COURT OF APPEALS DECISION DATED AND FILED May 11, 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. Paul N. Streff, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Paul N. Streff, pro se, appeals from orders denying his motions for postconviction relief and for reconsideration. Because the claims are barred, we affirm.
BACKGROUND
¶2 Streff pled guilty to one count of second-degree reckless homicide as a habitual offender. The circuit court imposed the maximum term of imprisonment. Streff filed a postconviction motion with the assistance of an attorney. He argued that his trial lawyer provided ineffective assistance by failing to challenge the search of his home. The circuit court denied the claim, and Streff appealed. We affirmed. State v. Streff, No. 2003AP968-CR, unpublished slip op. (WI App Apr. 21, 2004) (Streff I).
¶3 Streff next filed a pro se motion for postconviction relief. He alleged that his trial lawyer performed ineffectively by failing to contest the allegation that he was a habitual offender and that the attorney who represented him during his direct appeal performed ineffectively in turn by failing to raise the issue. The circuit court denied Streff’s claims, and we affirmed. State v. Streff, No. 2004AP3190-CR, unpublished slip op. (WI App Nov. 23, 2005) (Streff II).
¶4 After we released our decision in Streff II, Streff filed a motion for sentence credit, then a petition for a writ of coram nobis, and then a “motion for a nunc pro tunc hearing.” The circuit court denied each request for relief.
¶5 Streff next filed the sequence of motions underlying the instant appeal. He brought a motion under Wis. Stat. § 974.06, challenging the search of his home, the determination that he was a habitual offender, and the effectiveness of his attorneys in regard to these issues. The circuit court denied the motion by order entered on March 3, 2009, stating that Streff raised the claims in prior litigation and could not raise them again. Ten days later, Streff brought motions seeking both sentence modification and sentence correction, grounding his claims for relief on his contention that he was improperly sentenced as a habitual offender. Additionally, he moved for reconsideration of the circuit court’s decision of March 3, 2009. On March 17, 2009, the circuit court denied Streff’s pending claims, explaining that it would not entertain successive motions seeking the same relief. This appeal followed.[1]
DISCUSSION
¶6 We addressed the issues that Streff raises in his current
litigation when we resolved Streff’s prior appeals. In Streff I, we concluded that Streff’s
home was not illegally searched and that Streff did not demonstrate ineffective
assistance by his trial attorney in regard to the search.
¶7 Streff, however, contends that he has advanced new issues,
including claims that: (1) he received
inadequate and improper notice of the habitual criminality allegation; and (2)
his sentence as a habitual offender is unlawful and must be vacated pursuant to
Wis. Stat. § 973.13. We have examined Streff’s submissions in
light of our prior decisions, and we do not agree that Streff has raised new
issues. Rather, he has cited different
statutes and formulated additional theories in support of the claims that we
previously rejected. His “attempts to
rephrase or re-theorize his previously-litigated challenge are of no avail.” See Witkowski,
163
¶8 Moreover, any new claims that Streff seeks to raise are
procedurally barred. A defendant must
raise all grounds for postconviction relief in the defendant’s first
postconviction motion or in the defendant’s direct appeal.
¶9 Streff believes that, because he cites Wis. Stat. § 973.13 in support of his claim for relief, his litigation is not governed by the procedural bar imposed by Escalona-Naranjo. He is wrong.
¶10 An exception to Escalona-Naranjo is applicable when a
defendant properly invokes Wis. Stat. § 973.13
to seek relief from faulty repeater sentences.
See State v. Mikulance, 2006
WI App 69, ¶¶13–14, 291
¶11 Streff also argues that the alleged ineffective assistance of
the attorney who represented him in the proceedings resolved by Streff
I constitutes a sufficient reason for his current litigation. This court has observed that, in some
circumstances, the ineffective assistance of a defendant’s postconviction
attorney may be sufficient to justify an additional motion for postconviction
relief. See State ex. rel Rothering v. McCaughtry, 205
¶12 We are satisfied that Streff has not demonstrated a sufficient
reason for failing to raise all of his current claims in the many motions that
he filed after we released our decision in Streff I. Accordingly, his
claims are barred.[3]
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Streff’s notices of appeal included his assertion that he appealed from a circuit court order entered in December 2008, denying Streff’s motion for a nunc pro tunc hearing. We determined that Streff’s appeal from the December 2008 order was untimely, and we dismissed that appeal for lack of jurisdiction. We concluded that our jurisdiction extends only to Streff’s appeals from the orders of March 3, 2009, and March 17, 2009.
[2] The
legislature classified second-degree reckless homicide as a Class C felony when
Streff committed the offense in 2001. See Wis.
Stat. § 940.06(1) (2001–02).
Class C felonies at that time carried a fifteen-year maximum term of
imprisonment, ten years of which could be imposed as initial confinement. Wis.
Stat. §§ 939.50(3)(c), 973.01(2)(b)3. (2001–02). Under the 2001 statutes increasing penalties
for habitual offenders, a maximum term of imprisonment greater than ten years
could be increased by not more than ten years of confinement if the offender’s
prior conviction was for a felony. Wis. Stat. §§ 939.62(1)(c),
973.01(2)(c)
(2001–02). The circuit court in this
case required Streff to serve twenty years of initial confinement and five
years of extended supervision, the maximum term of imprisonment permitted by
the governing statutory scheme.
[3] After
briefing was completed in this matter, Streff filed a letter containing
additional arguments in support of his contentions. We do not address issues raised for the first
time in a reply brief because the opposing party has no opportunity to
respond. See State v. Mata, 230