State v. Robert Wayne Huber, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 16, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2123 Cir. Ct. No. 2013CF5047

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT WAYNE HUBER, JR.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
STEPHANIE ROTHSTEIN, Judge. Affirmed.

Before Brash, C.J., Gundrum, P.J., and Dugan, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP2123

¶1 PER CURIAM. Robert Wayne Huber, Jr., pro se, appeals from an
order of the trial court denying his motion for postconviction relief without a
hearing. Huber raises several arguments on appeal as to why he is entitled to a
new trial. For the reasons set forth below, we affirm.

BACKGROUND

¶2 After a seven-day jury trial held in May 2014, Huber was convicted
of twenty-five felonies arising out of the enticement and sexual and physical
assaults of two adolescent girls. As summarized from the evidence introduced at
trial, Huber set up a Facebook page for a group that he called “The Kittenz.” He
held the group out as a group through which young girls could improve
themselves spiritually and physically; however, it was through this group that
Huber persuaded underage girls to come to his house for “lessons” where he
would then sexually assault them and physically abuse them, all while claiming to
be “teaching” them.

¶3 At trial, the State presented extensive testimony from the two
victims in which each detailed their encounters with Huber. The State also
introduced into evidence several Facebook messages exchanged as part of this
group and played video footage of Huber with the girls. The State also called
several additional witnesses, including those who had participated in the criminal
investigation.

¶4 Huber testified in his own defense, and during his testimony, he
admitted to sexually assaulting and physically abusing both of the girls. However,
he claimed that he was forced to do so by a woman who was calling him and
threatening to harm him, his family, and even the girls if he did not comply with
this woman’s demands to assault and abuse these girls.

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¶5 Following his conviction, Huber was sentenced to a total of 225
years of initial confinement and 135 years of extended supervision.

¶6 Represented by counsel, Huber filed his first motion for
postconviction relief and argued that he was denied his right to a public trial when
the courtroom was closed while playing the video of the assaults to the jury. He
further argued that his trial counsel was ineffective for failing to object to the
closure of the courtroom. The trial court denied Huber’s motion. On appeal,
Huber raised the same arguments and added the argument that he was denied his
right of self-representation. We affirmed. See State v. Huber, No. 2016AP1803-
CR, unpublished slip op. (WI App Nov. 8, 2017).

¶7 Now proceeding pro se, Huber has filed a second motion for
postconviction relief pursuant to WIS. STAT. § 974.06 (2019-20).1 The trial court
denied his motion, without a hearing, and Huber appeals.

DISCUSSION

¶8 Huber raises several arguments on appeal including: (1) the trial
judge was biased for, among other things, angrily speaking to Huber, denying
Huber the ability to have access to discovery materials, and denying him the
coercion instruction; (2) Huber was constructively denied the right to counsel,
both during trial and in his previous appeal; (3) trial and postconviction counsel
were both ineffective for a variety of reasons; (4) the State engaged in several acts
of prosecutorial misconduct and Brady2 violations by, for example, falsifying and
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Brady v. Maryland, 373 U.S. 83 (1963).

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No. 2019AP2123

manipulating the evidence; (5) Huber was denied his right to confront one of the
detectives who participated in the criminal investigation;3 (6) there was
insufficient evidence to support the jury’s verdict because the evidence was
fabricated, manipulated, and based on perjury; (7) the transcripts are incomplete
and have been manipulated by the court reporter; (8) the State’s witnesses
committed at least 157 instances of perjury; and (9) postconviction counsel was
ineffective because he raised “fake” claims and failed to raise any of the several
claims that Huber now identifies.4

¶9 The State argues that Huber’s arguments can all be consolidated and
addressed under the umbrella of whether the trial court erroneously denied
Huber’s motion for postconviction relief, and it urges us to affirm on the grounds
that Huber’s arguments are conclusory and the record conclusively establishes that
his arguments are without merit.5 As the State argues, Huber “supported his
laundry list of claims with only his opinion” and his postconviction motion is
“nothing but a meandering rant filled with hopelessly conclusory allegations of
error unsupported by law or fact.” We agree with the State, and therefore, we
conclude that the trial court properly denied Huber’s motion for postconviction
relief without a hearing. See State v. Allen, 2004 WI 106, ¶¶9, 14, 274 Wis. 2d
568, 682 N.W.2d 433 (explaining that the trial court has discretion to deny a

3
We note that this detective was deceased at the time of the trial.
4
To the extent that Huber has raised additional arguments that we have not expressly
identified, we summarily reject his arguments as undeveloped and not properly supported by legal
authority. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
5
The State also argues that we should summarily affirm because Huber’s brief fails to
comply with several rules of appellate procedure and does not present developed arguments.
Considering that Huber is proceeding pro se, we decline to do so based on his alleged failure to
comply with the rules of appellate procedure.

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No. 2019AP2123

postconviction motion without a hearing if the allegations are conclusory or the
record conclusively shows that the defendant is not entitled to relief).

¶10 As both the State and the trial court recognized, Huber’s arguments
for ineffective assistance of trial and postconviction counsel, as well his arguments
related to Brady violations and prosecutorial misconduct, require a showing of
prejudice. In other words, Huber must demonstrate that there is a reasonable
probability that the outcome of the trial would have been different. See State v.
Balliette, 2011 WI 79, ¶24, 336 Wis. 2d 358, 805 N.W.2d 334 (ineffective
assistance of counsel); State v. Harris, 2004 WI 64, ¶14, 272 Wis. 2d 80, 680
N.W.2d 737 (Brady violations); State v. Ziebart, 2003 WI App 258, ¶15, 268
Wis. 2d 468, 673 N.W.2d 369 (requiring a showing that trial counsel was
ineffective to demonstrate that postconviction counsel was ineffective); State v.
Patterson, 2010 WI 130, ¶56, 329 Wis. 2d 599, 790 N.W.2d 909 (prosecutorial
misconduct). Accordingly, we similarly dispose of these arguments under the
same reasoning because Huber cannot establish that the outcome of his trial would
be any different.

¶11 As the trial court aptly described below,

The strength of the State’s evidence, which included video
of the defendant sexually and physically abusing the
victims, was overwhelming. His ridiculous defense that he
was coerced into sexually and physically abusing the
victims was obviously given no credence by the jury, which
found him [] guilty of all 25 counts in little more than an
hour. None of the defendant’s claims of error offers any
material support for his coercion defense or creates any
reasonable probability of a different outcome at a new trial.

Indeed, Huber’s own testimony where he admits to assaulting the two victims was
sufficient in itself for a jury to convict Huber, and yet, the jury nonetheless heard
days’ worth of detailed testimony provided by the two victims and those who

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No. 2019AP2123

investigated the assaults, watched the video evidence documenting the assaults,
and were provided with pages of Facebook messages. Considering the evidence
presented at trial, it is utterly impossible to comprehend how the outcome of the
trial could have been any different, and we reject Huber’s arguments to the
contrary.6 The record conclusively demonstrates that the outcome of Huber’s trial
would not have been any different, despite the numerous alleged deficiencies and
errors identified by Huber in his many arguments.

¶12 We likewise reject Huber’s argument that the evidence was
insufficient to support the verdicts rendered by the jury:

[A]n appellate court may not substitute its judgment for
that of the trier of fact unless the evidence, viewed most
favorably to the [S]tate and the conviction, is so lacking in
probative value and force that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable
doubt. If any possibility exists that the trier of fact could
have drawn the appropriate inferences from the evidence
adduced at trial to find the requisite guilt, an appellate court
may not overturn a verdict even if it believes that the trier
of fact should not have found guilt based on the evidence
before it.

State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) (citation
omitted). Furthermore, Huber’s argument that any of this evidence was fabricated,
falsified, manipulated, perjured, or otherwise tampered with is conclusory and
unsubstantiated, and he fails to provide any examples from the record, or even any
legal authority, to support his allegations.

6
We note that Huber argues that no showing of prejudice is required because he was
constructively denied his right to counsel and thus his situation falls within United States v.
Cronic, 466 U.S. 648 (1984). We disagree, and we reject this premise. The situations in which
prejudice is presumed are “rare.” See State v. Erickson, 227 Wis. 2d 758, 770, 596 N.W.2d 749
(1999).

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No. 2019AP2123

¶13 We further note that Huber has made a conclusory and
unsubstantiated argument of judicial bias. In making this argument for judicial
bias, Huber fails to provide examples from the record of the alleged instances of
judicial bias. See State v. Neuaone, 2005 WI App 124, ¶17, 284 Wis. 2d 473, 700
N.W.2d 298 (concluding that the defendant failed to meet his burden to
“demonstrate how this information translates” into judicial bias). Instead, on
several instances, Huber points to rulings from the trial court that were
unfavorable to him. “[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Huber has also attempted to manufacture judicial bias by asserting a claim of
judicial bias and alleging that the trial court judge may be a necessary witness at
an evidentiary hearing. Consequently, Huber has failed to adequately plead his
claim for judicial bias, and his claim lacks support in the record. See Allen, 274
Wis. 2d 568, ¶¶9, 23. We, therefore, reject his argument.

¶14 Furthermore, we reject the arguments Huber has raised in his current
postconviction motion for the additional reason that Huber has forfeited many of
his arguments by failing to object and raise these issues below. “[U]nobjected-to
errors are generally considered waived; and the rule applies to both evidentiary
and constitutional errors.” State v. Boshcka, 178 Wis. 2d 628, 642, 496 N.W.2d
627 (Ct. App. 1992). Moreover, Huber has failed to provide a sufficient reason
why any of the arguments that he raises now were not raised in his first appeal and
why the arguments he now identifies are clearly stronger than the ones pursued by
his postconviction counsel at the time of his first postconviction motion and
appeal. See State v. Romero-Georgana, 2014 WI 83, ¶¶33-34, 46, 360 Wis. 2d
522, 849 N.W.2d 668. Huber’s argument that he was constructively denied his
right to counsel also appears to be, at least in part, a recasting of his argument

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No. 2019AP2123

from his first appeal that he was denied the right to represent himself. “A matter
once litigated may not be relitigated in a subsequent postconviction proceeding no
matter how artfully the defendant may rephrase the issue.” See State v.
Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991).
Consequently, we will not address Huber’s arguments further.

¶15 In sum, we reject Huber’s arguments, and we conclude that the trial
court properly denied Huber’s motion for postconviction relief without a hearing.
See Allen, 274 Wis. 2d 568, ¶9.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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