State v. James Allen Nichols

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.
January 9, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP1369 Cir. Ct. No. 2007CF5

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES ALLEN NICHOLS,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Marinette County:
JANE M. SEQUIN, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

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. 2021AP1369

¶1 PER CURIAM. James Allen Nichols appeals from an order
denying both his WIS. STAT. § 974.06 (2021-22)1 postconviction motion and his
motion for the Honorable Jane M. Sequin to recuse herself from deciding his
postconviction motion. He also appeals an order denying his motion for
reconsideration.2 Nichols argues that Judge Sequin was subjectively and
objectively biased and should not have ruled on his postconviction motion.
Further, he contends that the circuit court erred when it denied his postconviction
motion without a hearing. For the reasons that follow, we affirm the court’s
orders.

BACKGROUND

¶2 In 2007, following a jury trial, Nichols was convicted of
second-degree intentional homicide, hiding a corpse, and being a felon in
possession of a firearm. Nichols was represented by Attorneys Henry Schultz and
Kent Hoffmann (hereinafter, “trial counsel”). Following his conviction, Nichols
filed an appeal as a matter of right, during which time he was represented by
Attorney Chris Gramstrup (hereinafter, “postconviction counsel”), who raised
three claims, none of which asserted ineffective assistance of trial counsel. We
affirmed the judgment of conviction. State v. Nichols, No. 2008AP940,
unpublished slip op. (WI App Mar. 31, 2009).3

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
Nichols does not make any independent arguments as to why the circuit court erred in
denying his motion for reconsideration. We will therefore focus our analysis on the court’s order
denying his postconviction motion and motion for recusal.
3
We cite to this unpublished case simply for background information and law of the
case. See WIS. STAT. RULE 809.23(3).

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¶3 Roughly ten years later, Nichols, represented by Attorney
John Miller Carroll (hereinafter, “appellate counsel”), filed with this court a
petition for a writ of habeas corpus pursuant to State v. Knight, 168 Wis. 2d 509,
512-13, 484 N.W.2d 540 (1992), alleging that his postconviction counsel was
ineffective for failing to argue that his trial counsel were ineffective. We denied
that writ, stating that Nichols was required to seek relief through a WIS. STAT.
§ 974.06 motion because the attorney he alleged provided ineffective assistance
was his postconviction counsel, not appellate counsel.4 See State ex rel.
Rothering v. McCaughtry, 205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App.
1996).

¶4 Subsequently, Nichols filed a postconviction motion in May 2017
pursuant to WIS. STAT. § 974.06. He argued that his postconviction counsel was
constitutionally ineffective because he failed to challenge trial counsel’s
effectiveness in seven ways. In October 2017, the circuit court, the Honorable
David G. Miron presiding, issued an order denying the May 2017 motion
following an oral ruling. The court determined that Nichols’ claims failed for two
reasons. First, Nichols failed to demonstrate “why these new issues that are being
raised are clearly stronger than those actually raised” previously. Second, the
court denied each claim on its merits, finding that counsel did not perform
deficiently by failing to raise them. Nichols did not appeal the court’s order, and
his appellate counsel withdrew from representation.

4
“Even though [WIS. STAT. §] 974.06 was designed to supplant habeas corpus, the
legislature has expressly recognized in the statute that [§] 974.06 may on occasion prove
‘inadequate or ineffective to test the legality’ of a defendant’s detention. In such circumstances, a
petition for a writ of habeas corpus may still be appropriate.” State v. Knight, 168 Wis. 2d 509,
520, 484 N.W.2d 540 (1992) (footnote omitted; citations omitted).

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¶5 In June 2018, Nichols filed a pro se WIS. STAT. § 974.06
postconviction motion. This motion raised the same seven claims as his May 2017
motion, but it added one new claim: that his trial, postconviction, and appellate
counsel were all constitutionally ineffective for not filing a motion for Judge
Miron’s recusal. Nichols stated in his motion that he was filing a pro se motion to
“undo the procedural default that [his appellate counsel] had placed [Nichols] in
by abandoning him and breaching the contract that [Nichols’] father had reached
with [appellate counsel].”

¶6 That same day, Nichols filed a pro se motion titled, “Verified motion
to disqualify judge,” asking Judge Miron to recuse himself from deciding Nichols’
June 2018 motion. In May 2020, Judge Miron issued an order denying Nichols’
recusal motion. Judge Miron retired later that year, prior to issuing a decision or
order on Nichols’ June 2018 motion.

¶7 The circuit court, Judge Sequin presiding, subsequently held a
hearing in May 2021 on Nichols’ June 2018 motion, wherein the court orally
denied seven of Nichols’ claims because the court found that they were previously
addressed in Judge Miron’s October 2017 order. The court allowed the parties to
brief the eighth claim. Following the hearing, Nichols moved for Judge Sequin’s
recusal due to her friendship with Judge Miron.

¶8 Thereafter, in July 2021, the circuit court issued a written order
reaffirming its oral ruling denying seven of Nichols’ claims. In that same order
the court also denied the eighth claim, finding that it was previously addressed in
Judge Miron’s May 2020 order and, therefore, was procedurally barred. Finally,
the court also denied Nichols’ request for recusal. Nichols moved for

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reconsideration, which the court denied. Nichols now appeals the court’s July
2021 order and its order denying his motion for reconsideration.

DISCUSSION

I. Judicial bias

¶9 In his motion seeking Judge Sequin’s recusal, Nichols argued that
recusal was required because Sequin was “good friends” with Judge Miron, who
prosecuted Nichols in an unrelated matter in the 1990s and was also the presiding
judge in Nichols’ 2007 case. Nichols also cited a newspaper article in which the
author discussed Judge Sequin’s investiture—at which Judge Miron administered
Sequin’s oath—and quoted Sequin as stating that Miron was a “mentor” to her.

¶10 At the hearing on Nichols’ June 2018 motion, Judge Sequin stated
that “Judge Miron’s father and my father practiced law together. Judge Miron and
I practiced law together for a short period of time before he became the district
attorney in Marinette County. And of course, he was the predecessor in … this
courtroom that I now serve on.” In the July 2021 order, Judge Sequin stated that
she had “little, if any, contact with Judge Miron” between 1994 and 2019.
Ultimately, Judge Sequin concluded that she was not required to recuse herself.

¶11 “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic
requirement of due process.’” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S.
868, 876 (2009) (alteration in original; citation omitted). “There is a presumption
that a judge has acted fairly, impartially, and without prejudice. The presumption
is rebuttable, placing the burden on the party asserting the bias to show that bias
by a preponderance of the evidence.” State v. Herrmann, 2015 WI 84, ¶24, 364
Wis. 2d 336, 867 N.W.2d 772 (citation omitted). Whether a judge’s partiality can

5
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reasonably be questioned is a question of law we review de novo. Miller v.
Carroll, 2020 WI 56, ¶15, 392 Wis. 2d 49, 944 N.W.2d 542.

¶12 “In evaluating whether a party has rebutted the presumption,
Wisconsin courts have taken both a subjective and objective approach.” Id., ¶21.
Under the subjective approach, a “judge shall disqualify himself or herself from
any civil or criminal action or proceeding when” he or she “determines that, for
any reason, he or she cannot … act in an impartial manner.” WIS. STAT.
§ 757.19(2)(g); see also Herrmann, 364 Wis. 2d 336, ¶144 n.12 (Ziegler, J.,
concurring) (stating that a judge who satisfies the statutory subjective test also
“satisfies the subjective due process recusal test by determining that he or she is
impartial”). “This statute ‘is clearly drafted so as to place the determination of
partiality solely upon the judge.’ A reviewing court decides objectively whether
the judge actually made the subjective determination.” State v. Pinno, 2014 WI
74, ¶93, 356 Wis. 2d 106, 850 N.W.2d 207 (citations omitted). A reviewing court
does not second-guess a judge’s subjective bias determination. See id.; State v.
Harrell, 199 Wis. 2d 654, 664, 546 N.W.2d 115 (1996).

¶13 Under the objective approach, we examine whether a party has
shown either actual bias or a serious risk of actual bias. See Herrmann, 364
Wis. 2d 336, ¶¶29-30. Actual bias occurs where objective facts demonstrate that a
judge actually treated a party unfairly. State v. Goodson, 2009 WI App 107, ¶9,
320 Wis. 2d 166, 771 N.W.2d 385. A serious risk of actual bias requires an
“‘objective inquiry’ into whether the circumstances ‘would offer a possible
temptation to the average … judge to … lead him [or her] not to hold the balance
nice, clear and true.’” Miller, 392 Wis. 2d 49, ¶24 (alteration in original; citation
omitted). A serious risk of actual bias will occur only in the “exceptional case
with ‘extreme facts.’” Id. (citation omitted).

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No. 2021AP1369

A. Subjective bias

¶14 Nichols first contends that we should conclude that Judge Sequin
acted impartially when she decided his June 2018 motion because her statement
that she could act in an impartial manner was not reasonable or credible and, thus,
was clearly erroneous. Nichols applies an incorrect legal standard in analyzing
Judge Sequin’s subjective bias determination.

¶15 Judge Sequin stated in her July 2021 order that her “professional
relationship with a respected colleague will in no way interfere with this [c]ourt’s
ability to be fair and impartial.” She reaffirmed this position when she denied
Nichols’ motion for reconsideration, stating, “Any relationship with Judge Miron
holds no influence over this [c]ourt’s ability to render a fair, independent and
unbiased decision in any matter.” Therefore, Judge Sequin made a subjective
determination that she was not biased, which complied with WIS. STAT.
§ 757.19(2)(g) and the subjective due process test. See Pinno, 356 Wis. 2d 106,
¶93. She therefore correctly determined that she was not required to recuse herself
due to subjective bias.

¶16 Nichols asserts that not applying a clearly erroneous standard of
review to Judge Sequin’s subjective bias determination is contrary to the
legislative intent behind WIS. STAT. § 757.19(2)(g). Nichols does not address the
above-cited Wisconsin precedent (relied on by the State) and, instead, claims that
“[a]ll cases cited by the State to support its position should be rejected, ignored, or
overruled because they slavishly adhere to the … judge’s determination that he or
she can be impartial regardless of the fact that [the] determination is not credible.”
Even if we were to consider these arguments persuasive, which we do not, we are
bound by our supreme court’s interpretation of § 757.19(2)(g). See Pinno, 356

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No. 2021AP1369

Wis. 2d 106, ¶93; Harrell, 199 Wis. 2d at 664; Cook v. Cook, 208 Wis. 2d 166,
189, 560 N.W.2d 246 (1997) (“The supreme court is the only state court with the
power to overrule, modify or withdraw language from a previous supreme court
case.”).

¶17 Nichols cites to non-Wisconsin precedent, Walberg v. Israel, 766
F.2d 1071 (7th Cir. 1985), in support of his proposition that Judge Sequin’s
subjective determination was not reasonable or credible, and in doing so,5 he fails
to provide a pinpoint citation within Walberg for this assertion. Even so, after
reviewing Walberg, we do not find its holding pertinent to our disposition of this
case and our subjective bias analysis. In Walberg, the United States Court of
Appeals for Seventh Circuit reversed a defendant’s conviction after it concluded
that the circuit court judge’s “appearance was of a judge who had made up his
mind at the start that the defendant was guilty and who proceeded to intimidate the
defendant’s lawyer so that the proceeding could be got[ten] over with and
[the defendant] shipped off to prison for many years.” Id. at 1077-78. The court’s
conclusion had nothing to do with the judge’s subjective belief that he was not
biased, but it was instead based upon an objective bias analysis.

¶18 In addition, Nichols argues that “no judge worth their salt is ever
going to admit that they cannot be fair and impartial and remain a judge.” This
proposition is conclusory and preposterous. Nichols’ statement is contrary to the

5
Nichols also cites to United States v. Chancey, 715 F.2d 543 (11th Cir. 1983), for the
proposition that we should subject Judge Sequin’s subjective bias determination to the clearly
erroneous standard of review. That case dealt with a sufficiency of the evidence challenge to a
conviction following a jury trial. Id. at 546. Specifically, the court concluded that no reasonable
jury could have found one of the State’s key witnesses credible. Id. at 546-47. Chancey has
absolutely no relevance to the analysis at issue here, and we do not find it persuasive.

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oath taken by judges and does not overcome the presumption of impartiality we
afford to Judge Sequin. As part of their oath of office, judges in Wisconsin
“solemnly swear” to “support the constitution of the United States and the
constitution of the state of Wisconsin”; to “administer justice without respect to
persons”; and to “faithfully and impartially discharge the duties of said office to
the best of [their] ability.” WIS. STAT. § 757.02(1); see also WIS. CONST. art. IV,
§ 28; SCR 60.04.

B. Objective bias

¶19 Next, Nichols argues that Judge Sequin should have recused herself
because there was a serious risk of actual bias in allowing her to decide his June
2018 motion. In other words, Nichols claims that Judge Sequin was objectively
biased against him.6 In support of this argument, Nichols cites to Judge Sequin’s
relationship with Judge Miron: Miron administered the oath of office to Sequin as
a circuit court judge, and the “City of Marinette has two judges in it”—“the
smallest law firm imaginable.”7 He also argues that various newspaper articles
demonstrate that the two judges “worked together at the same family law firm,

6
At one point in his brief-in-chief, Nichols states that all of the Marinette County Circuit
Court judges “would defer to each other’s decisions without even any analysis of Nichols’
grounds for relief to reconsider law of the case under the manifest injustice exception, and that is
exactly what happened in this case.” To the extent Nichols attempts to raise an argument that
Judge Sequin demonstrated actual bias toward him, we deem that argument to be undeveloped, as
it is supported only by a single general statement, and we do not consider it further. See State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).
7
Nichols relies on the dissent in Tesco American, Inc. v. Strong Industries, Inc., 221
S.W.3d 550 (Tex. 2006) (Hecht, J., dissenting), to support his position that the “City of
Marinette” is a law firm. We do not find this case persuasive for several reasons. Most notably,
Tesco was decided outside of our jurisdiction, and the majority opinion’s conclusion rested on
non-Wisconsin law. See id. at 553-54.

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knew each other’s parents, and basically grew up together in both a personal and
professional relationship.”

¶20 We conclude that Nichols fails to show by a preponderance of
evidence that there was a serious risk of actual bias by Judge Sequin ruling on
Nichols’ June 2018 motion. Nichols’ argument can be summarized as
follows: Judge Miron was biased when he presided over Nichols’ trial and,
through a professional and personal relationship with Miron, Judge Sequin could
not impartially decide Nichols’ June 2018 motion. These assertions are far from
the “extreme facts” necessary to establish a serious risk of actual bias and do not
lead us to conclude by a preponderance of the evidence that a reasonable person
would question Judge Sequin’s impartiality. See Miller, 392 Wis. 2d 49, ¶24
(citation omitted).

¶21 Even assuming, without deciding, that there was a due process issue
with regard to Judge Miron presiding over Nichols’ 2007 trial, there is nothing in
the record that shows that a due process violation continued in a manner that
would create a serious risk of actual bias when Judge Sequin decided Nichols’
June 2018 motion. No reasonable person would be concerned that Judge Sequin
would be biased in deciding an issue in a case involving Nichols merely because
she briefly practiced law with Judge Miron roughly thirty years prior. Further,
there is no basis to conclude that there was a serious risk of actual bias by Judge
Sequin presiding over Nichols’ motion because she had a friendly relationship
with Judge Miron. That is, there is nothing in the record to suggest that Judge
Miron’s prosecution of Nichols in the 1990s had any bearing on Judge Sequin’s
ability to impartially address his postconviction motions related to a 2007 case.
This is not the “exceptional case with ‘extreme facts’” that gives rise to the

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perception of a serious risk of actual bias.8 See Miller, 392 Wis. 2d 49, ¶24
(citation omitted).

II. June 2018 motion

¶22 Next, Nichols asserts that the circuit court erred when it denied his
June 2018 motion without an evidentiary hearing. A WIS. STAT. § 974.06 motion
for postconviction relief may be made at any time after the time for appeal or
postconviction remedy provided in WIS. STAT. § 974.02 has expired.
See § 974.06(2); State v. Balliette, 2011 WI 79, ¶34, 336 Wis. 2d 358, 805
N.W.2d 334. However, a defendant is generally barred from raising claims in a
§ 974.06 motion that were or could have been raised on direct appeal or in a
previous § 974.06 motion unless he or she presents a “sufficient reason” for failing
to raise those claims previously or failing to do so adequately. See § 974.06(4).
The burden is on the defendant to show the existence of a sufficient reason. State
v. Crockett, 2001 WI App 235, ¶10 n.3, 248 Wis. 2d 120, 635 N.W.2d 673.
Further, a “matter once litigated may not be relitigated in a subsequent
postconviction proceeding no matter how artfully the defendant may rephrase the
issue.” State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App.
1991). Whether claims raised in a § 974.06 motion are procedurally barred is a

8
Although unclear, Nichols appears to argue at times that Judge Miron should have
granted Nichols’ recusal motion. As noted above, however, after denying Nichols’ recusal
motion, Judge Miron retired and therefore did not decide Nichols’ June 2018 postconviction
motion. As such, Nichols ultimately obtained the relief he sought in his motion to recuse Judge
Miron—that is, having a different judge decide his June 2018 motion. Under these
circumstances, Judge Miron’s denial of Nichols’ recusal motion does not provide a basis to
reverse Judge Sequin’s orders denying the June 2018 motion and Nichols’ subsequent motion for
reconsideration.

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question of law that we review de novo. State v. Thames, 2005 WI App 101, ¶10,
281 Wis. 2d 772, 700 N.W.2d 285.

¶23 “In some instances, ineffective assistance of postconviction counsel
may be a sufficient reason for failing to raise an available claim in an earlier
motion or on direct appeal.”9 State v. Romero-Georgana, 2014 WI 83, ¶36, 360
Wis. 2d 522, 849 N.W.2d 668. A defendant must demonstrate, however, that the
new claims are “clearly stronger” than the claims postconviction counsel
presented. Id., ¶¶45-46.

¶24 A defendant is entitled to an evidentiary hearing on his or her WIS.
STAT. § 974.06 motion unless the motion fails to allege “facts sufficient to entitle
the movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief.”
Romero-Georgana, 360 Wis. 2d 522, ¶30 (citation omitted); see also § 974.06(3).
If the defendant fails to meet the pleading standards in § 974.06(4), the circuit
court does not erroneously exercise it’s discretion by denying the motion without a
hearing. See Romero-Georgana, 360 Wis. 2d 522, ¶¶54, 71.

9
Where counsel’s alleged error took place is particularly important. A defendant
seeking to challenge postconviction counsel’s effectiveness for his or her failure to challenge trial
counsel’s effectiveness must file a motion under WIS. STAT. § 974.06 in a circuit court. See State
ex. rel. Warren v. Meisner, 2020 WI 55, ¶¶16-36, 392 Wis. 2d 1, 944 N.W.2d 588. Conversely,
a defendant seeking to challenge postconviction counsel’s effectiveness for errors that occurred in
the appellate setting must file a writ of habeas corpus in this court. See id. In other words, the
proper avenue for relief is determined by asking whether the “alleged error … occurred prior to
the filing of the notice of appeal” or after. See id., ¶45.

To the extent Nichols argues on appeal that his appellate counsel was ineffective for
failing to file a timely appeal of the circuit court’s October 2017 order, such a claim would need
to be independently sought in this court by way of a writ of habeas corpus. See id., ¶36.

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¶25 Nichols’ May 2017 WIS. STAT. § 974.06 motion alleged that his
postconviction counsel was constitutionally ineffective for failing to timely file a
WIS. STAT. § 974.02 motion alleging that his trial counsel rendered ineffective
assistance in seven ways. The circuit court denied all seven of those claims on
their merits in its October 2017 order, without conducting an evidentiary hearing,
and Nichols did not appeal that order. It is undisputed that the seven ineffective
assistance of counsel claims raised in Nichols’ May 2017 motion are nearly
identical—if not actually identical—to the first seven claims raised in his June
2018 motion. Thus, Nichols is barred from raising those seven issues again and he
was not entitled to an evidentiary hearing. See Witkowski, 163 Wis. 2d at 990.

¶26 Nichols also argues that the circuit court “erroneously exercised [its]
discretion by summarily denying” his May 2017 motion without an evidentiary
hearing. Similarly, Nichols asserts that the seven ineffective assistance of
postconviction counsel claims were not finally adjudicated because the circuit
court “summarily denied” his motion in its October 2017 order. He argues that
despite the fact that he did not appeal the court’s order denying his May 2017
motion, we should still review that order.

¶27 The cases cited by Nichols in support of this assertion are to cases
explaining that “ineffective assistance of postconviction counsel may be a
sufficient reason for failing to raise an available claim in an earlier motion or on
direct appeal.” See, e.g., Romero Georgana, 360 Wis. 2d 522, ¶36. Further,
Nichols cites to two United States Supreme Court cases without pinpoint citation,
arguing, “post-conviction counsel abandoning his client and not filing a notice of
appeal from the trial court’s denial of a post-conviction motion also constitutes
cause for excusing procedural default.” But his failure to file an appeal is
jurisdictional, not procedural. See State v. Sorenson, 2000 WI 43, ¶16, 234

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No. 2021AP1369

Wis. 2d 648, 611 N.W.2d 240 (“The timely filing of a notice of appeal is
necessary to give the court of appeals subject matter jurisdiction over an appeal.”);
see also WIS. STAT. RULE 809.10(1)(e). Here, the issues in the May 2017 motion
were raised, but Nichols simply failed to appeal the circuit court’s decision
denying those issues. Thus, we do not have jurisdiction to consider the merits of
Nichols’ arguments related to the court’s order denying his May 2017 motion.10

¶28 We further conclude that Nichols’ eighth claim—that his trial,
postconviction, and appellate counsel were all constitutionally ineffective for not
raising the claim that Judge Miron should have recused himself from the 2007
case—was also properly denied on procedural grounds.11 First, as it relates to his
trial and postconviction counsel, Nichols could have, but failed to, raise ineffective
assistance of counsel claims in his May 2017 motion. Therefore, unless Nichols
provided a sufficient reason to the circuit court for failing to raise those claims in
his May 2017 motion, he was procedurally barred from raising the claims in his
June 2018 motion. See Thames, 281 Wis. 2d 772, ¶10 (we may affirm a circuit
court’s denial of a WIS. STAT. § 974.06 motion employing different reasoning than
that of the court).

¶29 Nichols’ June 2018 motion failed to provide any reason for this
failure other than to argue in a conclusory fashion that his postconviction and

10
Nichols cites to a number of cases from outside of this jurisdiction, including a
Maryland appellate court decision and a United States Bankruptcy Court decision, to argue that
the circuit court erroneously exercised its discretion. We do not find these cases persuasive
because they are from outside of our jurisdiction and, therefore, do not aid in our analysis of WIS.
STAT. § 974.06 or the circuit court’s actions in this case based upon Wisconsin law.
11
We interpret Nichols’ eighth claim to be that all of his previous counsel failed to allege
that Judge Miron was, or appeared to be, unconstitutionally biased against Nichols at the time of
the 2007 case.

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appellate counsel were ineffective. See Romero-Georgana, 360 Wis. 2d 522, ¶64
(“We will not read into the [WIS. STAT.] § 974.06 motion allegations that are not
within the four corners of the motion.”). Nichols attempts to avoid the procedural
bar by pointing to arguments he made in his brief-in-chief. However, we do not
consider arguments that Nichols makes now, we consider the arguments he made
in his motion. See Romero-Georgana, 360 Wis. 2d 522, ¶64.

¶30 Second, regarding his postconviction and appellate counsel, Nichols
failed to demonstrate that his eighth claim (that Judge Miron should have recused
himself from the 2007 case) is “clearly stronger” than the claims that
postconviction and appellate counsel actually pursued. See id., ¶¶45-46. Nichols
was required to make this showing “by alleging ‘sufficient material facts—e.g.,
who, what, where, when, why, and how—that, if true, would entitle him to the
relief he seeks.’ The five ‘w’s’ and one ‘h’ sometimes run together, but a
sufficient motion will answer all six questions.” See id., ¶58 (citation omitted).
Nichols’ June 2018 motion simply stated that had “appellate/postconviction
counsel filed” a motion for a new trial because Judge Miron was or appeared to be
biased against him, the circuit court “would have been constitutionally required”
to order a new trial. His motion failed to explain “why” a bias claim was valid,
much less why it was stronger than any of the other previously raised claims.12

12
“[I]n evaluating the comparative strength of the claims, reviewing courts should
consider any objectives or preferences that the defendant conveyed to his [or her] attorney. A
claim’s strength may be bolstered if a defendant directed his attorney to pursue it.” State v.
Romero-Georgana, 2014 WI 83, ¶73, 360 Wis. 2d 522, 849 N.W.2d 668. Here, Nichols’ June
2018 motion did not allege that he instructed any of his counsel to pursue a bias claim, and we do
not consider his arguments to the contrary on appeal.

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¶31 On appeal, Nichols does argue that the bias claim against Judge
Miron was clearly stronger than the other pursued claims because a bias claim is
not subject to harmless error. Even if we were to consider this argument, see id.,
¶64, and even if we were to assume that Nichols’ previously pursued claims were
subject to harmless error, we would conclude that his argument still lacks merit.
Nichols fails to state why that claim is clearly better than the other claims brought
in terms of likelihood of success. Under these circumstances, Nichols’ June 2018
motion failed to adequately allege that the ineffective assistance of counsel claim
related to Judge Miron’s purported bias is clearly stronger than the previous issues
addressed in his direct appeal or in his other postconviction motions. Accordingly,
Nichols failed to demonstrate a sufficient reason for failing to raise this claim
previously.

¶32 Nichols contends that the State is “estopped” from arguing that he
did not present a “sufficient reason” because the State has “unclean hands” and
that it is the “cause of the errors.” We deem these arguments undeveloped. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). Nichols
fails to explain why he is not required to comply with WIS. STAT. § 974.06 and
does not attempt to distinguish the facts of this case from the mandates in
§ 974.06, as applied through well-established case law, requiring him to
demonstrate a sufficient reason for his failure to adequately raise the eighth claim.
See § 974.06(4).

¶33 Nichols also contends that the circuit court “automatically sided
with” the court’s October 2017 order when issuing its decision on Nichols’ June
2018 motion “without even discussing Nichols’ grounds for relief.” As discussed,
the court was not required to entertain Nichols’ claims that were “finally
adjudicated” previously. See WIS. STAT. § 974.06(3), (4). According to Nichols,

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the court was still required to “[d]etermine the issues and make findings of fact
and conclusions of law” pursuant to § 974.06(3)(d). However, that statutory
provision applies only if the court is required to hold an evidentiary hearing. Here,
“the motion and the files and records of the action conclusively show that
[Nichols was] entitled to no relief,” based on the procedural bar. See § 974.06(3).

¶34 Lastly, Nichols asserts that Wisconsin jurisprudence—specifically,
our supreme court’s decision in State ex rel. Warren v. Meisner, 2020 WI 55, ¶36,
392 Wis. 2d 1, 944 N.W.2d 588—defining a defendant’s right to raise ineffective
assistance of appellate counsel violates due process. Regardless of the merits of
his claim, we cannot overrule published opinions from this court or our supreme
court precedent unless a subsequent decision of the United States Supreme Court
is in conflict with that precedent on a question of federal law. See Cook, 208
Wis. 2d at 189-90; State v. Harvey, 2022 WI App 60, ¶44, 405 Wis. 2d 332, 983
N.W.2d 700. Nichols does not argue that such a subsequent case exists, and we
are therefore bound by our supreme court’s decision in Meisner.

By the Court.—Orders affirmed.

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

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