Serial Litigation Bar
Collins’ § 974.06 motion is procedurally barred by his failure to allege a “sufficient reason” for not previously raising issues as part of his prior, no-merit appeal, ¶1.
Bit more interesting than that, in the following sense: the court not only pays lip service to the idea that it “must pay close attention to whether the no merit procedures were followed,” but proceeds to carry out that task with some diligence, ¶¶9-14. The details are mundane, but in their very ordinariness illustrate pretty well the unwieldy system of postconviction review now in place. State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), of course, was meant to limit collateral review by imposing a “serial litigation” bar following direct appeal. The bar was extended to collateral attacks following no-merit appeals (whether that makes sense is presently beside the point, except to say that difficulty applying the bar is heightened in this context, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003); State v. Christopher G. Tillman, 2005 WI App 71; State v. Ricky J. Fortier, 2006 WI App 11).What it comes down to is that where, as here, the litigant asserts ineffective assistance as the “sufficient reason” then the court is more or less compelled to reach the merits of the claim(s). The supreme court had the opportunity to modify Escalona, in State v. Anou Lo, 2003 WI 107, but instead “reinforce(d)” the holding. And so, every serial litigation claim will include an ineffective-assistance argument, which will compel the reviewing court to look at the merits.