When a person who has been convicted of a serious crime learns that the Wisconsin Supreme Court has denied his or her petition for review, it can be very demoralizing. However, it need not be. As will be explained below, there are several procedures that may be used to continue to litigate the issues. First, there is the procedure provided for by Sec. 974.06, Stats., which permits a defendant who is still in custody to file a motion in the circuit court raising a constitutional or jurisdictional issue that has not been raised in his original appeal. Secondly, there is the federal habeas corpus procedure that will allow a defendant who is still in custody to continue to litigate a constitutional issue that he has raised in the state courts, where he has exhausted his state appellate remedies.
A Motion Pursuant to Sec. 974.06, Stats.
Sec. 974.06, Stats. provides in part, "After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under Sec. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."
This section does not provide carte blanche for a defendant to relitigate issues, or to raise new issues. Rather, in order to file a motion under Sec. 974.06, Stats., the person must: (1) still be in custody (that is, in prison or on extended supervision; (2) the issue raised must be either constitutional in nature, relate to the court's jurisdiction, or allege that the sentence was illegal; (3) the issue must not have been raised in the defendant's original appeal; and, (4) the defendant must allege good cause for having failed to raise the issue in his original appeal.
The vast majority of Sec. 974.06, Stats. motions allege a constitutional violation, most commonly ineffective assistance of trial counsel. The "good cause" for having failed to raise the issue in the original appeal is commonly alleged to be that postconviction/appellate counsel failed to raise this issue in the appeal. Plainly, this section will help only a fairly small number of defendants, but the situation is not as rare as it might seem.
The motion is filed in the circuit court that entered the conviction, and it is filed under the case number of the conviction. As the statute provides, such motions are considered to be part of the original action.
If a Sec. 974.06, Stats. motion is denied, the defendant has the right to appeal the order to the court of appeals. The civil rules of appellate procedure are followed. That is, the notice of appeal must be filed within ninety days of the entry of the order denying the motion (forty-five days if written notice of entry of judgment is served within twenty-one days after the order is entered).
Federal Habeas Corpus
If the defendant has raised a constitutional issues in the state appellate court, and he has exhausted his state appellate remedies, he may continue to litigate the issue in the federal courts by filing a "federal habeas corpus petition." The procedure for challenging state court convictions in federal court is governed by 28 USC 2254. In order to be entitled to relief, the petition must demonstrate that: (1) the defendant is still in custody; (2) the conviction was obtained in violation of the defendant's federal constitutional rights; and, (3) the issue was fully litigated in the state appellate system and the defendant has exhausted his state appellate remedies. This, admittedly, is a very general description of the procedure. The federal habeas corpus procedure has become exceedingly complicated. For example, the defendant may file only one habeas corpus petition unless the court grants him permission to file a second or subsequent petition. There are numerous other exceptions and procedural bars provided for by the law.
Perhaps the most difficult facet of the law is that the petition must be filed within one year of the date that the defendant exhausts his state court appellate remedies (usually the date on which the state supreme court denies the defendant's petition for review). Again, this is a general statement. There are a number of events that may toll the running of the time limit, and determining the one year period can be very complicated.
Thus, even though you have unsuccessfully appealed your state court conviction, all may not be lost. But the post-appellate procedures are complicated, and a defendant should not try to navigate his way through the process without counsel.
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