09-2292 Promotor v. Pollard

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Habeas Corpus
Waiver

Wisconsin courts regularly apply the procedural default rule, that a party who fails to object at the trial court waives the right to appeal unless justice so requires.

“As a general rule, Wisconsin courts find waiver if information is not objected to at the trial court. And this was true in 2003 at the time of Promotor’s sentencing. But there is a difference between a consistent application and an absolute application. A regular practice may still, in the interest of justice, allow room for flexibility. See, e.g., State v. Leitner, 247 Wis.2d 195, 633 N.W.2d 207, 215 (Wis. Ct. App. 2001) (choosing to ‘ignore the . . . waiver rule’ because the case presented an important recurring issue). Wisconsin courts have regularly followed the rule that information that is not contested at trial cannot be objected to later. The exceptions do not disprove the rule. We find that Wisconsin waiver law was applied in a consistent and principled way, and therefore constitutes an adequate and independent state law ground that cannot be reviewed absent cause and prejudice.”

Affirmed.

09-2292 Promotor v. Pollard

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Williams, J.

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