COURT OF APPEALS DECISION DATED AND FILED April 13, 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Shomas T. Winston, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Shomas T. Winston appeals pro se
from an order denying his claims for postconviction relief brought pursuant to Wis. Stat. § 974.06 (2007-08).[1] We affirm.
BACKGROUND
¶2 The
police arrested Winston after Corey T. Dace was shot and killed. Winston gave a custodial confession in which
he admitted that he shot Dace after robbing him in the parking lot of a check cashing
store. The State charged Winston with
first-degree intentional homicide and armed robbery with use of force. Winston filed a pretrial motion to suppress
his confession, but the circuit court denied the motion after a Miranda-Goodchild
hearing.[2] The case proceeded to trial, and a jury found
Winston guilty. The circuit court
imposed a life sentence for the homicide with eligibility for extended
supervision after forty years, and the circuit court imposed a concurrent
forty-year term of imprisonment for the armed robbery.
¶3 With
the assistance of appointed counsel, Winston challenged his conviction and
sentence in a postconviction motion and a direct appeal. He alleged that his trial counsel performed
ineffectively by failing to: (1)
subpoena an alibi witness; (2) inform Winston about the progress of the case;
(3) object when an African-American woman was struck from the jury for cause;
and (4) remove from the jury a person Winston knew as a substitute teacher
at his high school. State v. Winston, No.
2005AP923, unpublished slip op., ¶¶6, 12 (WI App June 27, 2006) (Winston
I). Winston also challenged the
sufficiency of the evidence and the circuit court’s exercise of sentencing
discretion.
¶4 Winston
next filed a pro se petition seeking
a writ of habeas corpus on the ground
that his postconviction and appellate attorney was ineffective in several
ways. We addressed the merits of
Winston’s contention that his appellate counsel was ineffective, and we denied
the claim. See State ex rel. Winston v. Pollard, No. 2008AP332-W, unpublished
slip op. at 3 (WI App Mar. 5, 2008) (Winston II). We denied on procedural grounds Winston’s
claims that his postconviction attorney performed ineffectively because such
claims must be launched in the circuit court, not the court of appeals. See
Winston
II, No. 2008AP332-W, unpublished slip op. at 4-5.
¶5 Winston returned to circuit court and filed the motion underlying this appeal. He alleged that his trial counsel was ineffective in three ways during the pretrial and trial proceedings. Winston asserted that his postconviction counsel was ineffective in turn by failing to raise two of the three potential challenges to trial counsel’s performance during the direct appeal process and by inadequately litigating the third claim. The circuit court denied Winston’s motion in its entirety, and this appeal followed.
DISCUSSION
¶6 Winston may not raise his two new claims of ineffective
assistance of trial counsel because these claims are procedurally barred by State
v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Pursuant to Escalona-Naranjo, a
defendant may not raise claims in a motion filed under Wis. Stat. § 974.06, that the defendant could have
raised in an earlier postconviction motion or direct appeal unless the
defendant provides a sufficient reason for not raising the claims previously. Escalona-Naranjo, 185
¶7 We assess claims of ineffective assistance of counsel applying
the two-element test in Strickland v. Washington, 466
¶8 We first examine Winston’s assertion that his postconviction
counsel was ineffective by failing to challenge trial counsel’s performance
during the Miranda-Goodchild hearing. “[A]t a Miranda-Goodchild hearing the issues
to be decided are the voluntariness of the [custodial] statements, the proper
giving of the Miranda warnings and the intelligent waiver of the Miranda
rights.”
¶9 Winston’s proposed challenge to trial counsel’s performance at the Miranda-Goodchild hearing lacks merit. Winston testified at the hearing and he acknowledged that, although he was seventeen years old, he had not yet completed the ninth grade. He also conceded that his school attendance “wasn’t all that good.” The circuit court accepted Winston’s admissions. The high school records Winston submitted to support his current claim do not contain any significant additional information. The records show low grades, not low intelligence. Winston’s unsatisfactory academic performance may have stemmed from any number of causes, including his truancy. Thus, the information in Winston’s high school records would have had little relevance and would not have added to the testimony offered during the suppression hearing. Because Winston’s proposed challenge to trial counsel’s performance at the suppression hearing is meritless, the claim is not stronger than the issues pursued by Winston’s postconviction counsel.
¶10 Winston next complains that his trial counsel conducted an ineffective cross-examination of a citizen witness at trial and that his postconviction counsel performed ineffectively by not pursuing the issue. This claim, too, is meritless.
¶11 Ruby Adams testified that she saw a “boy” in a hooded coat
robbing a man outside of the check cashing store on the day that Dace was
killed. During cross-examination, trial
counsel asked
¶12 Winston believes that his trial counsel should have asked
¶13 Winston failed to show that his postconviction counsel ignored
issues that were clearly stronger than those pursued on direct appeal. Because he has not demonstrated that his
postconviction counsel performed ineffectively in selecting the issues to raise
during the direct appeal process, he has not established a sufficient reason
for raising new claims that were not raised previously. Therefore, his new claims are barred. See
Escalona-Naranjo,
185
181-82.
¶14 Winston bases his final claim on an allegation that his trial
counsel was ineffective by allowing a person who formerly taught at his high
school to sit on the jury.
Postconviction counsel raised this issue in Winston I, complaining
that “a former teacher of Winston’s with whom Winston claimed he did not have a
good relationship, remained on the jury.”
Winston I, No. 2005AP923-CR, unpublished slip op. ¶4. We rejected Winston’s claim, holding that
“Winston was entitled to a fair and impartial jury, and he received such a
jury. Thus, his contention that his
attorney was ineffective for failing to strike this juror was properly denied
by the trial court.”
¶15 When a defendant alleges that postconviction counsel was
ineffective in challenging trial counsel’s effectiveness, the defendant cannot
prevail without establishing that trial counsel was, in fact, ineffective. See
State
v. Ziebart, 2003 WI App 258, ¶15, 268
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] See
Miranda v.
27
[3] Winston
submitted a booking photograph with his postconviction motion, and he argues
that the photograph shows that he is “a black male” whose skin is not “dark.” The booking photograph is completely
irrelevant. It does not disclose
[4] Were
we to address the claim that Winston’s postconviction counsel was ineffective
in challenging trial counsel’s performance during jury selection, we would deny
the claim as meritless. Winston believes
that his postconviction counsel should have offered documentary evidence to
prove that a juror knew Winston but he does not show that such evidence exists. Rather, he argues that “there may be
documentation” in his school’s records reflecting interaction between Winston
and the juror. This assertion does not
aid him. “A defendant must base a
challenge to counsel’s representation on more than speculation.” State v. Leighton, 2000 WI App 156,
¶38, 237