COURT OF APPEALS
DECISION
DATED AND FILED
January 13, 2009
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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Charles Rogers,
Defendant-Appellant.
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APPEAL
from orders of the circuit court for Milwaukee
County: paul
van grunsven, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Charles Rogers, pro se, appeals from an order denying
his postconviction motion and from an order denying his motion to
reconsider. The circuit court concluded
that Rogers’s claims of plain error are
procedurally barred pursuant to State v. Escalona-Naranjo, 185 Wis. 2d 168, 517
N.W.2d 157 (1994). We affirm.
BACKGROUND
¶2 A jury convicted Rogers
in 1989 of first-degree intentional homicide and battery while armed. Rogers
appealed, and his appellate attorney filed a no-merit report pursuant to Anders
v. California, 386 U.S. 783 (1967), and Wis. Stat. Rule 809.32 (1991–92). Rogers
moved to dismiss the no-merit report, but otherwise did not file a
response. This court summarily affirmed
the convictions. See State v. Rogers, No.
1991AP2764-CRNM, unpublished slip op. (Wis. Ct. App. Apr. 21, 1992) (Rogers
I).
¶3 In 1993, Rogers
filed a petition for a writ of habeas
corpus in the supreme court. His
petition was denied. See State ex rel. Rogers v. McCaughtry,
No. 1993AP1925-W, unpublished order (Wis. Aug. 17, 1993) (Rogers II).
¶4 In 1996, Rogers filed a petition for a writ of habeas corpus in this court pursuant to State
v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540, 545 (1992) (to
bring a claim of ineffective assistance of appellate counsel, a defendant must
petition the appellate court that heard the appeal for a writ of habeas corpus). Rogers
alleged that his appellate attorney was ineffective by failing to challenge the
effectiveness of his trial attorney’s performance. We denied the petition because Rogers failed to allege
errors by his trial attorney that could serve as a basis for his claim. See
State
ex rel. Rogers v. McCaughtry, No. 1996AP1818-W, unpublished slip op.
(Wis. Ct. App. July 5, 1996) (Rogers III).
¶5 In 1997 and 2001, Rogers
filed his second and third Knight petitions. We denied both petitions as meritless. See
State ex
rel. Rogers v. McCaughtry, No.
2007AP2263-W, unpublished slip op. (Wis. Ct. App. Aug. 8, 1997) (Rogers
IV); State ex
rel. Rogers v.
Litscher, No. 2001AP3132-W, unpublished slip op. (WI App. Feb. 8, 2002)
(Rogers
V).
¶6 In 2003, Rogers
filed a motion in the circuit court for postconviction relief pursuant to Wis. Stat. § 974.06
(2001–02). His claims included
ineffective assistance of trial counsel, prosecutorial misconduct, improper
joinder of charges, and error in sending extrinsic materials to the jury
room. Rogers also claimed to have newly discovered
evidence of police misconduct. The
circuit court denied the motion in its entirety, and this court affirmed. See
State
v. Rogers,
No. 2003AP1448, unpublished slip op. (WI App. Mar. 4, 2004) (Rogers
VI).
¶7 In 2008, Rogers
filed the postconviction motion underlying the instant appeal. He again alleged that his constitutional
rights were violated by instances of prosecutorial misconduct, police
misconduct, and ineffective assistance of his trial attorney. Under the heading “judicial abuse of
discretion,” he renewed his complaints that the circuit court violated his
constitutional rights to due process and a fair trial by refusing to sever the
two charges against him and by allowing extrinsic materials into the jury
room. Rogers argued that all of his claims
constitute “plain error,” and he moved the circuit court to vacate the judgment
of conviction pursuant to Wis. Stat.
Rule 901.03(4) (2005–06). The circuit court denied the claims, and then
denied Rogers’s
motion for reconsideration. This appeal
followed.
DISCUSSION
¶8 The circuit court concluded that Rogers’s claims are procedurally barred. Whether claims are procedurally barred is a
question of law that we review de novo. See
State v.
Tillman, 2005 WI App 71, ¶14, 281 Wis. 2d 157, 165, 696 N.W.2d 574,
578.
¶9 After the time for a direct appeal has passed, an imprisoned
defendant may raise constitutional and jurisdictional claims for relief
pursuant to Wis. Stat. § 974.06. See
State
v. Evans, 2004 WI 84, ¶¶32–33, 273 Wis. 2d 192, 214–215, 682
N.W.2d 784, 795, overruled on other
grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶29, 290
Wis. 2d 352, 368–369, 714 N.W.2d 900, 908.
Defendants are not permitted, however, to pursue an endless succession
of postconviction remedies.
We need finality in our
litigation. 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.
Escalona-Naranjo, 185 Wis. 2d at 185, 517
N.W.2d at 163–164. Thus, claims that
were raised previously, or that could have been but were not presented in a
prior appeal or postconviction motion, are procedurally barred unless the
defendant offers a sufficient reason for failing to pursue the issue
earlier. Id.,
185 Wis. 2d
at 185, 517 N.W.2d at 164. The procedural bar to second or subsequent
postconviction motions applies whether the defendant pursued a conventional
appeal under Wis. Stat. Rule 809.30
or a no-merit appeal pursuant to Wis.
Stat. Rule 809.32. See Tillman, 2005 WI App 71, ¶19, 281 Wis. 2d at 167–168,
696 N.W.2d at 579.
¶10 Rogers
offers several reasons that a procedural bar should not be applied to his most
recent postconviction motion. First, he
asserts that Escalona-Naranjo and Tillman apply to motions brought
pursuant to Wis. Stat. § 974.06,
but do not apply to his claims of plain error, which he filed under the
authority of Wis. Stat. Rule 901.03(4). We disagree.
¶11 We look beyond the labels that pro se prisoners affix to their pleadings. Lewis v. Sullivan, 188 Wis. 2d 157, 165,
524 N.W.2d 630, 633 (1994) (“‘If necessary the court should relabel the
prisoner’s pleading and proceed from there.’”) (citation omitted). All of Rogers’s
current claims are grounded on express allegations of constitutional violations
and thus fall within the ambit of Wis.
Stat. § 974.06. See Evans, 2004 WI 84, ¶33, 273 Wis. 2d at 215, 682
N.W.2d at 795. Accordingly, Rogers is barred from
raising his claims absent a sufficient reason for serial litigation. See
Escalona-Naranjo,
185 Wis. 2d
at 185, 517 N.W.2d at 164.
¶12 Rogers
alternatively asserts that he has a sufficient reason for bringing sequential
attacks on his conviction because the original no-merit procedures were
defective. When postconviction relief is
initially sought through the no-merit process, we apply a procedural bar to
later litigation only when the no-merit procedures were followed and when those
procedures permit a sufficient degree of confidence in the outcome under the
circumstances of the particular case. Tillman,
2005 WI App 71, ¶20, 281 Wis. 2d
at 168–169, 696 N.W.2d at 579–580.
¶13 We previously acknowledged that we erred during the no-merit
proceeding in Rogers I when we mistakenly declined to review the potential
issue of ineffective assistance of trial counsel. See
Rogers
VI, No. 2003AP1448, ¶3. We
remedied our error over a decade ago. In
Rogers
III, Rogers
had the opportunity to raise any claims that his trial attorney was
ineffective. See
Rogers
VI, No. 2003AP1448, ¶¶4, 7 (discussing our resolution of Rogers
III). Because the error in Rogers
I was rectified by Rogers III, the error cannot serve
as a basis for further litigation. Cf. Seelandt v. Seelandt, 24 Wis. 2d 73, 76,
128 N.W.2d 66, 68 (1964) (procedural error in prior proceeding rendered moot by
following correct procedure in subsequent proceeding).
¶14 Rogers
asserts that the no-merit proceeding suffered from additional inadequacies
beyond the failure to review the effectiveness of his trial attorney. The claimed inadequacies do not entitle him
to pursue his current claims.
¶15 Rogers
had an opportunity in Rogers VI to present any
inadequacies allegedly infecting earlier proceedings as a basis for pursuing an
additional postconviction motion. After
considering his allegations, we determined that, as to “all claims of error
besides the ineffectiveness of trial counsel issue, Rogers could have raised
[the claims] in the no-merit proceedings and therefore cannot do so now.” Rogers VI, No. 2003AP1448, ¶7. Our holding governs this litigation. See
State v.
Casteel, 2001 WI App 18, ¶15, 247 Wis. 2d 451, 459, 634 N.W.2d 338, 343
(decision on a legal issue by an appellate court establishes the law of the
case that must be followed in all subsequent proceedings).
¶16 Rogers
next asserts that he is not procedurally barred from bringing his claims
because Rogers III and Rogers VI were wrongly decided. Rogers
appears to argue that alleged errors in resolving his prior litigation permit
him to renew previously rejected claims. Rogers
is wrong. Claims cannot be refiled or
submitted with a new gloss merely because the losing party disagrees with the
original outcome. To the contrary, “[a]
matter once litigated may not be relitigated in a subsequent postconviction
proceeding no matter how artfully the defendant may rephrase the issue.” State v. Witkowski, 163 Wis. 2d 985, 990,
473 N.W.2d 512, 514 (Ct. App. 1991).
¶17 Finally, Rogers
requests that we reverse his conviction on the grounds that justice has
miscarried or that the real controversy has not been fully tried. See
Wis. Stat. § 752.35. Discretionary reversal is a formidable power
that we exercise “sparingly and with great caution.” State v. Williams, 2006 WI App 212,
¶36, 296 Wis. 2d
834, 858, 723 N.W.2d 719, 731. In Rogers’s case, many appellate courts have had the
opportunity to review his claims of error and all have concluded that Rogers is not entitled to
postconviction relief. Rogers has not persuaded us that we should
reach a different conclusion.
By the Court.—Orders affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.