State v. Mario Emmanuel James

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.
May 27, 2020
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. 2019AP730 Cir. Ct. No. 2013CF209

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARIO EMMANUEL JAMES,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
T. CHRISTOPHER DEE, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, 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. 2019AP730

¶1 PER CURIAM. Mario Emmanuel James, pro se, appeals the order
denying his WIS. STAT. § 974.06 (2017-18)1 motion without a hearing. James
argues that his postconviction counsel was ineffective for not raising stronger
claims and that he has newly discovered evidence. We disagree and affirm.

I. BACKGROUND

¶2 This court has previously summarized the relevant facts of James’s
case. See State v. James, No. 2016AP981-CR, unpublished slip op. ¶¶2-9 (WI
App Sept. 19, 2017). For purposes of this appeal, it suffices to state that a jury
found James guilty of one count of armed robbery with the use of force as a party
to a crime and one count of burglary, arming himself with a dangerous weapon
while within the burglarized enclosure, as a party to a crime. This court affirmed
the judgment of conviction and the order denying James’s motion for
postconviction relief. See id., ¶1. The Wisconsin Supreme Court subsequently
denied James’s petition for review.

¶3 In the underlying WIS. STAT. § 974.06 motion, James argued that his
postconviction counsel was ineffective for not arguing that the State violated
Brady v. Maryland, 373 U.S. 83 (1963), and for not arguing that trial counsel was
ineffective. James additionally argued that he had newly discovered evidence and

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP730

that he was entitled to a new trial in the interest of justice. The postconviction
court denied James’s motion without a hearing.2

¶4 This appeal follows. We provide additional background information
as needed below.

II. DISCUSSION

¶5 A defendant must “raise all grounds regarding postconviction relief
in his or her original, supplemental or amended motion.” State v. Escalona-
Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994); WIS. STAT. § 974.06.
He or she is procedurally barred from using § 974.06 to raise new issues absent a
sufficient reason for not raising the issues earlier. See Escalona, 185 Wis. 2d at
184-85; § 974.06(4).

¶6 We must decide whether James’s postconviction motion is sufficient
on its face to entitle him to an evidentiary hearing. A hearing is required “only
when the movant states sufficient material facts that, if true, would entitle the
defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682
N.W.2d 433. Whether the motion alleges sufficient material facts is a question of
law. Id., ¶9. If it does, the circuit court must hold a hearing. Id. If it does not, or
if it presents only conclusory allegations, or if the record conclusively shows the
defendant is not entitled to relief, the decision to grant or deny a hearing is left to

2
The Honorable T. Christopher Dee decided James’s WIS. STAT. § 974.06 motion, and
we refer to him as the postconviction court. The Honorable Jonathan D. Watts presided over the
jury trial and sentenced James, and the Honorable Frederick C. Rosa denied James’s WIS. STAT.
§ 974.02 postconviction motion. We refer to both as the circuit court.

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the circuit court’s discretion. Id. “We review a circuit court’s discretionary
decisions under the deferential erroneous exercise of discretion standard.” Id.

A. Postconviction Counsel’s Ineffectiveness

¶7 We begin with James’s arguments that postconviction counsel was
ineffective. To prove ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficiency prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant
“must prevail on both parts of the test to be afforded relief.” Allen, 274 Wis. 2d
568, ¶26. We independently review “the legal questions of whether deficient
performance has been established and whether it led to prejudice rising to a level
undermining the reliability of the proceeding.” State v. Roberson, 2006 WI 80,
¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation omitted). However, “[a] court
need not address both components of this inquiry if the defendant does not make a
sufficient showing on one.” State v. Smith, 2003 WI App 234, ¶15, 268 Wis. 2d
138, 671 N.W.2d 854.

¶8 Ineffective assistance of postconviction counsel may be a sufficient
reason for failing to raise a claim in a prior motion. State v. Romero-Georgana,
2014 WI 83, ¶36, 360 Wis. 2d 522, 849 N.W.2d 668. As part of showing deficient
performance, “a defendant who alleges in a [WIS. STAT.] § 974.06 motion that his
postconviction counsel was ineffective for failing to bring certain viable claims
must demonstrate that the claims he wishes to bring are clearly stronger than the
claims postconviction counsel actually brought.” Id., ¶¶4, 45-46. However, we
need not analyze whether James’s new claims are clearly stronger than the ones
previously raised. As set forth below, James has not demonstrated that he was
prejudiced by postconviction counsel’s alleged deficiencies.

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1. Brady Violation

¶9 In his WIS. STAT. § 974.06 motion, James argued that postconviction
counsel was ineffective for not arguing that the State violated Brady by failing to
disclose his cell phone data. To establish a Brady violation, a defendant must
show that the State suppressed the evidence in question, that the impeachment or
exculpatory evidence was favorable to him or her, and that the evidence was
material to the determination of his or her guilt or punishment. State v. Rockette,
2006 WI App 103, ¶39, 294 Wis. 2d 611, 718 N.W.2d 269.

¶10 According to James, “[t]he non[]disclosed cell phone data and report
is favorable to [him] because the data retrieved from the phone, when analyzed …
will conclude that [he] was in fact not present to have committed the crime[.]”
However, at a pretrial hearing, James requested the cell phone data at issue. In
response, the State informed the circuit court that it had not had James’s cell
phone data analyzed so as to determine his location. As summed up by the
postconviction court in its decision, “the State did not have a chart establishing the
whereabouts of [James]’s phone during the period in question because it never
pursued an investigation into the matter.”

¶11 Given that the evidence James sought did not exist, the State did not
violate Brady by suppressing it. Because this claim is meritless, James has not
established prejudice by postconviction counsel’s failure to pursue it. See State v.
Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662 (Ct. App. 1994).

2. Alibi Defense and Cell Phone Data

¶12 James additionally argued that postconviction counsel was
ineffective for not arguing that trial counsel was ineffective for failing to

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No. 2019AP730

investigate his alibi defense and for not pursuing the cell phone data. We address
each argument in turn.

¶13 Regarding his alibi defense, James argued that if trial counsel had
investigated, he would have discovered that James was in court “the entire
morning of October 27, 2010,” the day of the crime. James claimed that he told
trial counsel to discuss this with the attorney who represented him during the
October 27, 2010 court proceeding. Armed with the information relating to his
presence in court, James asserted he would have had “strong proof” refuting co-
actor Anthony Santiago’s trial testimony about when James picked Santiago up
that day.

¶14 The victim testified that the robbery occurred around noon on
October 27, 2010. Santiago testified that James first came and picked him up
“[e]arlier that day like around noon.” James’s motion does not allege facts that
would establish an alibi. His morning court appearance does not account for his
whereabouts at the time the crimes occurred. James has not established prejudice
by postconviction counsel’s failure to pursue this issue. See Strickland, 466 U.S.
at 694 (establishing prejudice requires a showing that that but for counsel’s
unprofessional errors, there is a reasonable probability that the result of the trial
would have been different).

¶15 Next, James argued that postconviction counsel was ineffective for
not challenging trial counsel’s unreasonable decision not to pursue exculpatory
cell phone evidence.

¶16 During trial, the State presented expert testimony that two of James’s
co-actors made calls near the victim’s home. If he was present at the crime, James
argues that there would have been similar cell phone data for his phone. Had trial

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No. 2019AP730

counsel sought the missing cell phone data and used it effectively, James claimed
that the jury would have had exculpatory factual evidence placing him in a
different location at the time of the crime.

¶17 James’s argument that his cell phone data was exculpatory is
speculative. Where a claim of ineffective assistance of counsel is based solely on
speculation, it fails to meet the prejudice prong of Strickland. See State v.
Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 616 N.W.2d 126 (explaining
that “[a] defendant must base a challenge to counsel’s representation on more than
speculation”); see also State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d 749
(1999).

B. Newly Discovered Evidence

¶18 Next, James argued that he has newly discovered evidence that
Santiago committed perjury during James’s trial. The test for reviewing a request
for a new trial based on newly discovered evidence is well established:

In order to set aside a judgment of conviction based
on newly[ ]discovered evidence, the newly[ ]discovered
evidence must be sufficient to establish that a defendant’s
conviction was a manifest injustice. When moving for a
new trial based on the allegation of newly[ ]discovered
evidence, a defendant must prove: (1) the evidence was
discovered after conviction; (2) the defendant was not
negligent in seeking the evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not
merely cumulative. If the defendant is able to prove all
four of these criteria, then it must be determined whether a
reasonable probability exists that had the jury heard the
newly[ ]discovered evidence, it would have had a
reasonable doubt as to the defendant’s guilt.

A reasonable probability of a different outcome
exists if there is a reasonable probability that a jury,
looking at both the [old evidence] and the [new evidence],
would have a reasonable doubt as to the defendant’s guilt.
A court reviewing newly[ ]discovered evidence should

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No. 2019AP730

consider whether a jury would find that the
newly[ ]discovered evidence had a sufficient impact on
other evidence presented at trial that a jury would have a
reasonable doubt as to the defendant’s guilt. This latter
determination is a question of law. Manifest injustice has
been shown and a new trial must be ordered when: (1) the
four factors of newly[ ]discovered evidence are established;
and (2) a court determines that had a jury heard the
newly[ ]discovered evidence, it would have had a
reasonable doubt as to the defendant’s guilt.

State v. Plude, 2008 WI 58, ¶¶32-33, 310 Wis. 2d 28, 750 N.W.2d 42 (internal
quotations and citations omitted; brackets in Plude).

¶19 James argued that Santiago perjured himself when he testified about
his plea agreement with the State. James claimed that he discovered, after
reviewing Santiago’s sentencing transcript, that Santiago lied to the jury when he
said that he did not have an agreement with the State that linked his testimony
against James to the State’s sentencing recommendation.

¶20 During James’s trial, the State asked Santiago about the agreement
he entered into when he pled guilty to armed robbery and possessing firearms as a
felon for his role in the underlying crimes. Santiago testified: “I believe the plea
bargain was [twenty] in, ten out.” When questioned further, Santiago explained
that he was not promised anything to testify, but that he hoped the State would
recommend a lesser sentence.

¶21 At Santiago’s sentencing, the State confirmed that when Santiago
pled guilty, its sentencing recommendation was twenty years’ initial confinement,
to be followed by ten years’ extended supervision. The State additionally
explained that after Santiago entered his plea, he agreed to testify against James at
trial, “[a]nd the agreement was that he was testifying and agreeing to testify in the
hopes of some consideration on his open case, being this case.”

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No. 2019AP730

¶22 The State’s explanation is consistent with Santiago’s testimony.
Consequently, James’s claim that he has presented newly discovered evidence that
Santiago falsely testified about the plea agreement he had with the State fails.

¶23 Next, James argued that Santiago lied to the jury about his military
service. During James’s trial, Santiago testified that he was in the military for six
years and was in combat in Iraq for eighteen months. James claimed that he has
newly discovered evidence in the form of a letter from the National Personnel
Records Center, which states that Santiago was in the army reserves from
November 2004 through May 2008 and that he performed “no active duty … other
than for training purposes.”

¶24 Even if we conclude that the letter satisfies the first four criteria of
the newly discovered evidence test, James’s claim still fails. During his
testimony, Santiago admitted that he initially lied to the police and also admitted
that he committed the underlying armed robbery. We are wholly unconvinced that
a jury would have had a reasonable doubt as to James’s guilt if Santiago had been
impeached—and had his credibility been further challenged—with a letter
suggesting that he embellished his military service. See id., ¶33.

¶25 James does not renew the argument he made in his postconviction
motion that reversal is appropriate in the interest of justice because the real
controversy was not fully tried. See A.O. Smith Corp. v. Allstate Ins. Cos., 222
Wis. 2d 475, 493, 588 N.W.2d 285 (Ct. App. 1998) (“[W]hen a party fails to argue
an issue in its main appeal brief, the appellate court may treat the issue as having
been abandoned, even though the issue was presented to the [circuit] court.”).
Instead, on appeal, he argues that we can use our authority under WIS. STAT.

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No. 2019AP730

§ 752.35 to order a new trial on grounds that his newly discovered evidence claim
establishes a manifest injustice.

¶26 WISCONSIN STAT. § 752.35, however, provides that we may order a
new trial in the interest of justice only on two grounds: “that the real controversy
has not been fully tried, or that it is probable that justice has for any reason
miscarried[.]” Because James has not argued that either of these grounds apply
and because we have already concluded that his evidence does not satisfy the
newly discovered evidence test, this claim fails.

¶27 Accordingly, we affirm the order of the postconviction court
denying James’s WIS. STAT. § 974.06 motion without a hearing.

By the Court.—Order affirmed.

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

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