# State v. Escalona-Naranjo

> Wisconsin Supreme Court · June 22, 1994 · 185 Wis. 2d 168

URL: https://www.frixlaw.com/law-library/cases/9574184

## Case

- **Full name:** State of Wisconsin, Plaintiff-Respondent, v. Barbaro Escalona-Naranjo, Defendant-Appellant
- **Court:** Wisconsin Supreme Court
- **Decided:** June 22, 1994
- **Citations:** 185 Wis. 2d 168; 517 N.W.2d 157; 1994 Wisc. LEXIS 95
- **Precedential status:** Published
- **Opinion:** Dissent by Abrahamson
- **Judges:** Janine P. Geske
- **Cited by:** 341 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9574184

## How later opinions describe it (automated extraction)

- holding that WIS. STAT. § 974.06(4) requires a defendant to “raise all grounds regarding postconviction relief in his or her original, supplemental or amended motion. Successive motions and appeals, which all could have been brought at the same time, run counter to the design …
- holding that claims that could have been raised on direct appeal or in an earlier postconviction proceeding are barred from a subsequent WIS. STAT. § 974.06 motion absent a sufficient reason for failing to raise them earlier
- holding that § 974.04 movant may not raise issues that were or could have been raised earlier absent “sufficient reason” for failing to do so

## Opinion text

SHIRLEY S. ABRAHAMSON, J.
(dissenting). For 18 years applications for post-conviction relief under sec. 974.06, Stats. 1991-92, have been filed, litigated, and decided according to the precepts of Bergenthal v. State, 72 Wis. 2d 740 , 242 N.W.2d 199 (1976). Today the majority overrules Bergenthal . The majority is able to justify its abandonment of precedent only by misconstruing the statute, by making it appear that the *187 Bergenthal case was erroneously decided. On the contrary, Bergenthal was then and is now sound law.
The majority overrules Bergenthal for three reasons: 1) the Bergenthal court's alleged failure to interpret sec. 974.06(4) correctly and to appreciate the origins of sec. 974.06(4); 2) the Bergenthal court's supposed misreading of Loop v. State, 65 Wis. 2d 499 , 222 N.W.2d 694 (1974); and 3) Bergenthal's alleged inconsistency with the goal of "finality." None of these reasons for overturning an 18-year-old precedent withstands scrutiny. The majority fails to weigh the value of fairness against the goal of finality and abdicates its responsibility to protect federal constitutional rights.
h-1
The majority concludes that the Bergenthal court misinterpreted sec. 974.06(4) by allowing constitutional issues to be raised in a sec. 974.06 motion which could have been — but were not — raised on direct review. The majority's mistaken conclusion about Ber-genthal and sec. 974.06(4) is premised on its misinterpretation of sec. 8 of the Uniform Post-Conviction Procedure Act upon which sec. 974.06(4) is based. See majority opinion n.8.
The Bergenthal court knew that the origin of sec. 974.06(4) was the Uniform Post-Conviction Procedure Act. The Bergenthal court cited the Committee Comment to sec. 974.06. See Bergenthal, 72 Wis. 2d at 748, n.1 . The "Committee" referred to in Bergenthal is the 1967 Judicial Council Criminal Procedure Code Revision Committee (sometimes referred to as the Criminal Rules Committee) with which the court was very familiar. Indeed Justice Connor Hansen, the author of the Bergenthal opinion, attended at least one of the Committee's meetings "to discuss with the members the *188 Supreme Court's feeling on the Uniform Post-Conviction Act." 1 Providing post-conviction remedies was a major issue facing state courts in the late 1960s, and the court played a role in the Judicial Council draft.
Furthermore the Committee Comments, which the Bergenthal court obviously examined, clearly explain the source of sec. 974.06(4): "Sub. (4) is taken from the Uniform Post-Conviction Procedure Act and is designed to compel a prisoner to raise all questions available to him in one motion." 2 Thus Justice Connor Hansen's reference in Bergenthal to the Committee Comments demonstrates that the court was aware of the origins of sec. 974.06.
The drafters of the Uniform Act (and sec. 974.06(4)) assumed that prisoners collaterally attacking their convictions had already completed the direct appeal process (or brought a sec. 974.02 motion) or that the time for exercising that remedy had passed. 3 The Prefatory Note to the Uniform Act explains "What the Proposed Act Does" as follows: "It provides a single, *189 unitary, postconviction remedy to be used in place of all other state remedies (except direct review)." 11 U.L.A. 481 (Master Edition 1974). Sec. 1(b) of the Uniform Act expressly states that the post-conviction remedy is "not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction . . .." 11 U.L.A. 486 (Master Edition 1974).
Rather, the drafters of the Uniform Act focused on devising a fair method of barring prisoners from bringing multiple motions for post-conviction relief. Following a trial and appeal, a prisoner ordinarily would be entitled to one motion for post-conviction relief. Section 8 of the Uniform Act, codified in Wisconsin as sec. 974.06(4); attempted to limit prisoners to a single post-conviction motion, unless there was "sufficient reason" that a ground for relief was not asserted in the initial motion. 4
The majority opinion runs into trouble, I believe, because it treats direct appeals and motions under sec. 974.06 identically in interpreting sec. 974.06(4). They are not to be treated the same for purposes of sec. 974.06(4).
A sec. 974.06 motion and an appeal are two separate and distinct proceedings. State collateral review, provided for in Wisconsin under sec. 974.06, is the conceptual equivalent of federal habeas corpus — an *190 opportunity for a prisoner to challenge imprisonment, generally on constitutional grounds. States adopted collateral review procedures to avoid "[t]he specter of federal court orders freeing state convicts in the absence of adequate state remedies," as the United States Supreme Court expanded the scope of federal habeas corpus. 5 Such review can be an important supplement to a direct appeal.
With this distinction in mind, it is clear that sec. 974.06(4) and sec. 8 are not aimed at preventing a prisoner from first bringing a direct appeal (or a 974.02 motion) and then bringing a sec. 974.06 motion. Rather, sec. 974.06(4), and sec. 8 of the Uniform Act, are designed to prevent prisoners from bringing successive collateral attacks, that is successive sec. 974.06 motions challenging their convictions.
The language of sec. 974.06(4), which is substantially the same as sec. 8 of the Uniform Act, makes absolutely clear that it does not bar a sec. 974.06 motion from raising constitutional issues that could have been but were not raised on direct review. The statute reads as follows:
"All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, Tinless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion."
*191 The majority's error lies in equating sec. 974.06 motions with direct reviews (including 974.02 motions) in its reading of the first sentence of sec. 974.06(4), which mandates that all grounds available for relief under sec. 974.06(4) be raised in the "original, supplemental or amended motion." The majority reads this sentence as referring to both an appeal and a sec. 974.02 motion. See majority opinion at 185-186. Here's the error. The "original, supplemental or amended motion" referred to in this first sentence is the motion under sec. 974.06. 6
*192 The next sentence of sec. 974.06(4) sets forth three grounds which cannot be the basis for a sec. 974.06 motion: (1) Any ground that was finally adjudicated or was not raised in a prior sec. 974.06 motion; (2) Any ground that was knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence; and (3) Any ground that was knowingly, voluntarily and intelligently waived in any other proceeding the person has taken to secure relief. 7
Although a prisoner is thus barred under sec. 974.06 from relitigating in a sec. 974.06 motion an issue that was fully and fairly adjudicated and decided on the merits in a direct appeal, 8 nothing in the lan *193 guage of sec. 974.06 (or sec. 8 of the Uniform Act), the legislative history of sec. 974.06(4) (or the Uniform Act), or our cases supports the majority's conclusion that sec. 974.06(4) bars a prisoner from raising in a sec. 974.06 motion any issue that could have been raised in a direct appeal. 9 Section 974.06(4) bars the prisoner from raising in a subsequent sec. 974.06 motion issues that could have been raised in the initial sec. 974.06 motion, unless "sufficient reason" excuses the omission.
To further support this interpretation of sec. 8 of the Uniform Act (and therefore of sec. 974.06(4)), I turn to the American Bar Association (ABA) Standards Relating to Post-Conviction Remedies. As the majority opinion explains, majority opinion at 178, the Commissioners on Uniform State Laws worked closely with the American Bar Association Standards Committee in drafting the Uniform Act. Indeed the Commissioners *194 stated that the "impetus and pole star of this [1980] revision are the current ABA standards." 10 According to the 1967 and 1980 ABA Standards, except in case of abuse of process, claims advanced in post-conviction applications should be decided on their merits, even though they might have been, but were not, fully and finally litigated in prior stages of litigation. 11
In summary, contrary to the majority's position, the Uniform Post-Conviction Remedies Act, the origin of sec. 974.06(4), supports the court's approach in Ber-genthal. The majority's attempt to undercut the reasoning oiBergenthal fails because the majority does not distinguish between motions for relief filed pursuant to sec. 974.06(4) and direct appeals. The Bergenthal court did draw the necessary the distinction between the two and fully comprehended the essential role played by post-conviction collateral review. The Ber-genthal court held that "even though the issue [raised in this motion] might properly have been raised on appeal, it presents an issue of significant constitutional proportions and, therefore, must, be considered in this motion for post-conviction relief." Bergenthal, 72 Wis. 2d at 748 .
The majority's second mistake is its misreading of State v. Loop, 65 Wis. 2d 499 , 222 N.W.2d 694 (1974). *195 According to the majority opinion, Loop states (1) that if the prisoner does not bring an appeal or a sec. 974.02 motion then he can bring a sec. 974.06 motion on constitutional issues that he could have raised but failed to raise on appeal, and (2) that if the prisoner brings an appeal or a sec. 974.02 motion, he may not bring (except for sufficient cause) a sec. 974.06 motion on constitutional issues that he failed to raise. This is not what Loop says. Rather, Loop states that "[Tissues of constitutional dimension can be raised on direct appeal and can also be raised on 974.06 motion." Loop, 65 Wis. 2d at 502 .
The cases and texts discussing sec. 974.06 do not distinguish Loop as the majority does. See Robert J. Martineau and Richard R. Malmgren, Wisconsin Appellate Practice ch. 27, sec. 2706 (1978); David L. Walther, Patricia L. Grove, Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin sec. 19.6b (1993).
h-i I — l H-4
The majority's last argument supporting its decision to overrule Bergenthal is that" [w]e need finality in our litigation." Majority opinion at 186. Of course finality is very important. The drafters of sec. 974.06(4) and the Uniform Post-Conviction Procedure Act were attempting to ensure finality by allowing a prisoner to bring only one post-conviction motion after direct appeal. The comments of Bergenthal's author, Justice Connor Hansen, to the Judicial Council Committee reflect the court's concern with ensuring that a pris *196 oner receive "one chance" at post-conviction relief under sec. 974.06. 12
Concerned as it was about finality of litigation, the Bergenthal court nevertheless recognized that the goal of finality must be balanced against the need to ensure that significant constitutional claims receive a full inquiry on review under sec. 974.06. Finality is no more important today than it was 18 years ago; invoking the need for finality is certainly no justification for overruling the decision of a court that fully appreciated the issue.
As we weigh fairness and finality, we must remember that it is almost always the lawyer, not the client, who fails to raise an issue on direct review. I am aware of the important legal fiction that clients and lawyers are ordinarily treated as one under the law, but this concept is nevertheless a fiction. Even competent lawyers make mistakes. It seems to me fundamentally unfair to visit the mistakes of a lawyer on a client who is challenging the constitutionality of his conviction on the basis of ineffective assistance of counsel.
Section 974.06(4) ensures finality by ordinarily limiting prisoners to a single post-conviction motion. Moreover, in the states that have apparently adopted the majority's approach to motions for collateral relief, the litigation has merely shifted the court's attention from the merits of the constitutional claim to arcane procedural issues. 13 Rather than create a procedural morass, I would rather see courts deal with significant constitutional issues on their merits.
*197 Thus the majority's third reason for overruling Bergenthal withers under scrutiny. The court should not depart from precedent without sufficient justification, yet neither the state nor the majority offers any justification. The state cannot describe any existing difficulties under Bergenthal . It has pointed to no changes or developments in the law that undermine the rationale behind the decision. It has made no showing that the precedent has become detrimental to the administration of the justice system or to the coherence and consistency in the law. There is no reason to depart from 18-year-old precedent.
IV.
Finally, looking more broadly at the panoply of protections afforded constitutional rights, I would observe that one important consideration has changed since Bergenthal was decided: the role of state courts in upholding the federal constitutional rights of people convicted of state crimes is much greater today than it was 18 years ago. The year after Bergenthal was decided, the United States Supreme Court began to shift toward state courts much of the responsibility for protecting the constitutional rights of people convicted in state criminal courts. Wainwright v. Sykes, 433 U.S. 72 (1977) (overruling Fay v. Noia, 372 U.S. 391 (1963), applying state procedural default rules in federal habeas corpus cases under nearly all circumstances). Because the Court has treated federal habeas corpus as an extraordinary remedy in many ways inconsistent with federalism, it has increasingly emphasized the role and competence of state courts. 14 "The states pos *198 sess primary authority for defining and enforcing criminal law ... Federal intrusions into state criminal trials frustrate both the states' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Engle v. Isaac, 456 U.S. 107, 128 (1982). See also, Coleman v. Thompson, — U.S. —, 111 S. Ct. 2546 (1991) (denying habeas corpus to a death-sentenced prisoner because his lawyer had been three days late in filing a notice of appeal of a denial of state habeas corpus).
In light of these increasing limitations on the availability of the writ of federal habeas corpus, our responsibility as a state court to protect federal constitutional rights is ever greater. We must carefully consider our rules of criminal procedure, especially those which will act as procedural bars to collateral review in our courts and in the federal courts. Wainwright v. Sykes, 433 U.S. 72 (1977). For 18 years under Bergenthal , we have done a good job of providing an adequate state remedy to prisoners seeking review of significant constitutional claims on collateral review. Today, without justification, we abandon that course. We should not so abdicate our responsibility. For the reasons set forth, I dissent.
I am authorized to state that Chief Justice Nathan S. Heffernan joins this dissent.
Minutes of the Judicial Council Criminal Procedure Code Revision Committee, Nov. 17-18, 1969, in the bill drafting records to Laws of 1969, ch. 255.
1970 Wis. Annot. sec. 974.06; Laws of 1969, ch. 255, sec. 63 (sec. 974.06); sec. 974.06, Wis. West's Stats. Ann., Comments-L. 1969, c. 255, at p. 258 (1985).
This court has said: "A sec. 974.06 motion can be made only after the defendant has exhausted his direct remedies which consist of a motion for new trial and appeal .... The motion must not be used to raise issues disposed of by a previous appeal." Peterson v. State, 54 Wis. 2d 370, 381 , 195 N.W.2d 837 (1972).
Section 974.06(1) was amended in 1977 to specify that a sec. 974.06 motion can be brought only "[ajfter the time for appeal or post-conviction remedy provided in Section 974.02 has expired."
See Proceedings of the Committee of the Whole, Second Revised Uniform Post-Conviction Procedure Act, August 3, 1966, pp. 1-7, 33-43. As the presenter of the Act explained, section 8 has to do with finality. Prisoners seeking post-conviction relief "should have a full-blown inquiry once and for all, and . . . after that, except for an escape clause, which we have put into the Act, there shall not be and must not be repeated and frivolous excessive effort to seek review of a conviction."
Larry W. Yackle, Post-Conviction Remedies 2-3 (1981).
The very language of sec. 974.06(4) and sec. 8 of the Uniform Act states this point clearly, and the legislative history of the Uniform Act supports my understanding of the first sentence.
A comment during the commissioners' discussion of the Uniform Act illustrates that the first sentence of sec. 8 (and of sec. 974.06) relates only to a motion under the Uniform Act (and to a sec. 974.06 motion):
"Mr. Gibson: Mr. Chairman, I'd like to call to your attention a possible connotation that might be put on the first sentence, 'All grounds for relief available to an applicant under this Act must be raised in his original, supplemental, or amended application.' Some of them will take the position that they can file an original application and have a hearing on that, and later file an amended application. I think it might be well to resolve that ambiguity by stating 'must be raised in his original application, which application may be supplemented or amended.'
"Mr. Jenner: We have already said that.
"Mr. Gibson: Yes, I think you have, but I think that some of them will undoubtedly take the position — and by that I mean it can be construed — that you can file an amended application after a hearing on your original application.
"Mr. Jenner: That wouldn't be an amendment. That would be a new one.
*192 "Mr. Gibson: Your interpretation is proper, but my experience has been with these that they will take all kinds of different attacks against or in aid of different applications.
"Mr. Northan: May we take care of this by note, and suggest that we mean what we say? [Laughter]" Proceedings of the Committee of the Whole, Second Revised Uniform Post-Conviction Procedure Act, August 3,1966, p. 35 (emphasis added).
A critic of the Uniform Act objected on the grounds of finality. He approved that the Act "does prevent raising issues that a defendant has inexcusably failed to raise in a previous post-conviction proceeding or in the proceedings leading to the judgment of conviction." But he suggested that the "general thrust. . . should be to encourage — perhaps require — all then known and available defenses to be raised in the proceedings leading to conviction and in the appeal thereof." Proceedings in Committee of the Whole, Uniform Post-Conviction Procedure Act of the National Conference of Commissioners on Uniform State Laws, July 26 and 29,1980, at 8.
State v. Walberg, 109 Wis. 2d 96, 103 , 325 N.W.2d 687 (1982); State v. Roh, 104 Wis. 2d 77, 96 , 319 N.W.2d 631 (Ct. App. 1981); Beamon v. State, 93 Wis. 2d 215, 220 , 286 N.W.2d 592 (1979); Peterson. v. State, 54 Wis. 2d 370 , 195 N.W.2d 837 (1972); Howard Eisenberg, Post-Conviction Remedies in the 1970's, 56 Marq. L. Rev. 69 , 80 (1972).
The Commissioner's Comment to sec. 8 of the Uniform Act explains that this provision was adopted to mirror the "permissiveness" toward successive claims under the federal collateral relief statute required by the Supreme Court in Sanders v. United States, 373 U.S. 1 (1963). 11 U.L.A. at 528-29.
The Wisconsin court of appeals has held that when no identity of issues exists on a previous appeal and a present post-conviction motion, the motion should be heard, quoting Sanders' holding as follows: "[s]hould doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the [petitioner]." State v. Sharlow, 106 Wis. 2d 440, 444 , 317 N.W.2d 150 (Ct. App. 1982), aff'd, 110 Wis. 2d 226 , 327 N.W.2d 692 (1983).
In State v. Klimas, 94 Wis. 2d 288 , 288 N.W.2d 157 (Ct. App. 1979), cert. denied, 449 U.S. 1016 (1980), the court permitted a defendant to raise in sec. 974.06 post-conviction proceedings an issue which had not been raised on his earlier direct appeal.
Proceedings in Committee of the Whole, Uniform Post-Conviction Procedure Act of the National Conference of Commissioners on Uniform State Laws, July 26 and 29,1980, at 1.
American Bar Assn Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies, Standards 6.1 and 6.2 and Commentary (1967), and American Bar Assn, Standards for Criminal Justice, Standards 22-6.1,22-6.2 (vol. 5, 2d ed. 1980).
Minutes of the Judicial Council Criminal Procedure Code Revision Committee, Fri. Nov.17-18, 1969, in the bill drafting records of ch. 255, Laws of 1969.
See cases cited in the annotations to secs. 8 and 12 of the Uniform Act.
See Erwin Chemerinsky, Thinking About Habeas Corpus, 37 Case West. L. Rev. 748, 762-63 (1987).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9574184. Public record. Not legal advice.