COURT OF APPEALS DECISION DATED AND FILED December 9, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. Tingia Wheeler, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Tingia Wheeler appeals pro se from an order denying his motion for postconviction relief. The circuit court concluded that Wheeler’s claims are procedurally barred, and we affirm.
BACKGROUND
¶2 In 1996, a jury found Wheeler guilty of first-degree reckless homicide while armed. The circuit court denied Wheeler’s postconviction motion for relief. Wheeler appealed his conviction and the denial of his postconviction motion. His appellate counsel filed a no-merit report, and Wheeler filed a response. This court accepted the no-merit report and summarily affirmed the judgment of conviction and postconviction order. See State v. Wheeler, No. 1998AP1577-CRNM, unpublished slip op. (Wis. Ct. App. Mar. 3, 1999) (Wheeler I).
¶3 In 2005, Wheeler filed a motion for postconviction relief pursuant to Wis. Stat. § 974.06 (2003-04). Wheeler claimed that: (1) he received ineffective assistance of trial and postconviction counsel; (2) his arrest lacked probable cause; (3) the magistrate’s probable cause determination was invalid; and (4) the circuit court admitted his inculpatory statements in error. The circuit court denied the motion, and then denied Wheeler’s request for reconsideration. In 2006, this court affirmed the circuit court’s orders. See State v. Wheeler, No. 2005AP3059, unpublished slip op. (WI App Oct. 17, 2006) (Wheeler II). We concluded that Wheeler could have raised his claims in Wheeler I and, therefore, Wheeler was procedurally barred from raising those claims in a subsequent postconviction motion. See Wheeler II, No. 2005AP3059, ¶10.
¶4 On January 31, 2008, Wheeler filed a postconviction motion
pressing the identical claims that he raised in Wheeler II. The circuit court concluded that the motion
was procedurally barred by State v. Escalona-Naranjo, 185
DISCUSSION
¶5 Wheeler brought the postconviction motion underlying this
appeal citing the authority of Wis.
Stat. § 805.15 (2005-06).[1] That statute permits a party to move for a
new trial, but any such motion must be filed no later than twenty days after
the verdict unless the court sets a longer time by an order specifying a
different deadline. See Wis. Stat. § 805.16(1). The verdict in this case was rendered in
1996, and the record contains no circuit court order extending the deadline for
motions after verdict through January 31, 2008.
Therefore, Wheeler may not proceed under § 805.15. See
Fakler
v. Nathan, 214
¶6 We must next consider whether Wheeler’s claims are barred by
the rule prohibiting criminal defendants from bringing successive
postconviction motions under Wis. Stat. § 974.06. See
Escalona-Naranjo,
185
¶7 Pursuant to Escalona-Naranjo, Wheeler must demonstrate a sufficient reason for bringing a second or subsequent postconviction motion in order to be heard.
[I]f the defendant’s grounds for relief have been finally adjudicated, waived or not raised in a prior postconviction motion, they may not become the basis for a sec. 974.06 motion. The language of [the statute] does not exempt a constitutional issue from this limitation, unless the court ascertains that a “sufficient reason” exists for either the failure to allege or to adequately raise the issue in the original, supplemental or amended motion.
Escalon-Naranjo, 185
¶8 Wheeler asserts that his conviction constitutes a fundamental
miscarriage of justice, and this is a sufficient reason for an additional
postconviction motion. In Wheeler
II, however, we determined that the claims Wheeler raises now are
barred, stating: “the no-merit process procedures
were followed [during Wheeler’s direct appeal] and the record further
demonstrates a sufficient degree of confidence in the result.” See id., No. 2005AP3059, ¶10. Our decision barring Wheeler’s claims
established the law of the case. “A
decision on a legal issue by an appellate court establishes the law of the case
that must be followed in all subsequent proceedings in the case in both the
circuit and appellate courts.” State
v. Casteel, 2001 WI App 188, ¶15, 247
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All further references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.