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COURT OF APPEALS
DECISION
DATED AND FILED
April 14, 2009
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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Eddie Charles Rogers,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: jeffrey
a. wagner, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Eddie Charles Rogers appeals
from a circuit court order denying his postconviction motion, nominally filed
pursuant to Wis. Stat. § 901.03(4)
(2007-08). The circuit court held that Rogers’s claims
were barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-182, 517 N.W.2d 157
(1994) (postconviction claims that could have been raised in prior
postconviction or appellate proceedings are barred absent defendant
articulating a sufficient reason for failing to raise the claims in the earlier
proceedings). On appeal, Rogers argues that because
his current postconviction claims are for “plain errors” that occurred prior to
his conviction, Escalona does not apply.
We disagree, and we affirm the order denying Rogers’s postconviction motion.
In 1992, a jury found Rogers guilty of first-degree intentional
homicide while armed with a dangerous weapon and an attempt of that same
offense. The circuit court imposed a
life sentence for the homicide and a concurrent twenty-five-year sentence on
the attempted homicide. The circuit
court also established 2032 as Rogers’s
parole-eligibility date. Rogers sought
postconviction relief and sentence modification under Wis. Stat. Rule 809.30 (1993-94), but the circuit court
denied Rogers’s
requests. Rogers appealed, and this court affirmed by
opinion dated April 19, 1994.
Approximately ten years later, Rogers filed a pro se petition for a writ of habeas corpus in this court
challenging postconviction counsel’s effectiveness for failing to challenge trial
counsel’s effectiveness. See State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992)
(to bring a claim of ineffective assistance of appellate counsel, a defendant
must petition the appellate court that heard the appeal for a writ of habeas
corpus). This court denied Rogers’s request for two
reasons. First, the issues raised in the
petition had been decided in Rogers’s appeal of
right, and Rogers
failed to demonstrate that postconviction and appellate counsel’s decision to
raise them in the way she did represented deficient performance or that he was
prejudiced by counsel’s decision to pursue the issues in the manner she
did. See
Strickland
v. Washington, 466 U.S.
668, 687 (1984) (to maintain an ineffective assistance of counsel claim, a
defendant must show that counsel’s performance was deficient and that this
deficient performance prejudiced the defense).
Second, the court noted that Rogers
had failed to establish that his ten-year delay in bringing the Knight
petition was reasonable.
Eighteen months later, Rogers filed another postconviction motion in
the circuit court, this time under Wis.
Stat. § 974.06 (2003-04) and State ex rel. Rothering v. McCaughtry,
205 Wis. 2d
675, 681, 556 N.W.2d 136 (Ct. App. 1996) (claims of ineffective assistance of
postconviction counsel on issues never preserved for appeal should be filed in
circuit court under § 974.06 or as petition for habeas corpus relief). The circuit court denied the motion and this
court affirmed on appeal. We noted that Rogers had not overcome Escalona’s
procedural bar to serial postconviction litigation by failing to articulate a
sufficient reason for failing to raise this issue in his prior postconviction
and appellate proceedings.
Rogers
then filed the postconviction motion that is the subject of this appeal, entitled
“Motion to Vacate the Conviction pursuant to S. 901.03(4), Stats.” Rogers argued that several
instances of “plain error” at trial warranted reversal of his conviction. He further argued that allegations of plain error
“supersede” Escalona’s procedural bar.
The circuit court disagreed and held that Escalona applied to bar Rogers’s new claims. Rogers
appeals. We conclude that the circuit
court was correct and that Rogers’s
claims are barred.
Escalona makes no exception for
claims that are simply designated by the movant as “plain error.” As the circuit court noted, to allow such an
exception would undercut the basis for Escalona and would allow claimants
to circumvent Escalona simply by couching their claims in terms of “plain
error.” In addition, we can see no basis
for simply allowing successive postconviction motions alleging “plain error”—or,
for that matter, any other type of error—without some explanation as to why the
claimant was unable to raise those claims in earlier proceedings. Here, Rogers
makes no attempt, either in his postconviction motion or in his briefs on
appeal, to articulate any reason for his inability to raise these “plain error”
claims in his earlier postconviction or appellate proceedings. Consequently, his motion was procedurally
barred by Escalona.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.