|
COURT OF APPEALS DECISION DATED AND FILED March 25, 2008 David R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
|
����������� APPEAL
from an order of the circuit court for
����������� Before Curley, P.J., Wedemeyer and Fine, JJ.
�1������� PER CURIAM. Aaron Allen appeals pro se from a circuit court order denying his postconviction motion filed under Wis. Stat. � 974.06 (2005�06).[1]� The circuit court held that Allen�s claims of ineffective assistance by his postconviction counsel were procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) (postconviction claims that could have been raised in prior postconviction or appellate proceedings are barred absent a sufficient reason for failing to raise the claims in the earlier proceeding), and State v. Tillman, 2005 WI App 71, ��19�20, 281 Wis. 2d 157, 696 N.W.2d 574 (the Escalona-Naranjo procedural bar applies to defendants whose direct appeal was via the no-merit procedure, as long as the no-merit procedures were in fact followed, and the record demonstrates a sufficient degree of confidence in the result). �Allen argues that neither case applies to his situation.� We disagree and affirm the circuit court�s order.
�2������� In 1999, Allen was convicted of one count of armed robbery and one count of having been a felon in possession of a firearm.� Allen received a thirty-seven-year prison sentence.� Allen was appointed postconviction counsel, who ultimately filed a no-merit appeal on Allen�s behalf.� See Wis. Stat. Rule 809.32.� Allen did not respond to the no-merit report, and this court, upon independent review of the appellate record, concluded that there were no issues of potential merit apparent from the record.� The court issued its opinion in August 2000.� Allen did not petition the supreme court for review.
�3������� In 2007, Allen filed the motion that is the subject of this appeal.� In his motion, he argued that postconviction counsel had been ineffective �for failing to file a postconviction motion alleging that pretrial counsel was ineffective when he failed to file any motions to suppress the unlawful arrest, the illegal lineup, and the prosecution�s use of defendant [sic] conduct prior to the lineup to show consciousness of the defendant�s alleged guilt.�
�4������� As noted, the circuit court denied Allen�s motion, reasoning
that Escalona-Naranjo
requires defendants to �raise all issues in his or her original postconviction
motion or appeal� unless they have a sufficient reason to overcome that
bar.� Although the circuit court
acknowledged that �the ineffective assistance of postconviction counsel may be
sufficient cause� for failing to raise an issue previously, see State ex rel. Rothering v. McCaughtry,
205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App. 1996), it held that
because Allen �could and should have raised all of [his] issues in response to
counsel�s no merit report,� but did not, the issues were deemed waived under Escalona-Naranjo.� Tillman, 281
�5������� On appeal, Allen contends that his claim of ineffective assistance by postconviction counsel for failing to challenge trial counsel�s performance is a sufficient reason to overcome the Escalona-Naranjo/Tillman bar.� We disagree.
�6������� Here, nothing in Allen�s Wis. Stat. � 974.06 motion suggests and nothing in the record indicates that Allen was, at the time the no-merit report was filed, unaware of the issues underlying the claims of ineffective assistance of counsel ultimately raised in his motion.� Although he blames postconviction counsel for failing to raise the issues in a postconviction motion, he offered no reason as to why he was unable to articulate in a response to the no-merit report the issues he now raises as the basis for his ineffective-assistance-of-counsel claims.� The simple contention that counsel could have and should have raised these issues is not, without more, a sufficient reason to overcome the Escalona-Naranjo/Tillman bar.
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.