on review of unpublished decision; case activity
§ 974.06 Motion – Serial Litigation Bar
Issue (composed by on Point)
Whether, following unsuccessful direct appeal, a motion raising a “non-constitutional” issue (propriety of DNA surcharge) operates as a “serial litigation” bar such that a subsequent § 974.06 motion alleging ineffective assistance of counsel is procedurally barred.
Starks was convicted of first-degree reckless homicide sentenced to 55 years: 36 years’ initial confinement, 19 years’ extended supervision. On direct appeal, the court affirmed in an unpublished decision. He then filed a pro se § 974.06 motion alleging ineffective assistance (of both trial and appellate) counsel. The motion was dismissed January 4, 2010, for noncompliance with local rules (don’t ask), and on January 6 Starks filed a pro se motion to vacate his DNA surcharge. He refiled the § 974.06 on January 19, which the circuit court denied shortly thereafter. Starks appealed, and the court of appeals imposed the following procedural bar:
¶6 Unlike the circuit court, we decline to reach the merits of the postconviction motion.[2] Prior to this Wis. Stat. § 974.06 motion, Starks filed a different postconviction motion seeking to vacate his DNA surcharge. The alleged ineffective assistance of postconviction counsel might explain why the issues in the current motion were not raised prior to the direct appeal. Ineffective assistance of counsel however, does not explain why the issues in the current § 974.06 motion were not raised at the time of Starks’s previous pro se motion. That is, under Escalona, the § 974.06 motion claiming ineffective assistance of postconviction and trial counsel is procedurally barred because the issues could have been raised at the same time as the motion to vacate the DNA surcharge.
¶7 In his reply brief, Starks assert that the DNA motion was meant simply to supplement the Wis. Stat. § 974.06 motion he filed in December. He submits that he was unaware the December motion was rejected as noncompliant until he mailed the DNA motion, and contends that we should consider the timing of his motions to avoid any procedural bars. We are, however, limited to the four corners of the motion, see State v. Love, 2005 WI 116, ¶27, 284 Wis. 2d 111, 124, 700 N.W.2d 62, 69, and Starks does not show his § 974.06 motion contained the same explanation. Indeed, Starks’s argument underscores the very point of Escalona: finality in litigation, not successive motions and appeals.[3] See id., 185 Wis. 2d at 185, 517 N.W.2d at 163–164.
At least one argument against a procedural bar here is probably as follows. Section 974.06 expressly limits such motions to constitutional or jurisdictional issues; Starks’ DNA surcharge challenge was neither constitutional nor jurisdictional in nature; therefore, that motion shouldn’t count for purposes of serial litigation.
