                                                                       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 App. 2011 – Unpublished)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.

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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

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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

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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

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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




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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).

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