court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.
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.
Issues involving the intersection of the availability of collateral review and the no-merit procedure currently are pending before the Wisconsin Supreme Court in State v. Aaron Antonio Allen, 2007 AP95, in which oral argument will occur tomorrow. The issues there are, as set forth in the table of pending cases: (1) Where a defendant fails to raise a potential claim in response to a no-merit report, what additional showing, if any, is necessary to constitute “sufficient reason” authorizing that defendant to raise the claim in a subsequent motion under Wis. Stat. §974.06? and (2) Does requiring a defendant to respond to a no-merit report with arguable claims that were overlooked by appointed counsel and barring the defendant from ever raising any claim not so raised, conflict with the right to counsel on direct appeal?