State v. Tramell E. Starks

2013 WI 69

SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP425
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Tramell E. Starks,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 336 Wis. 2d 474, 801 N.W. 2d 348
(Ct. App. 2011 – Unpublished)

OPINION FILED: July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 9, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Kevin E. Martens

JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., CROOKS, J.,
dissent. (Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Tricia J. Bushnell, Caitlin Plummer, Lindsey E. Smith and law
student practitioners Michael Boshardy, R. Warren Beck, and
Joshua Jarrett, and Frank J. Remington Center, Madison, with
oral argument by Tricia J. Bushnell.

For the plaintiff-respondent, the cause was argued by Sarah
K. Larson, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Robert R. Henak and
Henak Law Office, Milwaukee, on behalf of the Wisconsin
Association of Criminal Defense Lawyers.
2
 2013 WI 69
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP425
(L.C. No. 2006CF450)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
JUL 12, 2013
Tramell E. Starks,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 MICHAEL J. GABLEMAN, J. This case began with the
murder of Lee Weddle in his apartment on a spring day in 2005.

A subsequent police investigation resulted in charges against
the petitioner in this case, Tramell E. Starks, for first-degree

intentional homicide as a party to a crime and possession of a
firearm by a felon. Following a jury trial, he was convicted of

the lesser-included offense of reckless homicide and the felon-
in-possession of a firearm charge.1 On direct appeal, Starks's

1
The Honorable William W. Brash, III, presiding.
 No. 2010AP425

convictions were affirmed. State v. Starks, No. 2008AP790-CR,

unpublished slip op. (Wis. Ct. App. Dec. 23, 2008) (Starks I).

¶2 Subsequently, Starks filed a motion pursuant to Wis.

Stat. § 974.062 (2011-12)3 with the circuit court,4 alleging that

the attorney who handled his appeal was ineffective for failing

to raise ineffective assistance of trial counsel claims. The

circuit court dismissed this motion for exceeding the local rule

on page length limit. Two days later, Starks filed a motion

with the circuit court to vacate his assessed DNA surcharge

pursuant to State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203,
752 N.W.2d 393 (henceforth "Cherry motion"). This motion was

denied as untimely. Starks then refiled his original § 974.06

motion with the circuit court, this time within the page limit

requirement. The circuit court rejected Starks's motion on the

merits and denied his request for an evidentiary hearing,

finding that he had not set forth a viable claim for relief.

¶3 The court of appeals affirmed the circuit court,

although on different grounds. State v. Starks, No. 2010AP425,

unpublished slip op. (Wis. Ct. App. June 14, 2011) (Starks II).

It held that Starks's second Wis. Stat. § 974.06 motion was

2
Wisconsin Stat. § 974.06 sets forth a procedure for a
defendant to collaterally attack his conviction. A collateral
attack is "[a]n attack on a judgment in a proceeding other than
a direct appeal . . . ." Black's Law Dictionary 298 (9th ed.
2009).
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version.
4
The Honorable Kevin E. Martens, presiding.

2
 No. 2010AP425

procedurally barred because Starks could have, but did not,

raise his ineffective assistance of counsel arguments in his

Cherry motion. Starks II, No. 2010AP425, ¶6.

¶4 At the outset we note that there is a procedural

problem in this case. Starks's Wis. Stat. § 974.06 motion,

which was filed with the circuit court, alleged ineffective

assistance of postconviction counsel. However, the attorney who

represented him after his conviction did not file any

postconviction motions and instead pursued a direct appeal. He

was thus not Starks's postconviction counsel but was rather his
appellate counsel. This is significant because claims of

ineffective assistance of appellate counsel must be filed in the

form of a petition for a writ of habeas corpus with the court of

appeals. State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540

(1992). By bringing his claim in the circuit court, Starks

pursued his case in the wrong forum. However, because the

erroneous filing deprived the circuit court of competency rather

than jurisdiction, our review of his case is appropriate.

¶5 Three issues are presented in this case. The first is

whether a Cherry motion to vacate a DNA surcharge is considered

a "prior motion" under § 974.06(4), such that a defendant is

required to raise postconviction ineffective assistance of

counsel arguments in his Cherry motion. The second issue we

address is the appropriate pleading standard a court must

utilize when a defendant alleges in a petition for writ of

habeas corpus that his appellate counsel was ineffective for

failing to raise certain arguments. Finally, we must determine
3
 No. 2010AP425

whether Starks received ineffective assistance of appellate

counsel.

¶6 With respect to the Cherry motion issue, we hold that

because sentence modification is a distinct procedure from Wis.

Stat. § 974.06 motions, a defendant is not required to shoehorn

ineffective assistance of postconviction counsel arguments into

a Cherry motion. As to the second issue, the proper pleading

standard, we hold that a defendant who argues in a habeas

petition that he received ineffective assistance of appellate

counsel because certain arguments were not raised must

demonstrate that the claims he believes should have been raised

on appeal were "clearly stronger" than the claims that were

raised. On the third and final question of whether Starks

received ineffective assistance of appellate counsel, we hold

that because the arguments Starks believes should have been

raised were not clearly stronger than the arguments that were

raised in his appeal, Starks's appellate attorney was not

ineffective. We therefore affirm the court of appeals.

I. FACTUAL BACKGROUND
¶7 On the afternoon of March 31, 2005, Milwaukee police

officers were dispatched to Lee Weddle's duplex apartment after
a man in the upper unit called 911 to report that he heard a

fight in the apartment beneath him followed by several gunshots.5
When police arrived, they found Weddle lying face down in a pool

of blood. He was pronounced dead shortly thereafter.
5
The facts leading up to Starks's trial are taken from the
criminal complaint and are not contested.

4
 No. 2010AP425

¶8 Five days after the shooting, police received an

anonymous tip that Starks was the killer, and that Antwon

Nellum, Wayne Rogers, and other unidentified people were present

during the shooting. The Milwaukee Police Department notified

its officers on April 15, 2005 that Starks was a suspect in

Weddle's murder. On April 20, Nellum was arrested for a

domestic violence matter and a parole violation. When

questioned about Weddle's murder, Nellum answered that he could

not disclose what had occurred because police could not

guarantee his safety and that of his family.

¶9 Starks voluntarily spoke with police on April 21, but

denied knowing Weddle, Nellum, or Rogers, or anything about the

murder. Nellum was then interviewed a second time on April 22.

This time he told the detectives that he had not been candid

during his first interview about what occurred on March 31

because he was afraid of Starks. During the second interview

Nellum said that he witnessed a fight between Starks and Weddle

and that he left because he thought that Starks "was going to do
something real crazy." Nellum said that as he was running out

of the apartment, he heard four or five gunshots.
¶10 Nellum was released from custody on July 7, 2005, and

found murdered in his car three weeks later, his vehicle riddled
with two dozen bullet holes.

¶11 Rogers was arrested on a drug offense and brought into
custody in August 2005. He was asked about Weddle's murder and

opined, "ya'll already know who killed him," although he claimed

he was asleep in the apartment when the shots were fired and
5
 No. 2010AP425

thus did not see the shooting. During a later interview,

however, his story changed. At that second interview, Rogers

noted that Weddle was his best friend and that he wanted to

"come clean" now that he was no longer scared of what Starks

would do to him if he told the truth. According to Rogers,

Starks was at the apartment complaining to everyone present

about comments Weddle had made regarding Starks's girlfriend.

When Weddle arrived, a confrontation between Starks and Weddle

ensued. Starks threw the first punch, but Weddle fought back.

After Weddle pulled out a clump of Starks's hair, Starks accused

him of "fight[ing] dirty." Starks was then handed a gun by

Mario Mills, turned around, and shot Weddle two times. Before

Rogers ran out of the apartment, he heard Weddle say, "man, you

killed me." Rogers then heard three or four more shots as he

was leaving the apartment. Later that day, Rogers called Mills

to ask if Weddle was all right. Starks, who was with Mills, got

on the phone and said, "F--- [Weddle]."

¶12 Starks and Mills were arrested and both charged with
first-degree intentional homicide as a party to a crime and

possession of a firearm by a felon. Pursuant to a plea
agreement, Mills admitted to the crime of furnishing a firearm

to a felon. Starks, however, pled not guilty as to both counts
and the case was tried to a jury in December 2006. The State

relied on the eyewitness accounts of three men who were present
when the shooting occurred: Rogers, Devin Ward, and Carvius

Williams. Rogers gave the same account of the murder at trial

as he did to police investigators during his second interview.
6
 No. 2010AP425

Ward and Williams provided testimony very similar to Rogers',

although Ward related that he left the apartment during the

fight and was walking towards his car when he heard shots fired.

¶13 The State also called Starks's cousin, Trenton Gray,

to the witness stand. Gray testified that on the day of

Weddle's murder Starks called him "in a state of distress." As

Gray recounted, "he was asking me if he can go to a place that I

had been previously in my life up in North Dakota, would he be

able to take refuge for some things that he believe[d] he had

done." When Gray asked Starks what was going on, he said, "I

don't know, cuz, I think I just murdered somebody." Gray also

testified that in a later conversation between the two about the

murder, Starks told him about the fight and that Mills provided

the gun to Starks. Gray further testified that Starks wanted to

kill Williams because Starks believed that Williams "was telling

on him about the murder" at a funeral.

¶14 The jury convicted Starks of the lesser-included

offense of first-degree reckless homicide and also the felon-in-
possession of a firearm charge. He was sentenced to a total of

36 years in prison followed by 19 years of extended supervision.
II. PROCEDURAL HISTORY

A. Starks's Direct Appeal
¶15 Following his convictions, the Public Defender's

Office appointed a new attorney, Robert Kagen, to represent
Starks in his postconviction matters. Kagen did not file any

postconviction motions with the circuit court and instead

pursued a direct appeal at the court of appeals, in which he
7
 No. 2010AP425

raised four arguments: (1) the circuit court should have granted

Starks's request for the lesser-included offense instruction on

second-degree reckless homicide; (2) a mistrial should have been

declared when a witness sequestration order was violated; (3)

the circuit court erred in not dismissing the case based on the

prosecution's failure to turn over information relating to the

identity of "Junebug;" and (4) the evidence was inconsistent and

therefore insufficient to support the verdict. In an

unpublished opinion, the court of appeals rejected each of

Starks's arguments and affirmed his convictions. Starks I, No.

2008AP790-CR.

¶16 On the issue of the jury instruction, Starks argued

that he was entitled to an instruction on second-degree reckless

homicide. As Starks pointed out, the only difference between

first- and second-degree reckless homicide is that the former

requires proof of the additional element of "utter disregard for

human life." Compare Wis. Stat. § 940.02 with Wis. Stat.

§ 940.06. Starks contended that because he shot Weddle below

the waist and expressed distress when he learned Weddle died, he

showed at least some regard for Weddle's life. Starks I, No.

2008AP790-CR, ¶13. As Starks fled from the apartment without

trying to help Weddle or calling 911, however, the court of

appeals held that Starks showed "a complete lack of concern for

Weddle's life," and thus was not entitled to a jury instruction

on second-degree reckless homicide. Id., ¶15.

¶17 The court of appeals also rejected Starks's claim that

a mistrial should have been granted when Gray and Rogers were
8
 No. 2010AP425

accidently transported to the courthouse in the same sheriff's

van, in violation of a sequestration order. When Starks made

this motion during his trial, the circuit court found that Gray

and Rogers had not discussed the substance of their testimony

and thus denied his request for a mistrial. The court of

appeals affirmed the circuit court's findings, and held that the

circuit court did not erroneously exercise its discretion in

denying Starks's motion for a mistrial. Id., ¶22.

¶18 The third issue Starks raised was that the circuit

court should have declared a mistrial because the prosecution

failed to disclose "Junebug's" identity. Junebug was the owner

of the cell phone that Gray used when he spoke to Starks on the

day of the murder. In August 2006, nearly three months before

trial, Starks asked the State to turn over the identity of

Junebug so that the defense could examine whether any calls were

made between Junebug's phone and Starks. The State turned over

Gray's cell phone directory, which included Junebug's number.

The prosecution submitted, though, that it did not know

Junebug's identity. At trial, Gray unexpectedly revealed

"Junebug" to be "Ray Gill." Starks moved for a mistrial on the

grounds that, because federal agents discovered Junebug's

identity in September 2006 (more than two months before Starks's

trial), that knowledge was imputed to the State such that it had

a duty to turn over the information. The circuit court found

that, in addition to providing Junebug's phone number, the State

also gave the defense documents which showed that the same phone

number was registered to Gill, but apparently neither the
9
 No. 2010AP425

defense nor the prosecution pieced the information together to

deduce that Junebug was Gill. As Starks possessed the same

information as the State, the circuit court denied the motion

for a mistrial. The court of appeals accepted this factual

finding and concluded that the circuit court was within its

discretion to deny Starks's motion. Id., ¶29.

¶19 Starks's final argument on direct appeal was that the

evidence was insufficient to support his convictions because of

inconsistencies in the testimony of various witnesses. For

example, Starks alleged that some of the witnesses who were in

the apartment at the time of the shooting gave conflicting

accounts as to who left first, whether people left before or

after the shooting, and whether Weddle was shot in the living

room or the kitchen. Id., ¶30. In reviewing the record, the
court of appeals concluded that "the jury could reasonably find

Starks guilty based on the evidence presented." Id. The court

noted that eyewitness testimony often produces some

inconsistencies and that in any event, "[t]he State's case was

strong." Id., ¶31.

¶20 After the court of appeals affirmed Starks's judgment

of conviction, this court denied his petition for review.

B. Starks's Wis. Stat. § 974.06 and Cherry Motions

¶21 On December 17, 2009, Starks, acting pro se, filed a

Wis. Stat. § 974.06 motion with the circuit court. Starks

alleged that Kagen was ineffective for failing to raise numerous

claims of ineffective assistance of trial counsel and that,

consequently, he was entitled to an evidentiary hearing on his
10
 No. 2010AP425

claims. The circuit court dismissed the motion on January 4,

2010, because it exceeded the Milwaukee County Circuit Court

local rule on page length limit. Two days later, on January 6,

2010, Starks filed a Cherry motion to vacate his DNA surcharge.6

This motion was denied on the grounds that a motion to modify a

sentence must be brought within 90 days after a sentence is

imposed.7 See Wis. Stat. § 973.19(1)(a). Following the

dismissal of his Cherry motion, Starks refiled his § 974.06

motion on January 19, 2010, this time within the local page

limit stricture.

¶22 The circuit court denied Starks's Wis. Stat. § 974.06

motion on the merits as "not set[ting] forth a viable claim for

relief with regards to trial counsel's performance." In

reaching that result, the court addressed each of Starks's

6
All defendants convicted of a felony are required to
provide a DNA sample to the State Crime Laboratory. State v.
Ziller, 2011 WI App 164, ¶9, 338 Wis. 2d 151, 807 N.W.2d 241,
review denied, 2012 WI 45, 340 Wis. 2d 544, 811 N.W.2d 820.
Unless the felony is sexual assault, the circuit court has
discretion in deciding whether to impose a $250 DNA surcharge on
the defendant. Id. In State v. Cherry, 2008 WI App 80, ¶10,
312 Wis. 2d 203, 752 N.W.2d 393, the court of appeals held that
a circuit court "must do something more than stat[e] it is
imposing the DNA surcharge simply because it can." At the very
least, a circuit court must demonstrate that it went through a
rational decision-making process. Id., ¶¶10-11. A motion
challenging the circuit court's discretion in imposing a DNA
surcharge is thus known as a "Cherry motion."
7
It appears from the record that Starks was challenging a
DNA surcharge that was imposed in 2001 as the result of a
previous conviction. The specifics of that conviction are not
germane to the present dispute.

11
 No. 2010AP425

claims individually.8 First, the circuit court dealt with

Starks's contention that Kagen should have raised trial

counsel's failure to investigate Junebug's identity and phone

records. In his motion, Starks averred that if trial counsel

had done so, he would have found that Starks and Gray did not——

contrary to Gray's testimony——speak on Junebug's phone on March

31, 2005. The circuit court found that Starks's assertions were

wholly conclusory, as he did not submit any phone records to

substantiate his claim. Starks next averred that his trial

counsel should have interviewed Dion Anderson, whom Starks says

was in the same sheriff's van as Gray and Rogers and allegedly

heard them conspiring to influence each other's testimony. The

court found that this claim too was factually unsupported and

conclusory.

¶23 Starks's third assertion was that his trial counsel

should have called Stanley Daniels (his father) and Mary

McCullum (his grandmother) as witnesses. Both of them submitted

affidavits attached to the Wis. Stat. § 974.06 motion saying
that they were at the funeral where Starks allegedly told Gray

that he wanted to kill Williams because Starks believed that
Williams "was telling on him about the murder." In their

affidavits, Daniels and McCullum swore that they did not see
Gray and Starks engaged in conversation on that day. The

8
In his Wis. Stat. § 974.06 motion, Starks alleged six
instances of ineffective assistance of trial counsel that Kagen
should have raised. Before this court, Starks raises only four
of those original claims. We therefore will not review the two
claims that were dropped.

12
 No. 2010AP425

circuit held that even if they testified to that effect, there

was not a "reasonable probability" of a different outcome at

trial, and Starks therefore could not satisfy the prejudice

prong of his ineffectiveness claim.

¶24 Finally, Starks argued that his trial counsel should

have called Mills as a witness, as he swore in another affidavit

attached to the motion that he did not see Starks shoot Weddle

and that Rogers was the only one at the apartment with a gun.

The circuit court found this claim "speculative," and noted that

Mills (originally Starks's co-defendant) made this statement

only after he pled no contest pursuant to a plea agreement and

was sentenced for furnishing a firearm to a felon, thus

undermining his credibility.

¶25 After losing at the circuit court Starks appealed. In

an unpublished per curiam opinion, the court of appeals

affirmed, albeit on procedural rather than substantive grounds.

Starks II, No. 2010AP425. The court declined to reach the

merits of Starks's appeal, holding instead that his Wis. Stat.

§ 974.06 motion was procedurally barred by this court's decision

in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157

(1994), because Starks could have raised his ineffective

assistance of counsel claims in his Cherry motion and failed to

do so. Starks II, No. 2010AP425, ¶6. While ineffective

assistance of counsel might explain why the issues in Starks's

§ 974.06 motion were not raised in his direct appeal, there was

no explanation as to why Starks did not raise these issues in

13
 No. 2010AP425

his Cherry motion, and so, the court of appeals reasoned,

Starks's § 974.06 motion was properly denied. Id.

¶26 We granted Starks's petition for review.

III. STANDARD OF REVIEW

¶27 The first question we must address is whether we have

jurisdiction. We apply a de novo standard to such

jurisdictional questions. See, e.g., Town of Delafield v.

Winkelman, 2004 WI 17, ¶14, 269 Wis. 2d 109, 675 N.W.2d 470.

¶28 The next question in this case is: does a defendant

who files a Cherry motion forfeit his right to later file a Wis.

Stat. § 974.06 postconviction motion? Assuming that Starks's

§ 974.06 motion was not barred by his earlier Cherry motion, we

then must determine the proper pleading standard for a court to

apply when a defendant alleges that his postconviction counsel

was ineffective for not raising certain arguments. These issues

require us to examine § 974.06 along with Escalona-Naranjo and

its offspring. The proper interpretation of a statute and case

law raises questions of law that we review de novo. Welin v.

Am. Family Mut. Ins. Co., 2006 WI 81, ¶16, 292 Wis. 2d 73, 717

N.W.2d 690.

¶29 Lastly, we address the merits of Starks's Sixth

Amendment ineffective assistance of appellate counsel claim,

i.e., his habeas claim. This also presents a mixed question of

fact and law. Knight, 168 Wis. 2d at 514 n.2. The circuit

court's factual findings are given deference, but whether there

was ineffective assistance of counsel is a question of law that

we answer independently. Id.
14
 No. 2010AP425

IV. DISCUSSION

¶30 We first hold that Starks improperly cast his claim of

ineffective assistance of appellate counsel as a claim of

ineffective assistance of postconviction counsel. Because a

claim of ineffective assistance of appellate counsel must be

filed as a petition for a writ of habeas corpus with the court

of appeals, Starks's decision to file a Wis. Stat. § 974.06

motion with the circuit court was procedurally incorrect.

However, because the mistake deprived the circuit court of

competency rather than jurisdiction, our review of Starks's

claim is appropriate.

¶31 This is a procedurally complex case that implicates

two dense and interrelated areas of law. To clarify the

following sections at the outset, for purposes of Section B we

treat Starks's action as a Wis. Stat. § 974.06 motion alleging

ineffective assistance of postconviction counsel, because that

is what he styled it as and because that is the only way we can

clarify the important issue presented regarding the relationship
between Cherry motions and § 974.06 motions. However, for the

discussion of ineffective assistance of appellate counsel in

Sections C and D, we treat Starks's action as a petition for a

writ of habeas corpus filed with the court of appeals in the

first instance and alleging ineffective assistance of appellate

counsel. We do so because given the arguments in his claim that

is what he should have filed, as he was challenging appellate

and not postconviction counsel. We explain this in greater

detail below. Additionally, treating it as a habeas claim for
15
 No. 2010AP425

ineffective assistance of appellate counsel is the only way we

can clarify the important issue presented regarding the proper

standard to apply to such claims, and that allows us to dispose

of his action without wasting unnecessary judicial resources by

delaying the ultimate resolution of his claim. Thus, our

holding in Section B applies to § 974.06 motions, while our

articulation of the proper pleading standard and our application

of that standard in Sections C and D apply to habeas claims

alleging ineffective assistance of appellate counsel. We

understand that our approach is an unusual one, but we note that

it is an unusual case with an unusual procedural posture, and we

take the only approach that allows us to clarify the difficult

legal questions presented while disposing of the matter before

us.

¶32 We hold as follows: (1) filing a Cherry motion does

not procedurally bar a defendant from filing a future Wis. Stat.

§ 974.06 motion; (2) the proper pleading standard required for a

defendant averring in a habeas petition that his appellate

counsel was ineffective for not raising certain arguments on

appeal is that the unraised claims were "clearly stronger" than

the claims that were raised; and (3) the claims of ineffective

assistance of trial counsel that Starks believes should have

been raised were not clearly stronger than the claims that were

raised by his appellate attorney and he thus fails to meet the

standard and qualify for habeas relief. Accordingly, we affirm

the court of appeals.

A. The Court Has Jurisdiction and Its Review is Appropriate
16
 No. 2010AP425

¶33 Although no party questions our jurisdiction, we may——

indeed, must——ensure that we have the power to speak on a

dispute before doing so. State v. Omernik, 54 Wis. 2d 220, 222,

194 N.W.2d 617 (1972) ("[J]urisdiction is always a proper

question to consider, even if we raise it sua sponte.")

(footnote omitted).

¶34 In their briefs before this court, Starks and the

State refer to Starks's second appointed attorney, Robert Kagen,

as his "postconviction counsel." This is not an accurate

description, though, of the tasks Kagen performed. Kagen did

not file any postconviction motions with the circuit court and

instead pursued a direct appeal with the court of appeals. He

was thus Starks's "appellate" attorney.

¶35 The distinction is not merely semantical. A claim for

ineffective assistance of postconviction counsel must be filed
with the circuit court, either as a Wis. Stat. § 974.06 motion

or as a petition for a writ of habeas corpus. State ex rel.

Rothering v. McCaughtry, 205 Wis. 2d 675, 681, 556 N.W.2d 136

(Ct. App. 1996) (per curiam). A defendant arguing ineffective

assistance of appellate counsel, conversely, may not seek relief

under § 974.06 and must instead petition the court of appeals

for a writ of habeas corpus. Knight, 168 Wis. 2d at 520. As

Starks filed his claim with the circuit court, it should have

been dismissed and not allowed to proceed to an appeal.

¶36 However, we will address the merits of the issues

presented in this case for several reasons. First, the

defendant's erroneous decision to file in circuit court rather
17
 No. 2010AP425

than the court of appeals deprived the former of competency to

proceed, not jurisdiction. To briefly summarize, jurisdiction

comes in two varieties: subject matter and personal. Subject

matter jurisdiction refers to the power of a court to decide

certain types of cases, while personal jurisdiction concerns a

court's power to enter a judgment against a specific individual.

State v. Smith, 2005 WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d

508. Because Article VII, Section 8 of the Wisconsin

Constitution states that, "[e]xcept as otherwise provided by

law, the circuit court shall have original jurisdiction in all

matters civil and criminal within this state," we have declared

that "no circuit court is without subject matter jurisdiction to

entertain actions of any nature whatsoever." Vill. of
Trempealeau v. Mikrut, 2004 WI 79, ¶8, 273 Wis. 2d 76, 681

N.W.2d 190 (internal quotation marks and citation omitted).

Competency, meanwhile, speaks to "the power of a court to

exercise its subject matter jurisdiction in a particular case,"

Smith, 283 Wis. 2d 57, ¶18 (citation and internal quotation

marks omitted), a power which we have described as "lesser" than

that of jurisdiction itself because jurisdiction flows from the

Wisconsin Constitution whereas competency is set by statute.

Green Cnty. Dep't of Hum. Servs. v. H.N., 162 Wis. 2d 635, 655-

56, 469 N.W.2d 845 (1991). Ergo, "the failure to comply with

any statutory mandate" goes to competence, not jurisdiction.

Id. at 656.

¶37 In this case, Starks miscast his claim of ineffective

assistance of appellate counsel as one of ineffective assistance
18
 No. 2010AP425

of postconviction counsel and thus erroneously filed a Wis.

Stat. § 974.06 motion with the circuit court. But as we held in

Knight, § 974.06 does not provide a mechanism for ineffective

assistance of appellate counsel claims. 168 Wis. 2d at 520.

Rather, those claims must be raised initially with the court of

appeals via a petition for a writ of habeas corpus. Id.

Because Starks did not follow the proper statutory procedure,

his error is better classified as depriving the circuit court of

competency rather than jurisdiction. Furthermore, Knight's
division of judicial labor was based on a pragmatic assessment

of the "institutional capabilities of trial and appellate

courts," an assessment that goes to competence rather than

jurisdiction. Id. at 517, 520.

¶38 Unlike jurisdictional defects, competency issues must

be raised at the circuit court or they are deemed forfeited.

Mikrut, 273 Wis. 2d 76, ¶30. Here, there is no evidence in the

record that the State challenged the circuit court's competency

when Starks filed his Wis. Stat. § 974.06 motions.

Additionally, the question of whether Starks followed the proper

procedure has not been briefed before this court. See State v.

Johnson, 153 Wis. 2d 121, 124, 449 N.W.2d 845 (1990) ("This

court will not consider the issues respondent wishes to have

considered unless they are asserted in the brief and fully

discussed in that brief to this court."). In sum, it would be

improper for the court to dismiss the case solely because Starks

erred when he chose the wrong forum for his initial filing.

19
 No. 2010AP425

¶39 We are also mindful of prudential concerns and the

interests of judicial economy. If we were to dismiss this case

for want of jurisdiction, presumably Starks would simply refile

his current claim with the court of appeals, deleting the word

"postconviction" and replacing it with "appellate." This case,

however, has already been before the court of appeals.

Additionally, this court is as institutionally well-suited to

assess the effectiveness of an appellate attorney as the court

of appeals is, the issues are fully briefed and argued, and

their resolution will assist attorneys, defendants, and courts

in a heavily-litigated area of law going forward. Cf. Hull v.

State Farm Mut. Auto Ins. Co., 222 Wis. 2d 627, 640 n.7, 586

N.W.2d 863 (1998) (noting that where one issue may be

dispositive the court may still "consider additional issues

which have been fully briefed and are likely to recur" if

resolution of those issues will improve judicial economy and

provide guidance to lower courts and litigants) (citations

omitted); People v. Feliciano, 950 N.E.2d 91, 95 (N.Y. 2011)

(observing that "appellate courts are uniquely suited to

evaluate what [constitutes] meaningful [representation] in their

own arena.") (internal quotation marks, brackets, and citation

omitted).

¶40 Having settled the jurisdictional question, we turn to

the disputed issues.

B. A Cherry Motion Does Not Count as a Prior Motion Under

Wis. Stat. § 974.06(4) and Escalona-Naranjo

1. Background
20
 No. 2010AP425

¶41 The Wis. Stat. § 974.06 postconviction procedure was

enacted in 1969 and was "designed to replace habeas corpus as

the primary method in which a defendant can attack his

conviction after the time for appeal has expired." Howard B.

Eisenberg, Post-Conviction Remedies in the 1970's, 56 Marq. L.

Rev. 69, 79 (1972) (footnote omitted). A defendant may file a

§ 974.06 motion only after he has "exhausted his direct

remedies[,] which consist of a motion for a new trial and [an]

appeal." Peterson v. State, 54 Wis. 2d 370, 381, 195 N.W.2d 837
(1972). Once an imprisoned defendant has pursued all his direct

remedies, though, § 974.06(1) allows him to move to vacate, set

aside, or correct his sentence if he contends that: (1) his

sentence violates the U.S. or Wisconsin Constitution; (2) the

court imposing the sentence lacked jurisdiction; or (3) his

sentence exceeded the maximum time set by law or is otherwise

subject to collateral attack. State v. Allen, 2010 WI 89, ¶22,

328 Wis. 2d 1, 786 N.W.2d 124. A § 974.06 motion "is a part of

the original criminal action, is not a separate proceeding and

may be made at any time." § 974.06(2). Section 974.06 is

therefore meant to supplement a criminal defendant's standard

appellate and postconviction remedies.

¶42 A defendant's ability to seek relief under Wis. Stat.

§ 974.06 is not unlimited, though. Section 974.06(4) provides

that:

All grounds for relief available to a person under
this section must be raised in his or her original,
supplemental or amended motion. Any ground finally
adjudicated or not so raised, or knowingly,

21
 No. 2010AP425

voluntarily and intelligently waived in the proceeding
that resulted in the conviction or sentence or in any
other proceeding the person has taken to secure relief
may not be the basis for a subsequent motion, unless
the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately
raised in the original, supplemental or amended
motion.

¶43 The language in this subsection was discussed and

analyzed in the seminal Escalona-Naranjo case. There, the

defendant was convicted of multiple drug charges. Escalona-

Naranjo, 185 Wis. 2d at 173-74. After he was sentenced,

Escalona-Naranjo sought postconviction relief in the form of a

new trial, a competency redetermination, and resentencing. Id.

at 174. The circuit court denied his motion and the court of

appeals affirmed. Id. at 174-75. Escalona-Naranjo then filed a

Wis. Stat. § 974.06 motion asserting ineffective assistance of

trial counsel. Id. at 175. The circuit court summarily

dismissed the motion, concluding that Escalona-Naranjo was

merely regurgitating issues that had previously been raised in

his postconviction motion and appeal. Id. The court of appeals

certified the case to this court, stating that even though

Escalona-Naranjo may have forfeited certain evidentiary issues

by not objecting at trial, his § 974.06 motion may have raised

new issues not decided on direct appeal.9 Id.

9
The court of appeals and this court used the term
"waiver," but "forfeiture" is more accurate because "a mere
failure to object constitutes a forfeiture of the right on
appellate review." State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d
653, 761 N.W.2d 612.

22
 No. 2010AP425

¶44 Escalona-Naranjo argued before this court that his

failure to raise ineffective assistance of trial counsel in his

motion for a new trial or on direct appeal did not preclude him

from raising it in a subsequent Wis. Stat. § 974.06 motion

because his claim was based on a constitutional right. Id. at

180. In our decision, we began by overruling our own precedent

in Bergenthal v. State, 72 Wis. 2d 740, 748, 242 N.W.2d 199

(1976), which held that a court must always consider

constitutional claims in a § 974.06 motion, even those that were

forfeited on direct appeal. Escalona-Naranjo, 185 Wis. 2d at
181. We clarified that a defendant may not raise an issue in

his § 974.06 motion that was finally adjudicated, waived, or

forfeited, unless he can provide a "sufficient reason" for why

the issue was not raised in the "original, supplemental or

amended motion." Id. at 181-82 (quoting language from

§ 974.06(4)) (footnote omitted).

¶45 As we said in Escalona-Naranjo, "[w]e need finality in

our litigation." 185 Wis. 2d at 185. A defendant may not raise

some constitutional issues on direct appeal and strategically

wait a few years to raise additional ones. Id. Rather, all

constitutional issues should be part of the original proceeding,

barring a "sufficient reason" for not raising them. Id. at 185-

86.

2. A Cherry Motion is a Distinct Procedure From a Wis.

Stat. § 974.06 Motion

¶46 The first issue presented in this case is whether

Starks's January 6, 2010 motion to vacate his DNA surcharge,
23
 No. 2010AP425

i.e., his Cherry motion, counted as a prior motion under Wis.

Stat. § 974.06(4) and Escalona-Naranjo such that his refiled

§ 974.06 motion of January 19 was procedurally barred and

required dismissal. While the court of appeals concluded that

Starks's Cherry motion prohibited him from refiling his § 974.06

motion, our analysis of the interrelationship between the

criminal appellate and postconviction statutes, as well as

applicable case law, reveals that sentence modification and

postconviction relief under Wis. Stat. § 974.06 are separate

proceedings such that filing one does not result in a waiver of

the other. In this case, that means that Starks's Cherry motion
did not bar his subsequent § 974.06 motion.

¶47 We begin first by noting a concession on the part of

the State. The court of appeals in this case held that Starks's

Cherry motion barred his subsequent Wis. Stat. § 974.06 motion

because Starks could have raised ineffective assistance of

counsel in his Cherry motion. Starks II, No. 2010AP425, ¶6.

The State concedes that the court of appeals relied upon an

erroneous premise in reaching this conclusion, as Wis. Stat.

§ 974.06 is confined to constitutional and jurisdictional

challenges, and Cherry motions, which cannot fairly be

categorized as either, are therefore never cognizable under the

statute. See State v. Nickel, 2010 WI App 161, ¶7, 330 Wis. 2d

750, 794 N.W.2d 765. Consequently, the State reasons, a tardy

Cherry motion cannot count as a prior § 974.06 motion within the

meaning of Escalona-Naranjo because a Cherry motion, even when

timely submitted, cannot be filed pursuant to that statute in
24
 No. 2010AP425

the first place.10 However, the State asserts that a defendant

who files a timely Cherry motion would waive his right to

§ 974.06 relief. We find this distinction meaningless and hold

that a Cherry motion, standing alone, can never bar a defendant

from later filing a § 974.06 motion.

¶48 Returning to the underlying issue, we start our

analysis, as we must, by examining the text of the relevant

statutes. See State ex rel. Kalal v. Circuit Court for Dane

Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110

(statutory interpretation begins with the language of the

statute). Wisconsin Stat. § 973.19(1)(a) provides that "[a]

person sentenced to imprisonment . . . may, within 90 days after

the sentence or order is entered, move the court to modify the

sentence . . . ." As a Cherry motion is a challenge to a

defendant's DNA surcharge, it is a type of sentence modification

motion. See supra note 6. A defendant who files a sentence

modification motion under § 973.19(1)(a) waives his right to

file "an appeal or postconviction motion under [Wis. Stat. §

(Rule)] 809.30(2)." Wis. Stat. § 973.19(5). Rule 809.30 is

located in Subchapter III of Chapter 809, which governs criminal

appellate procedure in the court of appeals. The definition

section of that statute defines "postconviction relief" as "an

appeal or a motion for postconviction relief in a criminal case,

10
Though we are not bound by a party's concession of law,
State v. St. Martin, 2011 WI 44, ¶14 n.6, 334 Wis. 2d 290, 800
N.W.2d 858, cert. denied, 565 U.S. __, 132 S. Ct. 1003 (2012),
we agree with the State that the court of appeals was mistaken
on this point.

25
 No. 2010AP425

other than an appeal, motion, or petition under . . . [Wis.

Stat. §] 974.06 . . . ." Rule 809.30(1)(c) (emphasis added).

¶49 There are two noteworthy conclusions to be drawn from

this statutory scheme: (1) a defendant who moves to modify his

sentence pursuant to Wis. Stat. § 973.19(1)(a) renounces his

right to a direct appeal and postconviction relief, and (2) a

Wis. Stat. § 974.06 motion is expressly not one of those forms

of relief. If the legislature wanted, it certainly could have

forced a defendant to choose between filing a sentence

modification motion or a § 974.06 motion. But it did not. Cf.
Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶14 n.9,

316 Wis. 2d 47, 762 N.W.2d 652 (stating the judicial presumption

that the legislature means what it says and that every word

excluded from a statute was excluded for a reason). Our reading

of these statutes makes clear that a Cherry motion, or any

sentence modification motion, plainly does not waive a

defendant's right to bring a § 974.06 motion at a later date.

¶50 Further support for this interpretation is found in

the statutes governing time limits in criminal appellate and

postconviction matters. See Kalal, 271 Wis. 2d 633, ¶46

(permitting the court to look at the language of "surrounding or

closely-related statutes" to guide its interpretation). A

defendant has 20 days after his "sentencing or final

adjudication" to file notice in the circuit court that he is

seeking postconviction relief. Wis. Stat.

§ (Rule) 809.30(2)(b). As previously mentioned, a defendant

seeking to modify his sentence must file a motion within 90 days
26
 No. 2010AP425

after the sentence or order is entered. Wis. Stat.

§ 973.19(1)(a). Wisconsin Stat. § 974.02(1) provides that "[a]

motion for postconviction relief other than under [Wis. Stat. §]

974.06 . . . shall be made in the time and manner provided in

[Wis. Stat. § (Rule)] 809.30." (Emphasis added). A § 974.06

motion, by contrast, "may be made at any time." § 974.06(2).

This statutory setup makes manifest that sentence modification

and § 974.06 motions are two separate forms of relief, such that

the filing of one does not preclude the filing of the other.

¶51 In addition to being textually sound, this

interpretation makes the most logical sense. Wisconsin Stat.

§ 974.06 was meant to supplant habeas corpus as the primary

method of attacking a conviction after the time for an appeal

has expired. Eisenberg, Post-Conviction Remedies in the 1970's,
56 Marq. L. Rev. at 79. According to the State's view, a

defendant who has just been sentenced has 90 days to either: (1)

make a Wis. Stat. § 974.06 argument, which is usually complex

given that it involves constitutional or jurisdictional

arguments, or (2) give up his right to seek a sentence

modification. Given that a § 974.06 motion "may be made at any

time," § 974.06(2), we find it implausible that a defendant

would have to relinquish his statutorily-protected right to

challenge his sentence in order to protect his future right to

challenge the constitutionality of his conviction in state

court. See Kalal, 271 Wis. 2d 633, ¶46 (observing that statutes

are interpreted to avoid absurd or unreasonable results). This

27
 No. 2010AP425

incongruity reaffirms what the statutes make clear: a defendant

is not required to raise § 974.06 arguments in a Cherry motion.

¶52 Wisconsin case law also supports the view that Wis.

Stat. § 974.06 motions and Cherry motions are distinct

mechanisms that do not overlap. Section 974.06 motions are

limited to "matters of jurisdiction or of constitutional

dimensions." Peterson, 54 Wis. 2d at 381 (footnote omitted).

As such, "[s]ome grounds for relief are not available under

§ 974.06." State v. Lo, 2003 WI 107, ¶37, 264 Wis. 2d 1, 665
N.W.2d 756 (emphasis removed). Because of this restriction, a

defendant may not make a Cherry argument in his § 974.06 motion.

Nickel, 330 Wis. 2d 750, ¶7. Another important distinction is

that a Cherry motion must be made before a criminal conviction

becomes final, see id., ¶5, whereas, in contrast, a § 974.06

motion can be made only after "the time for appeal or

postconviction remedy provided in Wis. Stat. § [974.02] has

expired . . . ." § 974.06(1). In other words, Wisconsin

precedent further bolsters our understanding of Cherry motions

and § 974.06 motions as wholly distinct. Having found no

justification for the State's position in either the statutory

text or logic, we similarly determine that the case law likewise

lends no support.

¶53 For the reasons stated, Starks's Cherry motion did not

bar his subsequent § 974.06 motion. We turn now to the proper

pleading standard for ineffective assistance of appellate

counsel claims when a defendant alleges in a habeas petition

28
 No. 2010AP425

that appellate counsel was deficient for not making certain

arguments.

C. Pleading Standard for Ineffective Assistance of

Appellate Counsel Claims in Habeas Petitions

1. General Principles of Ineffective Assistance of

Counsel

¶54 Article I, Section 7 of the Wisconsin Constitution,

and the Sixth Amendment of the United States Constitution, made

applicable to the states via the Fourteenth Amendment, entitle

every criminal defendant in our state to the effective

assistance of counsel. State v. Domke, 2011 WI 95, ¶34, 337

Wis. 2d 268, 805 N.W.2d 364; Evitts v. Lucey, 469 U.S. 387, 394-

95 (1985). This right applies to both a defendant's trial as

well as his direct appeal. Evitts, 469 U.S. at 396. In order

to establish a claim for ineffective assistance of counsel, the

defendant must show: (1) that counsel's performance was

deficient, and (2) counsel's deficiency prejudiced the

defendant. State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d

358, 805 N.W.2d 334, cert. denied, 565 U.S. __, 132 S. Ct. 825

(2011). Satisfaction of the first prong requires a showing that

the defendant's attorney "made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by

the Sixth Amendment." Strickland v. Washington, 466 U.S. 668,

687 (1984). In evaluating deficiency, courts indulge in every

presumption that counsel was effective unless shown otherwise by

the defendant. Balliette, 336 Wis. 2d 358, ¶¶27-28. Similarly,

reviewing courts must be "highly deferential" when judging an
29
 No. 2010AP425

attorney's strategic decisions, Domke, 337 Wis. 2d 268, ¶36

(citation omitted), and any decision made during the course of

representation is regarded as having been made for "tactical

reasons" in the absence of evidence to the contrary. Yarborough

v. Gentry, 540 U.S. 1, 8 (2003) (per curiam).

¶55 As to the second prong of the ineffective assistance

of counsel test, prejudice occurs when the attorney's error is

of such magnitude that there is a "reasonable probability" that

but for the error the outcome would have been different. State
v. Erickson, 227 Wis. 2d 758, 769, 569 N.W.2d 749 (1999).

Stated differently, relief may be granted only where there "is a

probability sufficient to undermine confidence in the outcome,"

i.e., there is a "substantial, not just conceivable, likelihood

of a different result." Cullen v. Pinholster, 563 U.S. __, 131

S. Ct. 1388, 1403 (2011) (internal quotation marks and citations

omitted).

2. Ineffective Assistance of Appellate Counsel

¶56 Turning to the specific issue here, the parties

dispute the appropriate standard a court should use in

determining whether a defendant received ineffective assistance

of appellate counsel because of counsel's failure to raise

certain arguments. Starks contends that all he must do to

demonstrate ineffectiveness is to show that appellate counsel's

performance was deficient and that it prejudiced him. The

State, on the other hand, argues that Starks must also establish

why the unraised claims of ineffective assistance of trial

counsel were "clearly stronger" than the claims that appellate
30
 No. 2010AP425

counsel raised on appeal. We hold that the State has

articulated the proper standard.

¶57 The United States Court of Appeals for the Seventh

Circuit, in the context of a federal habeas corpus petition

raising ineffective assistance of appellate counsel, has stated:

When a claim of ineffective assistance of [appellate]
counsel is based on failure to raise viable issues,
the [trial] court must examine the trial record to
determine whether appellate counsel failed to present
significant and obvious issues on appeal. Significant
issues which could have been raised should then be
compared to those which were raised. Generally, only
when ignored issues are clearly stronger than those
presented, will the presumption of effective
assistance of counsel be overcome.
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (emphasis

added).

¶58 Fourteen years later in Smith v. Robbins, 528 U.S. 259

(2000), the United States Supreme Court adopted this "clearly

stronger" standard. In that case, a California jury convicted

Robbins of second-degree murder and grand theft of an

automobile. Id. at 266. Robbins' appointed appellate attorney

concluded that an appeal would be frivolous and filed the

equivalent of a "no-merit brief" with the California Court of

Appeal. Id. at 266-67. The appellate court agreed that there

were no issues of arguable merit and affirmed his conviction.

Id. at 267. After the California Supreme Court denied his
petition for review, Robbins' state postconviction remedies were

exhausted, so he proceeded to file a habeas corpus petition in
federal court. Id. His habeas petition alleged (among other

31
 No. 2010AP425

claims) that he received ineffective assistance of appellate

counsel because his appellate attorney's no-merit brief did not

comply with Anders v. California, 386 U.S. 738, 744 (1967),

which "set forth a procedure for an appellate counsel to follow

in seeking permission to withdraw from the representation when

he concludes that an appeal would be frivolous; that procedure

includes the requirement that counsel file a brief referring to

anything in the record that might arguably support the appeal."

Robbins, 528 U.S. at 267-68 (citation omitted). The district
court concluded that there were at least two issues that the

appellate attorney should have raised in his no-merit brief and

thus reinstated Robbins' appeal. Id. at 268. The Ninth Circuit

affirmed. Id.

¶59 After granting certiorari, the U.S. Supreme Court held

that when a defendant (such as Robbins) alleges that his

appellate attorney was deficient for failing to file a merits

brief,11 all that a defendant must do to show deficiency is to
11
When an indigent defendant is appointed an attorney to
represent him on appeal, the attorney can either file a "merits
brief" (sometimes called a "brief on the merits") or a "no merit
brief." See, e.g., State ex rel. Seibert v. Macht, 2001 WI 67,
¶20 n.8, 244 Wis. 2d 378, 627 N.W.2d 881. A "merits brief" is a
traditional appellate brief in that it "sets out the issues to
be decided, the party's position, and the arguments and
authorities in support." Black's Law Dictionary 218 (9th ed.
2009). An attorney files a no-merit brief, however, when he
"concludes that a direct appeal on behalf of the [defendant]
would be frivolous and without any arguable merit within the
meaning of Anders v. California, 386 U.S. 738 (1967)." Wis.
Stat. § (Rule) 809.32(1)(a). The no-merit brief must "identify
anything in the record that might arguably support the appeal
and discuss the reasons why each identified issue lacks merit."
Rule 809.32(1)(a).

32
 No. 2010AP425

demonstrate "that a reasonably competent attorney would have

found one nonfrivolous issue warranting a merits brief . . . ."

Id. at 288. However, when a defendant (such as Starks) alleges

that his appellate attorney was deficient for not raising a

particular claim, "it [will be] difficult to demonstrate that

counsel was incompetent" because the defendant must show that "a

particular nonfrivolous issue was clearly stronger than issues

that counsel did present." Id. (emphasis added). "In both

cases, however, the prejudice analysis will be the same." Id.

(footnote omitted).

¶60 We now adopt this "clearly stronger" pleading standard

for the deficiency prong of the Strickland test in Wisconsin for

criminal defendants alleging in a habeas petition that they

received ineffective assistance of appellate counsel due to

counsel's failure to raise certain issues.12 As we have

previously noted, "[w]e need finality in our litigation."

Escalona-Naranjo, 185 Wis. 2d at 185. We also must respect the

professional judgment of postconviction attorneys in separating

the wheat from the chaff. Cf. Jones v. Barnes, 463 U.S. 745,

753 (1983) ("A brief that raises every colorable issue runs the

12
The dissent takes issue with the fact that the "clearly
stronger" standard cannot be applied to every other type of
ineffective assistance claim, such as the failure to
investigate. See dissent, ¶99. Of course it can't. By
definition, the test is limited to claims alleging the failure
to raise arguments. Not every test can account for every
situation. That inevitable limitation did not trouble the U.S.
Supreme Court in Smith v. Robbins, 528 U.S. 259 (2000), and it
does not trouble us here.

33
 No. 2010AP425

risk of burying good arguments . . . in a verbal mound made up

of strong and weak contentions.") (citation omitted). The U.S.

Supreme Court has "emphasized that the right to appellate

representation does not include a right to present frivolous

arguments," Robbins, 528 U.S. at 272, and that, in fact, an

appellate attorney has an ethical obligation not to "advance[e]

frivolous or improper arguments . . . ." McCoy v. Wis. Court of

Appeals, 486 U.S. 429, 435 (1988). The "clearly stronger"

standard achieves these objectives while at the same time

ensuring that a defendant whose appellate attorney did not raise

meritorious issues may still seek habeas relief.

3. The Dissent Misinterprets United States Supreme Court

Precedent

¶61 We are a bit mystified by the dissent's argument that

we are overlooking the U.S. Supreme Court's decision in Cullen,

specifically the language which states that "strict rules" are

not appropriate in evaluating ineffective assistance of counsel

claims. Dissent, ¶¶77, 89 (citing Cullen, 131 S. Ct. at 1406).

Pace Justice Bradley, she is disfiguring the meaning of this

quote by taking it grossly out of context. In Cullen, the

defendant Pinholster was convicted of first-degree murder and

sentenced to death by a California state jury. 131 S. Ct. at

1396-97. On mandatory appeal, the California Supreme Court

affirmed the judgment. Id. at 1396. Pinholster subsequently

filed a habeas corpus petition in state court, alleging that his

trial counsel was ineffective for failing to adequately

investigate mitigating evidence at the penalty phase of
34
 No. 2010AP425

Pinholster's murder trial. Id. The California Supreme Court

summarily dismissed the petition as meritless. Id. Pinholster

then moved for federal habeas relief. Id. The district court

granted Pinholster's petition, finding that his attorney failed

to adequately "investigate and present mitigation evidence at

the penalty hearing." Id. at 1397 (internal quotation marks and

citation omitted). A three-judge panel of the Ninth Circuit

reversed, but the en banc panel reinstated the district court's

decision to grant Pinholster habeas relief. Id.
¶62 One of the issues the Supreme Court granted review on

was "whether the Court of Appeals properly granted Pinholster

habeas relief on his claim of penalty-phase ineffective

assistance of counsel." Id. at 1398. In reviewing the en banc

decision, the Supreme Court observed that the Ninth Circuit

"drew from [our] cases a constitutional duty to

investigate . . . and the principle that it is prima facie

ineffective assistance for counsel to abandon their

investigation of the petitioner's background after having

acquired only rudimentary knowledge of his history from a narrow

set of sources." Id. at 1406 (internal quotation marks,

citations, and alterations omitted). In reversing the Court of

Appeals the Supreme Court said, "[b]eyond the general

requirements of reasonableness, specific guidelines are not

appropriate." Id. (internal quotation marks and citation

omitted). In other words, the Supreme Court was not talking

about pleading standards, as Justice Bradley believes, but

rather the Ninth Circuit's incorrect conclusion that Strickland
35
 No. 2010AP425

imposes a constitutional duty upon counsel to investigate. See

id. at 1406-07.

¶63 What is even more puzzling about the dissent's point

is that Justice Thomas was the author of both Cullen and

Robbins, the opinion that adopted the "clearly stronger"

standard. In fact, Robbins cited to the Seventh Circuit's

opinion in Gray as support for the "clearly stronger" standard.

Robbins, 528 U.S. at 288. Pinholster does not even mention

Robbins, let alone suggest that the decision is no longer good

law. We assume the Supreme Court chooses its words and the

cases it cites to carefully, and is aware of its own recently-

decided precedent.

¶64 Out of convenience, the dissent elects to simply

ignore Robbins' reasoning and import, mentioning this highly

relevant case only twice in passing. See dissent, ¶¶86, 96. It

suits the dissent more to recite broad language from Strickland,

a case that bears no factual similarity to the present one,

rather than to deal meaningfully with Robbins, a case directly

on point and one in which the U.S. Supreme Court explicitly

approved of the "clearly stronger" standard in the specific

legal context at issue here. See, e.g., Robbins, 528 U.S. at

287-88 (making clear that the "clearly stronger" standard is an

iteration of Strickland's deficiency prong). The dissent finds

many words to criticize our analysis but can articulate none to

explain its departure from clear U.S. Supreme Court precedent.

36
 No. 2010AP425

¶65 We now turn to whether the claims Starks believes

should have been raised on appeal are "clearly stronger" than

the claims he did raise.

D. Assessing the Merits of Starks's Ineffective

Assistance of Appellate Counsel Habeas Claims

¶66 As we have mentioned, Attorney Kagen argued on direct

appeal that: (1) the circuit court should have granted Starks's

request for the lesser-included offense instruction on second-

degree reckless homicide; (2) a mistrial should have been

declared when a witness sequestration order was violated; (3)

the circuit court erred in not dismissing the case based on the

prosecution's failure to turn over information relating to the

identity of "Junebug;" and (4) the evidence was inconsistent and

therefore insufficient to support the verdict. For Starks to

succeed on Strickland's deficiency prong with his claim that

Kagen rendered ineffective assistance of appellate counsel, he

must first show that the claims of ineffective assistance of

trial counsel that were not argued were "clearly stronger" than

the arguments Kagen did pursue.

¶67 Starks first contends that his trial counsel was

deficient for not calling Mario Mills as a witness. Mills,

recall, was originally Starks's co-defendant, as both were

charged with first-degree intentional homicide as a party to a

crime and possession of a firearm by a felon. Mills accepted a

plea bargain that reduced his charge to furnishing a firearm to

a felon. Starks believes that had Mills been called as a

witness, he could have undermined the State's case and presented
37
 No. 2010AP425

a different account of what happened the afternoon of the

murder.13 His support for this? An affidavit signed by Mills

after he took the plea bargain and after Starks was convicted,

claiming, "I never seen Tramell Starks shoot anyone." Given

that Mills was charged with the same crimes as Starks and only

came out with this version of events after he took a plea

bargain, the circuit court was correct to dismiss this statement

as unreliable.

¶68 The second purported instance of ineffective

assistance of trial counsel that Starks points to is his

attorney's failure to call Dion Anderson as a witness. Anderson

was in a sheriff's van with two of the State's key witnesses——

Trenton Gray and Wayne Rogers——who were supposed to be separated

from one another per a court sequestration order. After

Anderson was contacted by a private investigator hired by

Starks, Anderson wrote back reporting that he heard how Gray and

Rogers "put everything together" to convict Starks.

¶69 When the issue of the violated sequestration order

came up at trial, the circuit court found——based on answers Gray

13
The State asserts that the primary reason Mills was not
called as a witness at Starks's trial was because Mills
"unexpectedly took a plea on the morning of Starks's trial, but
trial counsel did not have enough time at the eleventh-hour to
interview Mills, or anyone whose testimony was related to Mills'
statements." This is not quite accurate. It is true that
Starks and Mills were both set to stand trial on August 21,
2006, and that Mills did take a plea that day. However,
Starks's trial was rescheduled to December 4, giving Starks's
attorney three-and-a-half months to interview Mills should he
have so chosen.

38
 No. 2010AP425

gave during his cross-examination——that he and Rogers did not

talk about the substance of their testimony. This finding was

upheld by the court of appeals in Starks's direct appeal.

Starks I, No. 2008AP790-CR, ¶¶19-22. Starks is thus asking us

to give him an opportunity to relitigate a dispositive factual

finding that has already been adjudicated, and we are not

permitted to do so on collateral review. See Allen, 328

Wis. 2d 1, ¶79.

¶70 Starks's third contention is that his trial attorney

should have investigated the phone records of Ray Gill

("Junebug"). At trial, Gray testified that he received a call

from Starks on the day of the murder, but that he called him

back using Gill's phone because, "I didn't trust my telephone

for the simple fact that I use it in my legitimate business as

well as my illegitimate business. Mr. Starks is important to

me, so, no, I didn't want to talk to him on my illegitimate

phone." Starks asserts that Gill's phone records would reveal

that no call was made between him and Gray. However, as the

circuit court noted, Starks did not actually produce any phone
records to support the veracity of this claim. Much like

Starks's second proposed instance of ineffective assistance of
counsel, this is nothing more than a conclusory allegation.

¶71 Finally, Starks believes his trial attorney was
deficient for not calling his father and grandmother——Stanley

Daniels and Mary McCullum——to testify. Daniels and McCullum

were present at the funeral where Gray testified that Starks

told him he wanted to murder Carvius Williams for talking to the
39
 No. 2010AP425

police about Starks's involvement in Weddle's death. Signed

affidavits by Daniels and McCullum stated that they did not see

Starks and Gray have a conversation at the funeral. Starks

believes their testimony would have undercut Gray's credibility.

¶72 Had Daniels and McCullum testified, it is possible the

jury would have been less likely to believe Gray's testimony.

But it is also possible that a jury would not have believed

them, especially given their familial connection to Starks.

Furthermore, the jury may have doubted their omnipresence. As

the circuit court nicely put it, "[t]here is not a reasonable

probability that the jury would have found it reasonable to

believe that both the defendant's grandmother and his father had

their eyes on the defendant's every single movement on the day

of the funeral." It is easy to imagine why Starks's trial

counsel opted not, for strategic reasons, to put Daniels and

McCullum on the stand. See Domke, 337 Wis. 2d 268, ¶49 ("This

court will not second-guess a reasonable trial

strategy . . . ."). Starks's final argument therefore fails as

well.

¶73 In short, the instances of ineffective assistance of

trial counsel that Starks believes Kagen should have argued on

appeal are either unsubstantiated, unpersuasive, or previously

adjudicated. They are in no way "clearly stronger" than the

arguments Kagen raised. We therefore hold that Kagen was not

deficient for failing to make these arguments, and thus need not

decide whether he was prejudiced. See Strickland, 466 U.S. at

697 (if a defendant cannot satisfy one prong of the
40
 No. 2010AP425

ineffectiveness test, a court need not reach the other). As

Starks did not receive ineffective assistance of appellate

counsel, we affirm his conviction.

V. CONCLUSION

¶74 We hold that as sentence modification is a distinct

procedure from Wis. Stat. § 974.06 motions, a defendant is not

required to shoehorn ineffective assistance of counsel arguments

into a Cherry motion. On the question of the proper pleading

standard, we hold that a defendant who argues he received

ineffective assistance of appellate counsel in a habeas petition

because certain arguments were not raised must show why the

claims he believes should have been raised on appeal were

"clearly stronger" than the claims that were raised.

¶75 Finally, we conclude that because the arguments about

trial counsel's ineffectiveness are not clearly stronger than

the arguments Starks made on direct appeal, Starks did not

receive ineffective assistance of appellate counsel and is not

entitled to habeas relief. The decision of the court of appeals

is therefore affirmed.

By the Court.—The decision of the court of appeals is

affirmed.

41
 No. 2010AP425.awb

¶76 ANN WALSH BRADLEY, J. (dissenting). I agree with

the majority that "Starks's Cherry motion did not bar his

subsequent § 974.06 motion," majority op., ¶53. However, I part

ways when it adopts a new bright-line test for evaluating claims

of deficient performance of counsel.1

¶77 A recent United States Supreme Court decision

addressing ineffective assistance of counsel claims under

Strickland v. Washington, 466 U.S. 668 (1984) declined to adopt

bright-line standards for evaluating deficiency. Cullen v.

Pinholster, 131 S. Ct. 1388, 1406 (2011). It cautioned against

"attributing strict rules" to its jurisprudence in this area of

the law. Id.

¶78 Nevertheless, the majority today ignores the

admonition of the United States Supreme Court and adopts a new

threshold bright-line test for evaluating deficient performance.

It articulates the new test as follows: "a defendant who argues

in a habeas petition that he received ineffective assistance of
appellate counsel because certain arguments were not raised must

demonstrate that the claims he believes should have been raised

on appeal were 'clearly stronger' than the claims that were

raised." Majority op., ¶6.

¶79 The new bright-line test adopted by the majority today

is inconsistent with the Strickland test for deficient

performance, which requires an evaluation of reasonableness

1
I also part ways with the majority when it declares,
without the benefit of briefing or argument, that it has
jurisdiction to determine the issues presented by the parties.

1
 No. 2010AP425.awb

under the totality of the circumstances. Although the "clearly

stronger" test is a circumstance to consider under the totality

of the circumstances and may be a useful tool in determining

deficient performance, the majority's bright-line, threshold

application of that test has been rejected by other state

supreme courts and is unsupported by our own precedent.

¶80 Additionally, the analysis employed by the majority in

applying its new test is unworkable because it cannot

practically be applied in many circumstances. The overarching,

unworkable scope of this test is apparent in the haphazard way

the majority analyzes Starks's claims in this case.

¶81 Accordingly, I respectfully dissent.

I

¶82 In Strickland v. Washington, 466 U.S. 668 (1984), the

United States Supreme Court fashioned the quintessential test

for deficient performance of counsel: whether counsel acted

unreasonably under the totality of the circumstances.2

2
At the outset, the majority recognizes a potential problem
with the court's jurisdiction in this case. Majority op., ¶4.
It acknowledges that because Starks "improperly filed his claim
with the circuit court, it should have been dismissed and not
allowed to proceed to an appeal." Id., ¶35.

Nevertheless, essentially for reasons of judicial economy,
the majority decides to address the merits of the issues and in
a cursory fashion concludes Starks's decision to file in the
wrong court was a matter of competence, not jurisdiction. Id.,
¶¶36-40.

It is unclear whether the majority is correct in its
cursory conclusion that the erroneous filing implicates
competence rather than jurisdiction. The issue was neither
raised nor briefed by the parties.

2
 No. 2010AP425.awb

Strickland, 466 U.S. at 688 ("the performance inquiry must be

whether counsel's assistance was reasonable considering all the

circumstances"). Although the majority pays lip service to

Strickland and decisions of this court applying Strickland, its

analysis ignores the Strickland test. Majority op., ¶54.

Article VII, Section 8 of the Wisconsin constitution,
entitled "Circuit court; jurisdiction" provides that "[e]xcept
as otherwise provided by law, the circuit court shall have
original jurisdiction in all matters civil and criminal[]."
(emphasis added.) In State v. Knight, a unanimous decision of
this court, we concluded that the law provided an ineffective
assistance of appellate counsel claim must be brought in the
court of appeals. 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992)
("We conclude that sec. 974.06 does not authorize a circuit
court to resolve claims of ineffective assistance of appellate
counsel.").

Because Knight stated that the circuit court is not
"authorize[d]" to hear a motion addressing ineffective
assistance of appellate counsel, it arguably falls within the
constitutional phrase "[e]xcept as otherwise provided by law."
The analysis of the court of appeals in State ex rel. Rothering
v. McCaughtry, 205 Wis. 2d 675, 677, 556 N.W.2d 136 (Ct. App.
1996) supports that the Knight court discussed "jurisdiction,"
not competency. Therefore, the circuit court may have lacked
jurisdiction to hear Starks's motion.

If the circuit court lacked jurisdiction, its order
addressing the merits of Starks's motion was a nullity. If its
order was a nullity, then likewise any decision addressing the
merits by the court of appeals and by this court are likewise
nullities and would have no precedential value.

Accordingly, I determine that supplemental briefs should be
ordered addressing this issue. Because jurisdiction cannot be
conferred by mistake or stipulation, this issue is potentially
dispositive. Lassa v. Rongstad, 2006 WI 105, ¶34, 294 Wis. 2d
187, 718 N.W.2d 673. The majority should not resolve such an
important question seemingly unfettered by the lack of argument
or analysis, the words of the constitution, and our prior
unanimous precedent.

3
 No. 2010AP425.awb

¶83 Instead, the majority introduces a new, bright-line

test inconsistent with the test set out in Strickland. Rather

than following the very cases and statutes it cites, it

introduces a new threshold test: "a defendant who argues he

received ineffective assistance of appellate counsel in a habeas

petition because certain arguments were not raised must show why

the claims he believes should have been raised on appeal were

'clearly stronger' than the claims that were raised." Majority

op., ¶74.

¶84 This new standard is wholly inconsistent with

Strickland, which requires an evaluation of reasonableness under

the totality of the circumstances. 466 U.S. at 695. A bright-

line standard is not only incompatible with Strickland, it is

its antithesis.

¶85 The Sixth Amendment to the United States Constitution

guarantees that an accused shall "have the Assistance of Counsel

for his defence." The United States Supreme Court has

additionally recognized that the constitutional right to counsel
is "the right to the effective assistance of counsel."

Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397

U.S. 759, 771 n. 14 (1970)).

¶86 The Strickland test for ineffective assistance of

counsel remains the lodestar of all ineffective assistance

determinations to this day. The United States Supreme Court

set forth two elements to establish ineffective assistance of

counsel: deficient performance and prejudice. Id. at 687; see

also Smith v. Robbins, 528 U.S. 259, 285 (2000) ("the proper

4
 No. 2010AP425.awb

standard for evaluating Robbins' claim that appellate counsel

was ineffective in neglecting to file a merits brief is that

enunciated in Strickland . . . .").

¶87 To establish deficient performance, "the defendant

must show that counsel's representation fell below an objective

standard of reasonableness" under prevailing professional norms.

Strickland, 466 U.S. at 687-88. Judicial scrutiny of counsel's

performance must be "highly deferential." Id. at 689. Courts

are to determine whether "in light of all the circumstances, the

identified acts or omissions [of counsel] were outside the wide

range of professionally competent assistance." Id. at 690.

¶88 Evaluating whether one argument is "clearly stronger"

than another is not the test for ineffective assistance of

appellate counsel. Rather it is a factor to consider when

applying the Strickland test.

¶89 A recent United States Supreme Court decision

addressing ineffective assistance of counsel claims under

Strickland declined to adopt bright-line standards for
evaluating deficiency, and cautioned against "attributing strict

rules" to its jurisprudence in this area of the law. Cullen,

131 S. Ct. at 1406 ("[b]eyond the general requirement of

reasonableness, 'specific guidelines are not appropriate.

[Citing Strickland at 688]'").

¶90 Other decisions of the United States Supreme Court

have further emphasized the highly individualized nature of the

task of evaluating whether counsel rendered constitutionally

effective assistance. See, e.g., Williams v. Taylor, 529 U.S.

5
 No. 2010AP425.awb

362, 391 (2000) ("the Strickland test 'of necessity requires a

case-by-case examination of the evidence[].'"); Premo v. Moore,

131 S. Ct. 733, 742 (2011) (the deficiency inquiry varies at

different stages of the case). A bright-line standard for

evaluating deficiency is contrary to this United States Supreme

Court case law.

¶91 Not only is the majority's bright-line test for

deficient performance inconsistent with Strickland's test for

deficient performance, it overstates the case from which it

borrows the phrase "clearly stronger." In Gray v. Greer, 800

F.2d 644 (7th Cir. 1985), the defendant alleged that his

appellate counsel was ineffective. The district court concluded

that appellate counsel was not ineffective based solely on

review of the defendant's brief on direct appeal. Id. at 645-

646.

¶92 The Seventh Circuit concluded that when a claim of

ineffective assistance of counsel is based on failure to raise

viable issues, the district court is to "examine the trial court
record to determine whether appellate counsel failed to present

significant and obvious issues on appeal." Id. at 646. It

provided guidance as to how to examine the trial record, stating

that "[s]ignificant issues that could have been raised should

then be compared to those which were raised." Id. Furthermore,

the court observed that "[g]enerally, only when ignored issues

are clearly stronger than those presented, will the presumption

of effective assistance of counsel be overcome." Id. (emphasis

added).

6
 No. 2010AP425.awb

¶93 The majority reads Gray in an overbroad manner.

Although comparing the arguments and determining that ignored

claims are clearly stronger than those presented is certainly

one way of showing deficiency, it is not the only way.3

¶94 Other state supreme courts have emphasized the word

"generally" in Gray and have specifically declined to adopt the

bright-line "clearly stronger" test that is embraced by the

majority today. They recognize that a bright-line test is too

rigid, noting that not even Gray espoused the "clearly stronger"

standard as the only way to prove deficient performance. See

Shorter v. Waters, 571 S.E.2d 373, 376 (Ga. 2002) (the clearly

stronger test does not always apply because "[s]ituations may

arise when every error enumerated by appellate counsel on appeal

presented a strong, nonfrivolous issue but counsel's performance

was nonetheless deficient because counsel's tactical decision

not to enumerate one rejected error was an unreasonable one

which only an incompetent attorney would adopt."); Carpenter v.

State of Tennessee, 126 S.W.3d 879, 888 (Tenn. 2004) (discussing
Gray and declining to "hold that the only way to show deficient

3
For example, another way to show deficient performance
includes showing that the failure to raise an issue was
unreasonable because it was due to oversight rather than an
intentional, reasoned strategy. Wiggins v. Smith, 539 U.S. 510,
534 (2003). Defense counsel has a "duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary." Strickland v.
Washington, 466 U.S. 668, 690-691 (1984). If counsel chooses
issues based on less than a full investigation, the deficiency
determination turns on whether the failure to investigate was
itself unreasonable, not on whether that attorney would have
chosen to raise the issues discovered by such an investigation.
Wiggins v. Smith, 539 U.S. at 522-523.

7
 No. 2010AP425.awb

performance of appellate counsel in a case involving the

omission of an issue on appeal is to establish that the omitted

issue was clearly stronger than the issues that counsel did

present on appeal." (Emphasis in original.)).

¶95 Furthermore, the bright-line standard is unsupported

by prior precedent of this court. This court has long

recognized Strickland as providing the framework for evaluating

claims of ineffective assistance of counsel. State v. Moffett,

147 Wis. 2d 343, 352, 433 N.W.2d 572 (1989) ("A claim of

ineffective assistance of counsel brought under the sixth

amendment of the United States Constitution must meet the test

articulated in Strickland v. Washington . . . and followed by

this court in State v. Pitsch . . . and State v.

Johnson . . . ." (Citations omitted.)).

¶96 Recently, in a case involving a § 974.06 motion based

on deficiency of postconviction counsel, this court recognized

again that Strickland guides this court's analysis of

ineffective assistance of counsel, and allows for various ways
to show deficient performance. State v. Balliette, 2011 WI 79,

¶64, 336 Wis. 2d 358, 805 N.W.2d 334 ("For example, Balliette

could have alleged such deficiency by showing that counsel's

performance was 'objectively unreasonable . . . in failing to

find arguable issues to appeal,' as the Supreme Court described

it in Smith [v. Robbins].").

¶97 This recent decision, as well as the substantial body

of Wisconsin case law interpreting Strickland, shows that this

court has ably evaluated claims of ineffectiveness of counsel

8
 No. 2010AP425.awb

without inventing a bright-line standard. The majority's new

threshold bright-line test is inconsistent with the totality of

the circumstances test set forth by the United States Supreme

Court, and as interpreted by other states and prior decisions of

this court.

II

¶98 When the majority turns to evaluate the merits of

Starks's claims, it is apparent that its new "clearly stronger"

test is unworkable as a bright-line test because it cannot be

practically applied in many circumstances. Although claims of

ineffective assistance of appellate counsel may often require a

court to weigh the relative merits of claims that were raised

and those that were not raised, that will not always be the

case.

¶99 The majority's "clearly stronger" test has no

practical application in many circumstances. For example, under

Strickland, counsel has a duty to "make reasonable

investigations or to make a reasonable decision that makes
particular investigations unnecessary." 466 U.S. at 691.

Accordingly, a court does not need to determine whether a claim

that was not raised is "clearly stronger" than those that were

raised when the allegation of ineffectiveness is premised upon a

failure to adequately investigate a claim in the first place.

¶100 Likewise, a failure to raise a claim may simply be due

to oversight rather than an intentional strategy. Wiggins v.

Smith, 539 U.S. 510, 534 (2003). Sometimes counsel simply

forgets to raise claims, irrespective of any evaluation of their

9
 No. 2010AP425.awb

relative strength. A court does not need to determine whether a

claim that was not raised is "clearly stronger" than those that

were raised when counsel acts unreasonably due to oversight.

¶101 Even if counsel properly identifies an issue that is

the strongest issue available, his performance may also be

considered deficient when the claim is not adequately raised——

such as when there is a failure to conduct research sufficient

to support the claim, a failure to present necessary evidence,

or a failure to adequately argue the claim. A court does not

need to determine whether a claim that was not raised is

"clearly stronger" than those that were raised when the focus of

the inquiry is exclusively on the claim that was raised

inadequately.

¶102 As the above examples illustrate, the majority's

"clearly stronger" test is simply inapplicable in many

circumstances. Yet, its holding appears to premise deficient

performance on evaluating the relative strength of the claims

raised and not raised regardless of the reasonableness under the

totality of the circumstances. As a practical matter, such a

test cannot always apply whenever a defendant "argues he

received ineffective assistance of appellate counsel in a habeas

petition because certain arguments were not raised." Majority

op., ¶74.

¶103 The overarching, unworkable scope of the majority's

new bright-line test is apparent in the haphazard way it

evaluates Starks's motion in this case. After paying lip

service to Strickland and other cases setting forth a standard

10
 No. 2010AP425.awb

for ineffectiveness, majority op., ¶¶54-55, the only test it

really applies is its "clearly stronger" test. Id., ¶73 (the

claims raised by Starks "are in no way "clearly stronger" than

the arguments Kagen raised.").

¶104 Instead of evaluating the underlying allegations of

ineffectiveness of trial counsel on their merits, the majority

simply dismisses them out of hand as "unsubstantiated,

unpersuasive, or previously adjudicated." Majority op., ¶73.

Because it concludes that the underlying claims of ineffective

trial counsel must fail——even though it has not really evaluated

the underlying ineffectiveness claims under Strickland——the

majority concludes that the claims not raised are not "clearly

stronger" and no deficient performance exists. Majority op.,

¶73.

¶105 Additionally, the majority's analysis disregards or

dismisses the facts alleged in Starks's motion. In one

instance, it evaluates credibility by deriding allegations

advanced in the motion as "unreliable." Majority op., ¶67. By
making determinations of reliability and credibility, the

11
 No. 2010AP425.awb

majority skips an evidentiary hearing where those very issues

should be determined.4

¶106 Later, it speculates that it is "easy to imagine why

Starks's trial counsel opted not, for strategic reasons," to put

two potential witnesses on the stand. Majority op., ¶72. The

majority cannot know what reason trial counsel had, if any, for

failing to call two witnesses. Those reasons are to be elicited

at an evidentiary hearing, not in reviewing an initial motion.

¶107 This type of a half-hearted analysis is not a reasoned

application of constitutional standards. It further illustrates

the overarching, unworkable nature of the bright-line test that

is adopted by the majority today.

¶108 Accordingly, for the reasons set forth above, I

respectfully dissent.

¶109 I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON and JUSTICE N. PATRICK CROOKS join this dissent.

4
The majority's determination of reliability can be
understood as a determination of credibility. Credibility
determinations are a matter for the circuit court at an
evidentiary hearing, not in reviewing an initial motion. See
First Nat. Bank of Appleton v. Nennig, 92 Wis. 2d 518, 529, 285
N.W.2d 614 (1979). Although sometimes a statement can be
considered not credible as a matter of law, there is no
indication here that the testimony would inherently be "so
confused, inconsistent, or contradictory" as to be considered
not credible before anyone has even taken the stand. State ex
rel. Brajdic v. Seber, 53 Wis. 2d 446, 450, 193 N.W.2d 43
(1972).

12
 No. 2010AP425.awb

1