COURT OF APPEALS DECISION DATED AND FILED February 1, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Parrish Christopher Payne, 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. Parrish Christopher Payne, pro se, appeals from an order denying his motion for postconviction relief. The trial court denied Payne’s motion on grounds that it was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We agree and affirm on that basis.
BACKGROUND
¶2 A jury found Payne guilty of kidnapping, as party to a crime, and first-degree sexual assault, both directly and as party to a crime. On direct appeal, Payne argued: (1) there was insufficient evidence to support the jury’s verdicts; (2) the trial court erroneously excluded evidence of the victim’s subsequent acts; and (3) the trial court erroneously denied Payne’s postconviction motion without first holding a Machner[1] hearing concerning Payne’s allegations that his trial counsel insufficiently questioned a juror during voir dire, failed to use a peremptory strike to remove that juror, failed to effectively cross-examine the victim and failed to adequately discuss with Payne his right to testify. See State v. Payne, No. 97-1362-CR, unpublished slip op. at 2, 15 (Wis. Ct. App. May 5, 1998). We rejected his arguments and affirmed. Payne’s petition for review was denied by the Wisconsin Supreme Court.
¶3 According to Payne, he subsequently sought federal habeas corpus relief with the assistance of an attorney. Payne asserts that his petition was summarily dismissed by the district court on procedural grounds in 2001, and that his subsequent pro se appeal to the Seventh Circuit was unsuccessful.[2]
¶4 In 2003, Payne filed a pro
se motion for postconviction relief in the circuit court. Citing
¶5 In 2009, Payne filed the pro se motion for postconviction relief that is at issue in this appeal. Payne’s motion alleged that his postconviction counsel provided ineffective assistance when he failed to assert that: (1) Payne’s right to due process was violated when the car used to abduct the victim was destroyed prior to trial; (2) Payne’s right to an impartial jury was violated when the court failed to inquire about a newspaper article the jury might have seen; (3) Payne’s sentences constituted cruel and unusual punishment; and (4) trial counsel was ineffective for failing to assert multiplicity and double jeopardy objections to the two sexual assault charges.
¶6 The trial court denied Payne’s postconviction motion without a hearing, concluding that Payne’s motion was barred by Escalona-Naranjo because he did not raise these issues in his 2003 pro se postconviction motion. This appeal follows.
DISCUSSION
¶7 The trial court denied Payne’s postconviction motion on
grounds that it was procedurally barred.
Whether Escalona’s procedural bar applies to a postconviction claim is
a question of law entitled to independent review. State v. Tolefree, 209
¶8 Applying that independent review, we agree with the trial
court that Payne’s postconviction motion is procedurally barred. A defendant cannot raise an argument in a
subsequent postconviction motion that was not raised in a prior postconviction
motion unless there is a sufficient reason for the failure to allege or
adequately raise the issue in the original motion. Escalona-Naranjo, 185
¶9 As the State points out, a defendant can attempt to overcome
the Escalona-Naranjo
bar by arguing that an issue was not raised due to postconviction counsel’s
ineffectiveness. See Rothering, 205
¶10 In sum, regardless of whether Payne could or should have raised
on direct appeal the issues he raised in his 2009 postconviction motion, he is
now procedurally barred from raising these new issues related to postconviction
counsel’s effectiveness, absent a sufficient reason for failing to raise the
issues in his previous pro se
postconviction motion. See Escalona-Naranjo, 185
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.