COURT OF APPEALS
DECISION
DATED AND FILED
February 17, 2010
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.
Julius M. Covington,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: Daniel
l. konkol, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Julius M. Covington, pro se, appeals from an order that
denied his postconviction motion filed pursuant to Wis. Stat. § 806.07(1)(d) (2007-08). The circuit court determined that
§ 806.07 is inapplicable to a criminal defendant’s postconviction
challenges and that Covington’s claim is procedurally barred by State
v. Escalona-Naranjo, 185 Wis. 2d
168, 517 N.W.2d 157 (1994). We agree and
affirm.
BACKGROUND
¶2 A jury convicted Covington
in 1998 of six felony offenses. Covington appealed his
convictions with the assistance of appointed counsel. He claimed that the circuit court “violated
his Sixth Amendment right to counsel when it allowed [his] second attorney to
withdraw, and that [his] appointed stand-by counsel did not provide him the
constitutionally required assistance.” State
v. Covington,
No. 1999AP0536-CR, unpublished slip op. at 2 (WI App Apr. 27, 2000) (Covington
I). This court affirmed Covington’s
convictions. Id.
The supreme court denied Covington’s
petition for review.
¶3 Covington
next filed a petition for a writ of habeas
corpus claiming that he received ineffective assistance from his appellate
counsel. See State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992)
(to bring claim of ineffective assistance of appellate counsel, defendant must
petition the appellate court that heard the appeal for a writ of habeas corpus). He asserted that his appellate counsel’s
ineffective performance led this court “to reject his argument that the circuit
court violated his right to counsel by improperly allowing his appointed
attorney to withdraw.” See State ex rel. Covington
v. Kingston, No.2004AP1282-W, unpublished slip op. at 2 (WI App June
15, 2004) (Covington II). We denied
the petition. We explained that if
appellate counsel had made the argument that Covington pressed in his writ petition, we
would nonetheless have concluded that the circuit court properly permitted
trial counsel to withdraw. Id. at ¶¶4-5.
¶4 Covington
next filed a postconviction motion pursuant to Wis. Stat. § 974.06 (2005-06). He asserted that the circuit court erred by
permitting the State to amend the information by adding additional charges and
erred again by failing to re-establish Covington’s
waiver of his right to counsel after the State filed the amended
information. Covington argued that his postconviction
counsel performed ineffectively by not raising these claims of circuit court
error during the direct appeal process.
The circuit court denied Covington’s
motion, and we affirmed. See State v. Covington,
No. 2005AP1169, unpublished slip op. (WI App May 9, 2006) (Covington III).
¶5 Covington
then filed the postconviction motion underlying this appeal. He argued that the circuit court erroneously
exercised its discretion by improperly analyzing the claims he raised in his Wis. Stat. § 974.06 motion. He asserted that the circuit court’s order
underlying our decision in Covington III is therefore “void”
and should be vacated pursuant to Wis.
Stat. § 806.07(1)(d). The
circuit court denied the motion, and this appeal followed.
DISCUSSION
¶6 We begin by addressing Covington’s
efforts to secure postconviction relief by filing a motion under Wis. Stat. § 806.07. Application of a statute to a set of facts
presents a question of law that we review de
novo. State v. Bodoh, 226 Wis. 2d 718, 724,
595 N.W.2d 330 (1999).
¶7 Wisconsin Stat. § 806.07(1)
permits a court to relieve a party from a judgment, order, or stipulation for
enumerated reasons. According to Covington, § 806.07
provides a mechanism for him to seek relief from the adverse order that
disposed of his motion filed under Wis.
Stat. § 974.06. Covington is wrong. Section 806.07 applies in civil
actions. See State ex rel. Lewandowski v. Callaway,
118 Wis. 2d
165, 172, 346 N.W.2d 457 (1984). A
motion filed under § 974.06, however, “is a part of the original criminal
action, [and] is not a separate proceeding.”
See § 974.06(2). Covington
cannot use § 806.07 in a criminal action to challenge an order entered
pursuant to § 974.06.
¶8 Wisconsin Stat. § 974.06
is a potential avenue for criminal defendants who seek to raise constitutional
and jurisdictional claims after the time for an appeal has passed. See
id.
Although Covington insists that he did not file his
most recent postconviction motion under the authority of § 974.06, we may
look beyond the label that a prisoner applies to pleadings to determine if he
or she is entitled to relief. See bin-Rilla v. Israel,
113 Wis. 2d
514, 521, 335 N.W.2d 384 (1983). Here,
the substance of Covington’s contention is that
the circuit court’s improper analysis of his earlier claims denied Covington his
constitutional rights to counsel and to due process. Thus, Covington
raises the kind of constitutional claims that are cognizable under
§ 974.06. Nonetheless, Covington cannot pursue
his claims because they are procedurally barred.
¶9 “We need finality in our litigation.” Escalona-Naranjo, 185 Wis. 2d at
185. Therefore, “[a]ll grounds for
relief available to a person under [Wis.
Stat. § 974.06] must be raised in his or her original, supplemental
or amended motion.” See § 974.06(4).
Failure to raise a particular claim in the original motion or appeal,
however, does not necessarily prevent review of that claim. See
Escalona-Naranjo,
185 Wis. 2d
at 184. Rather, successive
postconviction motions raising additional claims under § 974.06 are barred
only if the defendant fails to allege a sufficient reason that the claim was
not asserted or was inadequately raised earlier. Escalona-Naranjo, 185 Wis. 2d at 184.
¶10 Covington
did not proffer a reason justifying serial litigation in his postconviction
motion. On appeal, he incorrectly maintains
that “the sufficient reason standard of Wis.
Stat. § 974.06(4) is inapplicable.”
Because Covington
did not offer the circuit court a sufficient reason for an additional
postconviction motion, the circuit court correctly determined that his claims
are barred.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.