COURT OF APPEALS
DECISION
DATED AND FILED
June 20, 2001
Cornelia G. Clark
Clerk, Court of Appeals
of Wisconsin
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.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
State
of Wisconsin,
Plaintiff-Respondent,
v.
Sammy
J. Gates,
Defendant-Appellant.
APPEAL from an order of the circuit court for Winnebago County: bruce k. schmidt, Judge. Affirmed.
Before Brown, P.J., Nettesheim and Snyder, JJ.
¶1 PER CURIAM. Sammy J. Gates appeals pro se from a circuit court order denying his Wis. Stat. § 974.06 (1999-2000)[1] postconviction motion. We affirm.
¶2 This is Gates’s third proceeding in the court of appeals. In March 1999, we affirmed his conviction for battery to an inmate as a repeater and party to the crime. State v. Gates, 226 Wis. 2d 562, 596 N.W.2d 501 (Ct. App. 1999). In May 2000, we denied his petition for a writ of habeas corpus challenging the effectiveness of his appellate counsel. State ex rel. Gates v. Berge, No. 00‑0934‑W (Wis. Ct. App. May 3, 2000). Thereafter, Gates filed a Wis. Stat. § 974.06 motion in the circuit court, the denial of which is the subject of this appeal.
¶3 In each of these proceedings, Gates has claimed that African-Americans were underrepresented in the Winnebago county jury pool and that trial and appellate counsel were ineffective in connection with this issue. On direct appeal, Gates argued that trial counsel was ineffective for not seeking a change of venue due to the absence of African-Americans in the jury pool. Because Gates did not offer any statistical or demographic evidence to support his claim that African-Americans were underrepresented in the jury pool, he did not prevail on this issue.
¶4 In his habeas petition challenging the assistance provided by appellate counsel, Gates raised the same issue regarding the jury pool. In denying the habeas petition, we held that appellate counsel rendered adequate assistance in this court by briefing the issue based on the record created in the circuit court. We further held that any challenge to the shortcomings of the postconviction record relating to the jury pool issue had to be raised in the circuit court under State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 681-83, 556 N.W.2d 136 (Ct. App. 1996).
¶5 In his subsequent Wis. Stat. § 974.06 motion, Gates alleged that postconviction counsel was ineffective for not offering evidence of his contentions regarding the jury pool. In his motion, Gates contended that the involvement of African-American parties and witnesses in the case warranted an exploration of the composition of the jury pool. Gates speculated that the absence of African-Americans from the jury pool and the presentation of the case to an all-white jury may have led to an unfair trial. Gates reasoned that it did not make sense for trial counsel to raise the issue of a change of venue due to the racial composition of the jury pool but fail to adequately litigate the claim.
¶6 The circuit court denied Gates an evidentiary hearing on his Wis. Stat. § 974.06 motion because his allegations regarding trial counsel’s failure to litigate the change of venue request were conclusory. The court did not address Gates’s contentions about postconviction counsel’s failure to litigate the jury pool issue fully by, inter alia, presenting statistical or demographic evidence to support the underrepresentation claim.
¶7 If Gates’s Wis. Stat. § 974.06 motion alleged facts which, if true, would entitle him to relief, the circuit court had no discretion but to hold an evidentiary hearing on the motion. State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). However, if the motion did not allege sufficient facts, presented only conclusory allegations, or if the record conclusively demonstrates that Gates was not entitled to relief, the circuit court had the discretion to deny the motion without a hearing. Id. at 309-10. However, whether Gates’s motion alleged facts which, if true, would entitle him to relief is a question of law we review de novo. Id. at 310.
¶8 As a preliminary matter, we agree that the circuit court
neglected to address both aspects of Gates’s Wis.
Stat. § 974.06
motion. The circuit court addressed
only the allegations regarding trial counsel’s shortcomings, not the
allegations regarding postconviction counsel’s shortcomings. Nevertheless, we are obliged to uphold a discretionary determination if we can independently
conclude that the facts of record applied to the proper legal standards support
the circuit court’s decision to deny Gates’s motion without a hearing. Andrew J.N. v. Wendy L.D., 174
Wis. 2d 745, 767, 498 N.W.2d 235 (1993).
¶9 We turn to the ineffective assistance claim set forth in
Gates’s motion to determine whether he alleged sufficient facts which, if true,
would entitle him to relief. “There are
two components to a claim of ineffective assistance of counsel: a demonstration that counsel’s performance
was deficient, and a demonstration that such deficient performance prejudiced
the defendant. The defendant has the
burden of proof on both components.” State
v. Smith, 207 Wis. 2d 259, 273, 558 N.W.2d 379 (1997) (citation
omitted). However, we need not consider whether counsel’s performance was
deficient if we can resolve the ineffectiveness issue on the ground of lack of
prejudice. State v. Moats,
156 Wis. 2d 74, 101, 457 N.W.2d 299 (1990).
A showing of prejudice requires more than speculation; the defendant
must affirmatively prove prejudice. State
v. Pitsch, 124 Wis. 2d 628, 641, 369 N.W.2d 711 (1985). A defendant must allege specific
facts as to both the performance and prejudice prongs to sustain an ineffective
assistance of counsel claim. State
v. Saunders, 196 Wis. 2d 45, 51, 538 N.W.2d 546 (Ct. App. 1995).
¶10 In
none of his multiple postconviction proceedings has Gates asserted any basis
for his claim that African-Americans are underrepresented in the Winnebago
county jury pool or systematically excluded from the jury pool. This showing is necessary to demonstrate
that Gates was prejudiced by trial and postconviction counsels’ failure to
fully litigate this issue. While we
appreciate Gates’s claim that the failure to present jury pool evidence is
attributable to the shortcomings of counsel, an ineffective assistance claim
requires proof of prejudice. Gates has
merely speculated about the reasons for the absence of African-Americans from
the jury pool and what that absence may have meant for his case. Gates has not provided any demographic or
statistical evidence about the African-American population in Winnebago county
to support his claims. In the absence
of any supporting evidence, Gates cannot substantiate, as he must, his claim of
prejudice.
¶11 We
conclude that Gates did not allege sufficient facts to warrant a hearing on his
Wis. Stat. § 974.06 motion.
Therefore, the circuit court did not misuse its discretion in denying
the motion without a hearing.
¶12 Gates
has litigated his jury pool claims on three separate occasions. Successive attempts to litigate the same
issue are barred. State v.
Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App.
1991). Litigation of this issue in the
future is barred. Id. at
992 (a defendant cannot relitigate or retheorize a previously litigated
challenge to his or her conviction).
¶13 We do
not address Gates’s complaints about the brief filed by appellate counsel. These claims were addressed in Gates’s
petition for a writ of habeas corpus, which we previously denied. Successive challenges to the effectiveness
of appellate counsel are barred. Cf.
State ex rel. Schmidt v. Cooke, 180 Wis. 2d 187, 189-90, 509 N.W.2d
96 (Ct. App. 1993) (successive Knight[2] petitions are barred).
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.