COURT OF APPEALS DECISION DATED AND FILED August 5, 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. Michael Allen Chesir, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer[1] and Kessler, JJ.
¶1 PER CURIAM. Michael Chesir appeals from a circuit court order denying his Wis. Stat. § 974.06 (2005-06) [2] postconviction motion by which he sought a new
trial on the basis of newly-discovered evidence and on the basis of ineffective
assistance by trial and appellate counsel. We conclude that Chesir’s motion was
procedurally barred because he twice previously sought postconviction and
appellate relief and did not articulate an adequate reason for failing to raise
these issues in those previous postconviction proceedings. See State
v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 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). We
therefore affirm the circuit court’s order.
¶2 In
1996, Chesir lived with his wife, Danita, their two daughters, and Danita’s
daughter, Nicole. Nicole accused Chesir
of sexually assaulting her, and Chesir was charged with two counts of
second-degree sexual assault and two counts of child enticement.[3] A jury found Chesir guilty on all counts.
¶3 Chesir
sought postconviction relief in the circuit court, which was denied, and he
appealed to this court. In an opinion
released February 15, 2000, we affirmed the judgment of conviction and
postconviction order. The supreme court
denied review.
¶4 In
April 2001, Chesir, by counsel, filed a motion for postconviction relief under Wis. Stat. § 974.06, “on similar
grounds as those submitted in the prior pleadings on appeal,” and also “upon
grounds of newly-discovered evidence.”
The basis of this latter claim was Chesir’s contention that trial and
appellate counsel had provided him ineffective assistance. More specifically, Chesir argued that the
circuit court had erred in permitting introduction of “other acts” evidence
against him, and that appellate counsel had been ineffective for failing to
raise and brief the issue adequately.
The circuit court denied the motion, Chesir appealed, but subsequently
dismissed the appeal voluntarily.
¶5 In
December 2005, Chesir, by counsel, filed the motion that is the subject of this
appeal. He again raised claims of
ineffective assistance of trial counsel, this time arguing that counsel was
ineffective for failing to object when the State improperly introduced evidence
of Nicole’s prior sexual conduct,[4] and
engaged in improper argument to the jury.
He also argued that postconviction and appellate counsel had been
ineffective for failing to raise these issues.
The circuit court rejected Chesir’s claims on the merits.
¶6 On
appeal, the State argues that this court need not reach the merits of Chesir’s
claims and should instead conclude that Chesir’s motion was procedurally barred
under Escalona-Naranjo. See State v. Holt, 128
¶7 In
Escalona-Naranjo,
the supreme court, noting that Wis.
Stat. § 974.06(4) states that any ground for appeal not raised “in
the proceeding that resulted in the conviction or sentence or in any other
proceeding the person has taken to secure relief may not be the basis for a
subsequent motion,” held:
Section 974.06(4) compels a prisoner to raise all grounds regarding postconviction relief in his or her original, supplemental or amended motion. Successive motions and appeals, which all could have been brought at the same time, run counter to the design and purpose of the legislation.
We simply apply the plain language of subsection (4)
which requires a sufficient reason to
raise a constitutional issue in a sec. 974.06 motion that could have been raised on direct appeal or in a sec. 974.02 motion.
Escalona-Naranjo, 185
¶8 Escalona-Naranjo
is on point and dispositive. In that
case, Escalona-Naranjo was convicted of crimes and pursued postconviction
relief and a direct appeal in this court.
He subsequently filed another postconviction motion under Wis. Stat. § 974.06, alleging
ineffective assistance of counsel for counsel’s failure to object to admission
of “certain evidence and testimony.” Escalona-Naranjo,
185
¶9 In
this instance, prior to filing the postconviction motion that is the subject of
this appeal, Chesir sought postconviction relief and an appeal under Wis. Stat. Rule 809.30. When those efforts proved unsuccessful, he
sought postconviction relief under Wis.
Stat. § 974.06. Although
Chesir now contends that first § 974.06 motion was simply “an attempt to
toll federal habeas time limits,” the fact remains that Chesir has failed to
provide a reason sufficient to overcome the procedural bar of Escalona-Naranjo. Chesir’s argument that the bar does not apply
because the issues raised have not been litigated and they are raised in the
context of a claim of ineffective assistance by trial and appellate counsel is
unavailing. Chesir has not yet
demonstrated why the issues raised in his second § 974.06 motion—including
his ineffective-assistance claims—could not have been raised four years earlier
in his first § 974.06 motion.
By
the Court.—Order affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This opinion was circulated and approved before Judge Wedemeyer’s death.
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3] The circuit court ordered Chesir to avoid any pretrial contact with either Danita or Nicole. He repeatedly disregarded that order, which led to additional charges of witness intimidation. Chesir’s convictions on these charges are unrelated to the issues in this case, however, and we need not discuss them further.
[4] Chesir argued that counsel should have objected to introduction of evidence regarding Nicole’s virginity and his attempt to have Nicole take birth control.