COURT OF APPEALS DECISION DATED AND FILED May 19, 2009 David
R. Schanker Clerk of Court of Appeals |
|
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. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT I |
|||
|
|
|||
|
|
|||
State of Plaintiff-Respondent, v. Jimmie Lee Ellis, Defendant-Appellant. |
||||
|
|
|||
APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Jimmie Lee Ellis appeals
from an order that denied his postconviction motion filed pursuant to Wis. Stat. § 974.06 (2007-08).[1] The circuit court concluded that Ellis’s
claims are procedurally barred by State v. Escalona-Naranjo, 185
BACKGROUND
¶2 A jury found Ellis guilty of possessing between five and fifteen grams of cocaine with intent to deliver as a subsequent drug offense. The circuit court imposed a twenty-year term of imprisonment bifurcated as fifteen years of initial confinement and five years of extended supervision. Ellis appealed, and his appellate counsel filed a no-merit report. Ellis submitted three responses raising many claims of error. This court summarily affirmed. State v. Ellis, No. 2003AP3119-CRNM, unpublished slip op. (WI App May 23, 2005) (Ellis I).
¶3 Ellis next filed a series of postconviction motions and one appeal to this court, all of which were unsuccessful. In his eighth postconviction motion, which underlies the instant appeal, he claimed that his trial counsel was ineffective by: (1) failing to object to the sufficiency of the evidence at the preliminary hearing; (2) failing to object to Ellis’s warrantless arrest, search, and seizure; and (3) failing to move for a directed verdict on the ground that the State did not meet its burden of proof. The circuit court concluded that Ellis’s claims were barred, and this appeal followed.
DISCUSSION
¶4 Initially, we note that Ellis does not include in his
appellate briefs any substantive discussion of his claims. An appellate brief requires an argument that
demonstrates why the litigant should prevail, accompanied by supporting
legal authority. State v. Pettit,
171
¶5 Moreover, a defendant may not pursue claims in a subsequent
appeal that could have been raised in an earlier postconviction motion or
direct appeal unless the defendant provides a “sufficient reason” for not
raising those claims previously. Escalona-Naranjo,
185
¶6 This court resolved Ellis’s appeal from the order denying his
sixth postconviction motion in State v. Ellis, No. 2007AP1080,
unpublished slip op. (WI App Aug. 5, 2008) (Ellis II). There we assessed the sufficiency of the
proceedings in Ellis I in light of the considerations identified in Tillman
and concluded that “we are satisfied the no-merit procedure warrants
the application of the bar in this case.”
Ellis II, No. 2007AP1080, ¶4.
Ellis II established the law of the case, and we must abide by
that decision in all subsequent proceedings.
See
¶7 Ellis claims that both he and the circuit court failed to identify previously the issues that he now wishes to present. He offers this as a sufficient reason for serial litigation.
¶8 In fact, Ellis presented all of his current claims, or nearly
identical variants, in prior proceedings.
In Ellis I, we addressed why “it would lack arguable merit to
challenge trial counsel’s failure to file a suppression motion,” and why “challenging
the bind-over decision would lack arguable merit.”
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] As the State points out, Ellis’s trial counsel did move for a directed verdict. The circuit court denied the motion, concluding that the State presented sufficient evidence for the trier of fact to find Ellis guilty beyond a reasonable doubt.