District I
March 17, 2015
To:
Hon. Daniel L. Konkol
Circuit Court Judge
Safety Building Courtroom, # 502
821 W. State Street
Milwaukee, WI 53233-1427
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
Marguerite M. Moeller
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Jimmie Sargent 91178
Oshkosh Corr. Inst.
P.O. Box 3310
Oshkosh, WI 54903-3310
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Jimmie Sargent |
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Before Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge.
Jimmie Sargent, pro se, appeals from a circuit court order denying his petition for a writ of habeas corpus and an order denying his motion for reconsideration. We conclude at conference that this matter is appropriate for summary disposition. See Wis. Stat. Rule 809.21(1) (2013-14).[1] We summarily affirm the orders.
This is Sargent’s fourth appeal. In his last appeal, we summarized the background facts:
A jury convicted Sargent of one count of child enticement, two counts of first-degree sexual assault of a child, and one count of second-degree sexual assault of a child. On June 5, 1997, the circuit court imposed four consecutive twenty-year sentences.
With the assistance of counsel, Sargent filed a postconviction motion contending that the circuit court erroneously exercised its sentencing discretion. The circuit court denied the motion, and Sargent pursued a direct appeal of his convictions pursuant to Wis. Stat. § 974.02 and Wis. Stat. Rule 809.30 (2007-08). This court summarily affirmed. See State v. Sargent, No. 1998AP1090-CR, unpublished slip op. (Wis. Ct. App. Dec. 27, 1999) (Sargent I). In 2000, Sargent filed a pro se postconviction motion pursuant to Wis. Stat. § 974.06, challenging his convictions and seeking a new trial. The circuit court denied the motion, and this court affirmed. See State v. Sargent, No. 2001AP0590, unpublished slip op. (WI App. Aug. 13, 2002) (Sargent II).
On April 16, 2009, Sargent filed the postconviction motion underlying this appeal. He asserted that the circuit court erroneously exercised its discretion by imposing consecutive rather than concurrent sentences. He also contended that new factors warrant sentence modification.
See State v. Sargent, No. 2009AP1221-CR, unpublished slip op. ¶¶2-4 (WI App Jan. 12,
2010) (Sargent III) (paragraph numbering and footnote omitted). Sargent III concluded: “[Sargent] offers no reason, much less a
sufficient reason, that he could not have raised all of his constitutional
challenges to his sentences during those earlier proceedings. Accordingly, he is procedurally barred from
pursuing any claims under Wis. Stat. §
974.06, in the instant litigation.” Id.,
¶13 (citing State v. Escalona-Naranjo, 185
On July 29, 2014, Sargent filed the petition for a writ of habeas corpus that is at issue in this appeal. He alleged that his postconviction counsel provided ineffective assistance during his direct appeal by failing to argue that Sargent was sentenced based on inaccurate information. The circuit court construed the petition as a Wis. Stat. § 974.06 postconviction motion.[2] It concluded that Sargent’s § 974.06 motion was barred by Escalona-Naranjo because Sargent’s latest allegations concerning postconviction counsel’s effectiveness could have been raised in his 2000 § 974.06 motion, which asserted other reasons that postconviction counsel was ineffective.
In a motion for reconsideration, Sargent asserted that his postconviction motion should not be procedurally barred because he was unaware of his claims when he filed a response to the no-merit report. His motion for reconsideration did not explain why Sargent did not raise his latest issue when he filed his pro se Wis. Stat. § 974.06 motion in 2000. The trial court denied the motion for reconsideration.
Wisconsin Stat. § 974.06(4) requires a prisoner to raise all grounds for postconviction relief in his or her original, supplemental, or amended motion or appeal. See Escalona-Naranjo, 185 Wis. 2d at 185. “[C]laims that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 postconviction motion absent a showing of a sufficient reason.” State v. Lo, 2003 WI 107, ¶44, 264 Wis. 2d 1, 665 N.W.2d 756 (emphasis added). Whether a § 974.06 motion is procedurally barred pursuant to Escalona-Naranjo is a question of law we review de novo. See State v. Tolefree, 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).
Sargent’s Wis. Stat. § 974.06 motion offered no reason—much less a sufficient reason—for not raising this issue in his first § 974.06 motion. On appeal, Sargent states that he was not aware of the issue at the time of the no-merit appeal, but he does not explain why he did not raise his latest issue when he filed his pro se § 974.06 motion in 2000. We agree with the circuit court that Sargent’s latest § 974.06 motion is procedurally barred. Therefore, we summarily affirm the orders.
IT IS ORDERED that the circuit court orders are summarily affirmed. See Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals
[1] All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
[2] Although Sargent does not explicitly argue that the circuit court erred in construing his petition to be a Wis. Stat. § 974.06 motion, he emphasizes that he chose to file a petition for habeas corpus. Courts look to the facts pleaded, not the document’s label, to determine whether relief is warranted. See bin-Rilla v. Israel, 113 Wis. 2d 514, 521, 335 N.W.2d 384 (1983). Sargent is, ultimately, alleging constitutional errors. The right to the effective assistance of counsel is a constitutional right. See Strickland v. Washington, 466 U.S. 668, 686 (1984). Thus, Sargent’s claim for relief is one that can be brought under Wis. Stat. § 974.06. As habeas corpus is not available if a petitioner has another remedy available, see State v. Pozo, 2002 WI App 279, ¶8, 258 Wis. 2d 796, 654 N.W.2d 12, the circuit court properly treated Sargent’s submission as a § 974.06 motion.