By: WISCONSIN LAW JOURNAL STAFF//July 19, 2011//
Criminal Procedure
Ineffective assistance
A motion that fails to address the elements of ineffective assistance for postconviction counsel is conclusory.
“We conclude that the defendant is not entitled to an evidentiary hearing because the allegations in his § 974.06 motion do not provide sufficient material facts that, if proven, demonstrate an entitlement to the relief sought.
His motion focused attention on the wrong counsel; it was conclusory because it failed to carefully address the two elements of ineffective assistance for postconviction counsel set out in Strickland; and it generally ignored the “five
‘w’s’ and one ‘h'” methodology outlined in John Allen, which guide the court in meaningfully evaluating the claim. The motions failed to say who would be called as a witness at an evidentiary hearing and what this testimony was likely
to prove. In attempting to construct a better defense for a retrial, Balliette did not do enough to show that a new trial was required.”
Reversed.
2009AP472 State v. Balliette
Prosser, J.
Attorneys: For Plaintiff: Daniel J. O’Brien, Madison; For Defendant: Steven D. Grunder, Madison