State v. Cornelius R. Maddox

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COURT OF APPEALS DECISION DATED AND FILED August 14, 2007 David R. Schanker Clerk of Court of Appeals Appeal No. NOTICE 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. Cir. Ct. No. 1996CF960079 2006AP2616 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. CORNELIUS RAMON MADDOX, DEFENDANT-APPELLANT. APPEAL from an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed. Before Curley, P.J., Wedemeyer and Kessler, JJ. ¶1 PER CURIAM. Cornelius Ramon Maddox appeals from an order denying his motion for postconviction relief. The issue is whether the alleged ineffective assistance of trial, postconviction and appellate counsel constitutes a sufficient reason to entertain a postconviction motion seeking plea withdrawal or No. 2006AP2616 to reinstate Maddox s direct appeal rights. We conclude that Maddox has not alleged a sufficient reason to overcome the procedural bar of State v. Tillman, 2005 WI App 71, ¶¶25-27, 281 Wis. 2d 157, 696 N.W.2d 574, by alluding to his unfamiliarity with the law and the alleged ineffective assistance of counsel. Therefore, we affirm. ¶2 Maddox pled guilty to one count of armed robbery and two counts of false imprisonment while armed, as a party to each crime. The trial court imposed a forty-three-year aggregate sentence. Maddox, then represented by counsel, moved for postconviction plea withdrawal pursuant to WIS. STAT. RULE 809.30 (amended July 1, 1996). The trial court summarily denied the motion. ¶3 Appellate counsel filed a no-merit appeal. Maddox elected not to respond to appellate counsel s no-merit report. Following our independent review of the record, we affirmed the judgment of conviction and the postconviction order denying Maddox s plea withdrawal motion. See State v. Maddox, No. 97-0690CRNM, unpublished slip op. at 1-2 (Wis. Ct. App. July 21, 1997). In our order, we confirmed that Maddox had not alleged why he would have pled differently or preferred proceeding to trial on the six counts charged, or how he was prejudiced by the claimed deficiencies in the plea colloquy. See id. at 2-4. ¶4 Almost ten years later, Maddox filed a second motion for plea withdrawal, this time proceeding pro se, pursuant to WIS. STAT. § 974.06 (200506).1 He claimed that he raised different issues than he raised previously. These new issues are closely related to if not the same as those issues he raised ten 1 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted. 2 No. 2006AP2616 years earlier. Maddox also alleged in this motion, that he is entitled to plea withdrawal predicated on the ineffective assistance of trial, postconviction and appellate counsel. negotiations. He claimed that his trial counsel misled him during plea He claimed that postconviction counsel was ineffective in representing him on the previous plea withdrawal motion. He claimed that appellate counsel was ineffective for not properly pursuing the same plea withdrawal issues in a conventional appeal that she pursued in postconviction proceedings. The trial court summarily denied the motion as procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) and Tillman, which extended Escalona s procedural bar to no-merit appeals. See Tillman, 281 Wis. 2d 157, ¶27. Maddox appeals. ¶5 To avoid Escalona s procedural bar, Maddox must allege a sufficient reason for failing to have previously raised all grounds for postconviction relief on direct appeal or in his original postconviction motion. See Escalona, 185 Wis. 2d at 185-86. Whether Escalona s procedural bar applies to a postconviction claim is a question of law entitled to independent review. See State v. Tolefree, 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997). We extended Escalona s applicability to postconviction motions following no-merit appeals. See Tillman, 281 Wis. 2d 157, ¶27. Before applying Tillman s procedural bar, however, both the trial and appellate courts must pay close attention to whether the no merit procedures were in fact followed. In addition, the court must consider whether that procedure, even if followed, carries a sufficient degree of confidence warranting the application of the procedural bar under the particular facts and circumstances of the case. Id., ¶20 (footnote omitted). [A] prior no merit appeal may serve as a procedural bar to a subsequent 3 No. 2006AP2616 postconviction motion and ensuing appeal which raises the same issues or other issues that could have been previously raised. Id., ¶27. ¶6 Maddox alludes to the ineffective assistance of his various counsel during plea negotiations and in his first postconviction motion, coupled with his unfamiliarity with the law, for failing to respond to the no-merit report as his reasons for having failed to previously or adequately raise these new albeit related issues.2 Even if we were to construe these reasons as responding to the sufficient reason requisite of Tillman, they are insufficient to overcome its procedural bar. See Tillman, 281 Wis. 2d at 157, ¶¶25-27. ¶7 Insofar as his alleged unfamiliarity with the law is concerned, many defendant-appellants in a no-merit appeal are not knowledgeable in the law. They are eligible for appointed counsel, and frequently characterize counsel s pursuit of a no-merit appeal as ineffective assistance. These are precisely the reasons that the defendant-appellant need only identify his or her criticisms in a no-merit response, rather than being obliged to comply with the formal briefing rules governing an adversary appeal. See Anders v. California, 386 U.S. 738, 744-45 (1967); Tillman, 281 Wis. 2d 157, ¶¶16-18. These are precisely the reasons the 2 The ineffectiveness of appellate counsel is not properly raised in a postconviction motion pursuant to WIS. STAT. § 974.06, but must be raised in a habeas corpus petition filed in the same appellate court that decided the underlying appeal. See State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992). Maddox also contends that Page v. Frank, 343 F.3d 901, 907 (7th Cir. 2003), excuses him from Escalona s procedural bar. See Page, 343 F.3d at 907. Maddox is mistaken. Page explains that Escalona s procedural bar does not affect the availability of federal habeas corpus relief to state prisoners; it does not address Escalona s applicability to issues raised by state prisoners seeking collateral review of state court judgments, as is the case here. See Page, 343 F.3d at 907. 4 No. 2006AP2616 appellate court affords a more comprehensive review to a no-merit appeal, where we independently review the record to search for every arguably meritorious issue, than we afford a conventional appeal, where we only decide the issues appellant properly raises and adequately briefs. See Tillman, 281 Wis. 2d 157, ¶¶15-18. As we explained: This procedure demonstrates that, in some facets, the no merit procedure affords a defendant greater scrutiny of a trial court record and greater opportunity to respond than in a conventional appeal. As with a conventional appeal, appellate counsel examines the trial court record for potential appellate issues. However, the defendant in a conventional appeal does not receive the benefit of a skilled and experienced appellate court also examining the record for issues of arguable merit. Instead, the court s role in a conventional appeal is limited to addressing the issues briefed by appellate counsel. Nor, as a general rule, is the defendant in a conventional appeal permitted to separately weigh in by raising objections to counsel s brief or by raising additional issues [as is permissible in a no-merit response]. Id., ¶18. Consequently, Maddox s unfamiliarity with the law resulting in his failure to respond to the no-merit report does not distinguish him from many other defendant-appellants in no-merit appeals and is not a sufficient reason to overcome Tillman s procedural bar. ¶8 Insofar as counsels alleged ineffectiveness is concerned, we independently examined the record, most specifically the transcript of the guilty plea hearing, which essentially belied most of Maddox s allegations of ineffectiveness against trial counsel, on whose ineffectiveness the claims against postconviction and appellate counsel depend. We independently concluded that further proceedings to challenge Maddox s guilty pleas would lack arguable merit. See Maddox, No. 97-0690-CRNM, unpublished slip op. at 4. Maddox s reasons 5 No. 2006AP2616 for failing to raise his plea withdrawal issues previously are not sufficient to supersede our previous decision rejecting similar issues. ¶9 We conclude that in Maddox s no-merit appeal, the proper procedures were followed and that the outcome carried a sufficient degree of confidence to warrant applying Tillman s procedural bar to Maddox s current postconviction motion attempting to re-litigate plea withdrawal. In Tillman, we contemplated the lack of knowledge of the law of a defendant-appellant in a nomerit appeal. See also Anders, 386 U.S. at 744-45. Apart from his unfamiliarity with the law and counsels ineffectiveness, Maddox has not explained his ten-year delay in raising these plea withdrawal and derivative ineffective assistance issues, many of which we have already litigated. Consequently, he has not overcome Tillman s procedural bar. By the Court. Order affirmed. This opinion will not be RULE 809.23(1)(b)5. 6 published. See WIS. STAT.

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