On Tuesday, the Court of Appeals published their decision in State v. Moua, 2012-AP-1859, an appeal from the third round of Moua’s post-conviction litigation (and his second 974.06 motion). The Court held that, to the extent Moua’s arguments as to his incapacity were new, he had failed to provide a “sufficient reason” for not raising them in earlier postconviction litigation. It also found that, to the extent they arguments were previously raised, they were barred because they had already been litigated.
The Court of Appeals’ denial from Moua’s 2006 pro se motion explains the issue succinctly:
¶8 “[D]ue process for a convicted defendant permits him or her a single appeal of [a] conviction and a single opportunity to raise claims of error ….” State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 343, 576 N.W.2d 84 (Ct. App. 1998). A defendant cannot raise an argument in a second postconviction motion that was not raised in a prior postconviction motion unless there is a sufficient reason for the failure to allege or adequately raise the issue in the original motion. Escalona-Naranjo, 185 Wis. 2d at 181-182. A defendant must “raise all grounds regarding postconviction relief in his or her original, supplemental or amended motion.” Id., 185 Wis. 2d at 185; see also WIS. STAT. § 974.06(4) (“Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived … in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion,” absent sufficient reason.).
[A] criminal defendant [is] required to consolidate all postconviction claims into his or her original, supplemental, or amended motion. If a criminal defendant fails to raise a constitutional issue that could have been raised on direct appeal or in a prior § 974.06 motion, the constitutional issue may not become the basis for a subsequent § 974.06 motion unless the court ascertains that a sufficient reason exists for the failure either to allege or to adequately raise the issue in the appeal or previous § 974.06 motion.
In other words, a Wisconsin criminal defendant gets one bite at the trial apple, and one bite at the appeal apple. If he wants a second bite at the appeal apple, he has to give new arguments, as well as a “sufficient reason” for having not raised those new arguments before.