or direct appeal unless the defendant provides a “‘sufficient reason’” for not raising the claims previously.  Id. at 181-82 (citation omitted).  Whether a defendant’s successive appeal is procedurally barred is a question of law that we review de novoState v. Fortier, 2006 WI App 11, ¶18, 289 Wis. 2d 179, 709 N.W.2d 893.

¶15      Here, while Westmoreland spends a great deal of time and energy arguing why his previous pro se postconviction motions, which he claims were both filed under Wis. Stat. § 973.13, do not bar his current claims, he fails to address why he could not have raised these claims in his first postconviction motion filed by his appellate counsel.  Westmoreland was present for the questioning of the witnesses at trial and when the jury’s verdicts were read.  He sets forth no facts now that were not available to him at the time he filed his first postconviction motion.  That fact alone leads us to conclude that his claims are now barred by Escalona-Naranjo.

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