COURT OF APPEALS DECISION DATED AND FILED January 15, 2008 David R. Schanker Clerk of Court of Appeals |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Steven A. Limehouse, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 PER CURIAM. Steven A. Limehouse appeals from related orders summarily denying his motions for postconviction relief and for reconsideration. The issue is whether Limehouse’s belated realization that he could have sought to apply State v. Dubose, 2005 WI 126, ¶33, 285 Wis. 2d 143, 699 N.W.2d 582, on direct appeal constitutes a sufficient reason for failing to previously raise Dubose’s potential applicability while representing himself on direct appeal. We conclude that Limehouse’s failure to “foresee” or timely raise the potential applicability of Dubose prior to his judgment becoming final is not a sufficient reason to circumvent the general rule that collateral review should not be used to retroactively apply a new rule that was not expressly intended to apply retroactively. Therefore, we affirm.
¶2 A jury found Limehouse guilty of two counts of robbery and one count of fleeing from a police officer. The trial court imposed consecutive sentences resulting in an aggregate sentence of thirty-eight years, comprised of a twenty-four-year, nine-month aggregate period of initial confinement and a thirteen-year, three-month aggregate period of extended supervision. Limehouse explicitly admitted that he “completely underst[oo]d” the perils of proceeding pro se before he terminated his representation on direct appeal, and was allowed to dismiss his direct appeal. He then represented himself in postconviction proceedings and on direct appeal. This court affirmed the trial court’s judgment of conviction and order denying his motion for postconviction relief. State v. Limehouse, No. 2004AP2480-CR, unpublished slip op. (WI App Oct. 13, 2005). Limehouse unsuccessfully sought reconsideration from us, and supreme court review. His conviction became final on March 16, 2006.[1]
¶3 Limehouse was initially identified as a perpetrator in one of
the robberies in a show-up identification.
Limehouse moved to suppress that identification, however, the trial
court explained why it summarily denied his suppression motion. In his direct appeal, Limehouse did not
pursue his suppression challenge. While
Limehouse’s direct appeal was pending, the supreme court decided Dubose,
in which it held that show-up identifications are inherently suggestive and
inadmissible unless, under the totality of the circumstances, the show-up
procedure was “necessary,” such as when the police lacked probable cause to
arrest, or exigent circumstances prevented a lineup or a photo array. See Dubose, 285
¶4 Dubose does not explicitly hold whether it applies retroactively. Under these circumstances, the new rule (the Wisconsin Supreme Court’s holding in Dubose) does not apply retroactively on collateral review.
New rules merit retroactive application on collateral review only in two instances. In the first instance, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Second, a new rule should be applied retroactively if it requires observance of those procedures that are implicit in the concept of ordered liberty.
¶5 Limehouse did not request this court or the supreme court to
consider Dubose’s applicability and seek to pursue the denial of his
suppression motion while his direct appeal was pending.
¶6 Limehouse had several months to alert the appellate courts to
Dubose’s
potential applicability to his direct appeal, which was not decided or final
until three and eight months respectively after the Dubose decision. His unawareness of Dubose is one of the
risks he assumed when he elected to terminate his representation and proceed pro se.
Limehouse’s reason for failing to alert us or the supreme court to Dubose’s
potential applicability to his direct appeal while it was pending, namely, his
ignorance of Dubose because he elected to proceed pro se, is not sufficient to circumvent the general rule preventing
retroactive application of a new rule on collateral review. See Howard, 211
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).
[1] A
conviction becomes final after a direct appeal from that judgment and any right
to directly review the related appellate decision are no longer available.
[2] Although Limehouse had not raised the suppression issue in his direct appeal, Dubose would have arguably provided good cause to grant Limehouse leave to raise that issue and file supplemental briefing.