District I
June 26, 2015
To:
Hon. M. Joseph
Donald
Circuit Court
Judge
Children’s Court
Center
10201 W. Watertown
Plank Rd.
Wauwatosa, WI
53226
John Barrett
Clerk of Circuit
Court
Room 114
821 W. State
Street
Milwaukee, WI
53233
Karen A. Loebel
Asst. District
Attorney
821 W. State St.
Milwaukee, WI
53233
Michael C. Sanders
Assistant Attorney
General
P.O. Box 7857
Madison, WI
53707-7857
Antwan D. Robinson
385886
Redgranite Corr.
Inst.
P.O. Box 925
Redgranite, WI
54970-0925
You are hereby
notified that the Court has entered the following opinion and order:
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State of
Wisconsin v. Antwan D. Robinson (L.C. #2002CF1942) |
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Before Kessler and Brennan,
JJ., and Thomas Cane, Reserve Judge.
Antwan D. Robinson appeals the circuit court’s order
denying his motion for postconviction relief under Wis. Stat. § 974.06 (2013-14).[1] He argues that: (1) his trial counsel was constitutionally
ineffective because he did not challenge the victim’s identification of him in
a photo lineup; (2) his trial counsel was constitutionally ineffective because
he did not object when the trial court allowed a police officer to testify
about a conversation with an unavailable witness; and (3) his postconviction
counsel was ineffective for failing to raise these issues during Robinson’s
direct appeal. After reviewing the
briefs and record, we conclude this case is appropriate for summary
disposition. See Wis. Stat. Rule
809.21. We affirm.
In 2002, Robinson was convicted of three counts of
armed robbery with threat of force and one count of false imprisonment with use
of a dangerous weapon, all as a party to a crime. After conviction, Robinson filed a
postconviction motion to withdraw his no-contest plea. After two hearings on the motion, the circuit
court denied it. On appeal, we affirmed
the order denying the motion. In 2006,
Robinson moved to vacate the DNA surcharge and a portion of the restitution
ordered at sentencing. The circuit court
denied the motion as to restitution, but granted the motion to vacate the DNA
surcharge.
In 2011, Robinson again moved for postconviction
relief, arguing that he received ineffective assistance of trial counsel
because his lawyer did not challenge the victim’s identification of him in a
photo lineup made when counsel was not present and did not object when the
trial court allowed a police officer to testify during the preliminary hearing
about what an unavailable witness told police.
Robinson also argued that he received ineffective assistance of
postconviction counsel because his lawyer should have argued that he received
ineffective assistance of trial counsel during Robinson’s direct appeal. The circuit court denied the motion,
concluding that Robinson’s claims were barred by State v. Escalona-Naranjo,
185 Wis. 2d 168, 517 N.W.2d 157 (1994).
Robinson appealed, but his appeal was dismissed because Robinson did not
pay the filing fee or file a petition for waiver of fees.
“A matter once litigated may not be relitigated in a
subsequent postconviction proceeding no matter how artfully the defendant may
rephrase the issue.” See State
v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App.
1991). Robinson is procedurally barred
from raising his current claims because he already raised these exact same
issues—in some instances word for word—in his 2011 postconviction motion.
Even if Robinson’s claims were not barred, his claims
would fail on the merits. Robinson
contends that his trial counsel was ineffective for not objecting to a photo
lineup that occurred when counsel was not present. However, Robinson concedes in his appellant’s
brief that he “cannot demonstrate that the array may have been unduly
suggestive or improper.” Moreover, he presents
no cogent argument explaining why counsel was ineffective for not raising a
claim that Robinson concedes cannot be proven.
Robinson also argues that his counsel should have
objected when the trial court declared a witness unavailable at the preliminary
hearing and allowed a police officer to testify about what the witness told him. According to the lawyer for the witness, the
witness intended to take the Fifth Amendment and refuse to testify on the grounds
that doing so might incriminate him. Robinson
fails to adequately explain why his
lawyer should have objected to the witness being declared unavailable in light
of these circumstances. As for
Robinson’s claim that his postconviction counsel should have raised the issue
of ineffective assistance of trial counsel on direct appeal, failing to raise arguments
that do not have merit does not constitute ineffective assistance of
counsel. See State v. Harvey, 139
Wis. 2d 353, 380, 407 N.W.2d 235 (1987).
IT IS ORDERED that the order of the circuit court is summarily affirmed.
Diane M. Fremgen
Clerk of Court of Appeals