State v. Duanne D. Townsend

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.
June 9, 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. 2019AP787 Cir. Ct. No. 2011CF1590

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DUANNE D. TOWNSEND,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Reversed and cause remanded with directions.

Before Brash, P.J., Dugan and Donald, JJ.

¶1 BRASH, P.J. Duanne D. Townsend appeals from an order of the
circuit court denying his WIS. STAT. § 974.06 (2017-18)1 motion without a hearing.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
No. 2019AP787

In his motion, Townsend argued that postconviction counsel for his direct appeal
was ineffective in the presentation of Townsend’s claims that his trial counsel was
ineffective in multiple ways.

¶2 One of those claims relating to trial counsel’s ineffective assistance
was that counsel conceded Townsend’s guilt and abandoned self-defense as a theory
during his trial. Townsend renewed that claim in his WIS. STAT. § 974.06 motion,
asserting that pursuant to the recently decided case McCoy v. Louisiana, 138 S. Ct.
1500 (2018), counsel’s alleged concession was a structural error that entitles him to
a new trial.

¶3 Additionally, in his current motion Townsend sought postconviction
discovery of the medical records of one of the victims in this case. He argued that
those records would further support his theory of self-defense.

¶4 The circuit court rejected all of Townsend’s claims. The court ruled
that McCoy was inapposite in this case, and also found that Townsend’s claims in
his WIS. STAT. § 974.06 motion were procedurally barred. Moreover, the court
reviewed Townsend’s claims on the merits, concluding that his trial counsel was not
ineffective, and thus Townsend’s current claim that postconviction counsel was
ineffective necessarily failed.

¶5 We agree that McCoy is inapposite based on the facts of this case.
However, we conclude that with regard to his claim of ineffective assistance of
postconviction counsel, Townsend has pled sufficient facts in his WIS. STAT.
§ 974.06 motion and is therefore entitled to a postconviction evidentiary hearing.

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BACKGROUND

¶6 This case stems from a shooting in April 2011 at an apartment
building on West Locust Street in Milwaukee. It resulted in the death of Brandon
Thomas, as well as injuries to two other victims, L.T. and J.W. Townsend was
charged with first-degree intentional homicide and two counts of attempted first-
degree intentional homicide for the shooting.

¶7 The shooting was apparently the result of an ongoing dispute between
families. As L.T. explained to police and later testified to at Townsend’s trial,
several hours before the shootings, Townsend had gotten into an altercation with
Rickey Woods, a friend of L.T.’s. Woods had allegedly left several threatening
messages for Townsend’s sister, Simone Stewart. This fight took place at L.T.’s
apartment. J.W., who is the father of L.T.’s daughter, was at L.T.’s apartment
during the altercation, but had “passed out” on the couch after drinking.
Additionally, Townsend’s girlfriend, April Brown, subsequently arrived at L.T.’s
apartment just before the altercation began. Thomas, who was L.T.’s cousin, was
not there at that time.

¶8 L.T. testified that Townsend had a black nine-millimeter gun with an
extended clip that he brandished when he arrived at L.T.’s apartment. However,
Woods was not shot during this altercation; rather, he was beaten by Townsend, his
brother, Antonio Stewart, and another man L.T. did not know. L.T. stated that these
men beat Woods with pistols and “some brooms, some mops, some trash cans,
whatever” they found in the hallway outside of L.T.’s apartment. Townsend and
the other men, along with Brown, then left the apartment building, and L.T. took
Woods into her apartment to tend to his wounds.

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¶9 L.T. stated that she was afraid that Townsend and the other men would
return. As a result, L.T., Woods, and J.W., took her children to a friend’s house.
Thomas arrived as they were leaving. L.T. said that Thomas made a phone call
during which she heard him request a “banger”—a firearm. L.T. also noted that
J.W. had discussed getting a Mossberg shotgun. However, L.T. testified that she
never saw Thomas or J.W. with a gun that night.

¶10 L.T. explained that as she, Thomas, and J.W. were going back to her
apartment, they saw Townsend, Brown, Antonio, and Simone outside one of the
entrances to L.T.’s apartment building; Simone also lived in that building. L.T.
stated that Townsend was again brandishing the same gun that he had earlier during
the altercation with Woods. Townsend’s group called L.T.’s group over to where
they were standing. L.T. said that initially it was a “normal conversation” between
the two groups, but that the conversation soon turned heated as they began
discussing the altercation with Woods, and the fact that Townsend had come to
L.T.’s apartment earlier with a gun.

¶11 L.T. explained that the groups then moved into Simone’s apartment
where the argument escalated. Townsend made a comment reminding the others
that he had a gun; J.W. replied that “once they gave you a gun they didn’t stop
making guns,” and that he could “go get a Mossberg [shotgun] and blow you as
well.”

¶12 It was during this heated exchange that Townsend shot L.T. and J.W.
L.T. fell to the floor, with J.W. falling next to her, where he shielded her from further
shots. L.T. saw Thomas “ma[k]e a run for it”—he ran for the door of the apartment,
and had to jump over L.T. and J.W. as they lay on the floor. L.T. then saw Townsend
shoot Thomas.

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¶13 Milwaukee Police Officers who were in the area on an unrelated call
came upon L.T. laying on the ground outside of the apartment building. She was
conscious, and told the officers she had been shot. Officers found J.W. and Thomas
lying outside the building as well. Other responding officers saw Townsend exiting
the rear of the building; when Townsend saw the officers, he ran back inside.
Officers located him in a vacant apartment and took him into custody. The officers
also found two guns in that vacant apartment: a nine-millimeter Ruger lying on top
of a black extended clip, and a .32 caliber revolver that was silver steel with a light
wood handle which resembled a “cowboy gun[.]”

¶14 L.T. and J.W. were taken to the hospital where they were both treated
for multiple gunshot wounds: J.W. had several shots to his chest, back, stomach,
and his right and left arms; L.T. had two shots to her upper right chest and two shots
to her upper right back. Thomas was pronounced dead at the scene.

¶15 As previously noted, Townsend was charged with first-degree
intentional homicide in the shooting of Thomas and two counts of attempted first-
degree intentional homicide for shooting L.T. and J.W. He was also charged with
two counts of being a felon in possession of a firearm. The matter proceeded to trial
in April 2012.2

¶16 At trial, in addition to L.T., Detective Kevin Klemstein also testified.
He had interviewed L.T. while she was being treated at the hospital. Detective
Klemstein stated that L.T. told him that after she and J.W. had been shot, and
Thomas jumped over them as he was running out of the apartment, Thomas’s jacket
was open and she saw a large “Dirty Harry” gun that was “chrome-colored” with

2
Townsend’s trial was presided over by the Honorable Richard J. Sankovitz, who also
imposed his sentence. We refer to him as the trial court.

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No. 2019AP787

“brown on it.” L.T. told the detective that Thomas never pulled the gun out during
that second altercation. However, at trial L.T. testified that she never saw a gun on
Thomas, and that his jacket was zipped when he attempted to run out of the
apartment.

¶17 Additionally, in her police statement L.T. told Detective Klemstein
that she had seen Townsend take three Ecstasy pills that night, and had observed
him chewing them. However, when L.T. testified at trial she stated that she was not
sure whether it was Townsend or his brother who had taken the Ecstasy pills. She
further testified that this had occurred only ten to fifteen minutes before the
shooting—“not even enough time for the [Ecstasy pills] to kick in.” Furthermore,
Brown—Townsend’s girlfriend—testified that she had not seen Townsend take any
pills that night, and that she “[d]id [not] know him to take pills like that.”

¶18 Simone also testified. She stated that during the argument in her
apartment she heard J.W. say to Townsend “[y]ou don’t want to play with guns
because we got guns too.” At that point, Townsend and J.W. were facing each other,
and Simone saw J.W. lift his shirt as if he had a firearm in his waistband. Just after
the shooting, Simone found a silver revolver on the floor in her apartment. She
picked it up and screamed “whose gun is this?” Townsend came back into the
apartment, grabbed the gun from Simone, and ran back out. This was the silver gun
that was found with Townsend when he was taken into custody.

¶19 Simone initially told police that J.W. had the silver gun in his
waistband prior to the shooting; however, she later admitted that she had not seen

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J.W.—or Thomas or L.T.—with that or any other gun during the shooting incident.3
She further testified that the silver revolver did not belong to her, and that she had
not seen anyone with that gun that night.

¶20 J.W. testified that while still in L.T.’s apartment after the altercation
with Woods, when he was told that Townsend had a gun and might be coming back,
J.W. had made a comment that he should go get his gun. However, J.W. testified
that he did not arm himself that night. J.W. also admitted that he was still highly
intoxicated during the shooting incident, and therefore only remembered “[b]its and
pieces” of the events that night.

¶21 At the close of the State’s case, Townsend and his trial counsel
discussed the possibility of Townsend testifying. Counsel indicated to the trial court
that based on the evidence at that point, Townsend wanted to take the stand to
present evidence regarding a self-defense theory. However, that decision hinged on
whether the court was going to give the jury instructions regarding self-defense.
The State argued that the evidence was not sufficient to warrant the self-defense
instructions. It specifically noted that Simone’s testimony that J.W. lifted his shirt
as if he had a firearm in his waistband was not sufficient to warrant the instructions,
given that no one had seen J.W. with a firearm that night.

¶22 Earlier in the trial, the trial court had agreed with the State’s position.
At the end of the third day of trial—the day before the State rested—the trial court
had given the parties a “rough draft” of the proposed jury instructions. The court
did not include the self-defense instructions at that point “based on the evidence [it

3
Simone was charged with obstructing an officer for her initial statements to police about
the shooting, and for cleaning up the crime scene before police arrived. She pled guilty and was
sentenced to probation; as part of the plea bargain, she agreed to testify truthfully at Townsend’s
trial.

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No. 2019AP787

had] heard so far.” However, after the State rested, and the court heard arguments
by the parties on this issue, the court changed course:

If a jury believes that [J.W.] pulled up his shirt and had a gun
in his waistband, that silver revolver, would it be reasonable
for a jury to infer that Mr. Townsend shot because he thought
[J.W.] was going to pull out the revolver and shoot him or
somebody else in the room?

….

…I think when we’re looking at instructions like this,
what we’re trying to say is what would happen if the jury
believed a certain set of facts existed. I don’t think there’s
anything in here which will allow me, as a matter of law, to
say that the jury could not believe that [J.W.] was holding up
his shirt showing a gun that wasn’t in the room previously.

¶23 Therefore, the court ruled that it would give the self-defense
instructions to the jury, along with the instructions for lesser-included charges,
including first or second-degree reckless homicide and first or second-degree
recklessly endangering safety, as well as second-degree intentional homicide.
Townsend decided not to testify.

¶24 During closing arguments, the State refuted Townsend’s claim of self-
defense, stating that this was actually “a case of Mr. Townsend being angry and
pulling the gun and shooting three people.” Townsend’s trial counsel, on the other
hand, noted the chaotic nature of the incident and the conflicting testimony
surrounding it. He also mentioned the evidence regarding whether someone besides
Townsend was armed that night: the detective’s testimony that L.T. had told him
Thomas had a gun, and that Simone had found a silver gun after the shootings that
she did not recognize. Counsel suggested that the silver gun was the one L.T. saw
on Thomas. However, he never specifically stated that Townsend had acted in self-
defense.

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¶25 Additionally, trial counsel stated during his closing argument that
Townsend was high on Ecstasy at the time of the shootings. He then observed, “[s]o
this was all a preventable tragedy because if [Townsend] hadn’t taken three pills of
Ecstasy and been drinking, maybe he would [not] have made this terrible tragic
decision.” To rebut this remark and put the focus back on Townsend’s intent, the
State, in its rebuttal, noted “[s]o when self-defense fa[i]ls, we try to put this as
reckless because he’s high and he’s drunk.”

¶26 The trial court also noted this apparent change in defense strategy.
While the jury was deliberating, the court initiated the following exchange:

THE COURT: Mr. Townsend, in closing arguments
[trial counsel] suggested to the jury that it would be
acceptable to you if they find you guilty of the reckless
homicide [charge] based on all the circumstances. That’s his
choice to make as a professional. But I think it makes sense
at this point to ask if you agree with that strategy.

THE DEFENDANT: No.

THE COURT: And what strategy do you want to
pursue?

THE DEFENDANT: Weigh in, to put in their own
decision.

THE COURT: Okay. But you don’t want them to
take any particular verdict among the ones that are being
offered to them?

THE DEFENDANT: No, sir; I’m not sure to be
honest with you.

¶27 Townsend’s trial counsel then explained his strategy: “[o]bviously, I
do so not only because of the way the evidence came out but because of the potential
exposures that are out there. One is life. One is six years, and one is 12 and a half.”
The trial court posed no further questions on the matter.

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¶28 The jury convicted Townsend of first-degree intentional homicide and
two counts of attempted first-degree intentional homicide for the shootings.4 He
received a life sentence, with eligibility for release on extended supervision after
forty-five years of initial confinement. He received concurrent sentences for the
other counts.

¶29 Townsend, through postconviction counsel, filed his first
postconviction motion in preparation for his direct appeal. He alleged that his trial
counsel was ineffective in a number of ways, including the failure to present a self-
defense theory to the jury. That motion also included a claim that trial counsel
should have called several witnesses to support his self-defense theory, including
Woods and Antonio. The postconviction court advised postconviction counsel that
this claim would be “summarily denied” if he did not submit affidavits from these
potential witnesses with his motion. No affidavits were provided with the motion.

¶30 The postconviction court5 rejected all of Townsend’s claims on the
grounds that they were insufficiently pled or conclusory. Postconviction counsel
subsequently submitted an affidavit from Antonio, which was reviewed but
ultimately rejected by the postconviction court. This court affirmed the
postconviction court’s rulings. See State v. Townsend, No. 2014AP2395-CR,
unpublished slip op. ¶¶15, 23 (WI App July 28, 2015).

4
Townsend was also convicted of the two counts of being a felon in possession of a
firearm; those convictions are not at issue in this appeal.
5
Townsend’s first postconviction motion for his direct appeal was decided by the
Honorable Jeffrey A. Wagner, as the successor to Judge Sankovitz’s homicide calendar. We refer
to him as the postconviction court.

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¶31 Townsend, with new counsel, subsequently filed the WIS. STAT.
§ 974.06 motion that underlies this appeal. In that motion, he asserted that he is
entitled to a new trial due to a structural error—that he was denied his Sixth
Amendment right to determine his own defense, pursuant to McCoy.6 He also
contended that his initial postconviction counsel was ineffective in the manner in
which he presented Townsend’s claims of ineffective assistance of trial counsel in
his first postconviction motion.

¶32 The circuit court7 rejected Townsend’s motion without a hearing. It
held that the facts in McCoy—a capital case where the death penalty was being
sought—were significantly different from those in this case. Another important
difference cited by the circuit court was that the defendant in McCoy raised the
structural error argument on direct appeal rather than as a collateral attack, as is the
case here. As a result, the circuit court, citing Weaver v. Massachusetts, 137 S. Ct.
1899 (2017), reasoned that even assuming there was a structural error, Townsend
was required—and had failed—to prove he had been prejudiced by the error.

¶33 Additionally, the circuit court found that Townsend was procedurally
barred from bringing his claims of ineffective assistance of trial counsel because
they were brought in his direct appeal. It also reviewed those claims on the merits,
concluding that trial counsel was not constitutionally ineffective, and thus the
arguments in Townsend’s WIS. STAT. § 974.06 motion were not clearly stronger

6
McCoy v. Louisana, 138 S. Ct. 1500 (2018), was decided shortly after Townsend filed
his WIS. STAT. § 974.06 motion. He amended his motion to include the argument based on that
decision.
7
The Honorable Joseph R. Wall presided over Townsend’s WIS. STAT. § 974.06 motion.
We refer to him as the circuit court.

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No. 2019AP787

than the arguments previously brought by postconviction counsel. This appeal
follows.

DISCUSSION

1. Application of McCoy

¶34 We begin with Townsend’s assertion that the holding in McCoy—a
recent decision by the United States Supreme Court—is applicable in this case. The
McCoy court reviewed trial counsel’s actions in a capital case: the defendant was
accused of committing three murders for which the state of Louisiana was seeking
the death penalty. Id., 138 S. Ct. at 1506. The defendant “vociferously insisted” he
had not committed the crimes, even though there was “overwhelming” evidence to
the contrary. Id. at 1505, 1513. Despite the defendant maintaining his innocence
throughout the proceedings, during the guilt phase of the trial, trial counsel told the
jury that the defendant had “committed three murders…. [H]e’s guilty.” Id. at 1505
(ellipses and brackets in McCoy).

¶35 Thus, the issue in McCoy was whether trial counsel can, over the
objection of the defendant, concede that defendant’s guilt. See id. The Supreme
Court held that doing so is a violation of the Sixth Amendment. Id. The Court ruled
that because the Sixth Amendment guarantees the right to present a defense with the
assistance of counsel, a defendant “has the right to insist that counsel refrain from
admitting guilt, even when counsel’s experienced-based view is that confessing
guilt offers the defendant the best chance to avoid the death penalty.” Id. Indeed,
the Court declared:

With individual liberty—and, in capital cases, life—at stake,
it is the defendant’s prerogative, not counsel’s, to decide on
the objective of his defense: to admit guilt in the hope of
gaining mercy at the sentencing stage, or to maintain his

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innocence, leaving it to the State to prove his guilt beyond a
reasonable doubt.

Id.

¶36 Furthermore, because the issue was “a client’s autonomy” and not trial
counsel’s “competence,” the Court stated that the analysis for determining whether
counsel’s performance was ineffective, as set forth in Strickland v. Washington,
466 U.S. 668 (1984), is not applicable under such circumstances. McCoy, 138 S.
Ct. at 1510-11. Rather, the Court deemed this to be a structural error, with the
remedy being a new trial “without any need” for a defendant to first show prejudice.
Id. at 1511.

¶37 Because McCoy was decided after Townsend was convicted, our
analysis generally would begin with a determination of whether the rule imposed by
McCoy may be retroactively applied to Townsend’s case. However, based on the
parameters for the rule as set forth in the decision, we believe that the threshold
question is whether the facts of this case are on point with those in McCoy, so that
we may first ascertain whether the application of the rule would be warranted here.8

¶38 The premise of the McCoy decision is a defendant’s rights under the
Sixth Amendment to make “certain decisions regarding the exercise or waiver of
basic trial rights are of such moment that they cannot be made for the defendant by
a surrogate,” Florida v. Nixon, 543 U.S. 175, 187 (2004). These decisions include
“whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf,

8
The postconviction court found that Townsend’s argument regarding McCoy’s
applicability “fails on the facts,” noting the “extreme facts” of McCoy—that it was a two-phase
capital case where the defendant was facing the death penalty. To the extent that the postconviction
court was suggesting that McCoy is applicable only in capital cases, we disagree. The McCoy court
was clear that its rule applies in all criminal cases, where “individual liberty … [is] at stake[.]” Id.,
138 S. Ct. at 1505.

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No. 2019AP787

and forgo an appeal.” McCoy, 138 S. Ct. at 1508. When such a decision is at issue,
trial counsel “must both consult with the defendant and obtain consent to the
recommended course of action.” Nixon, 543 U.S. at 187.

¶39 Still, the Court has also recognized that there are some situations in
which a defendant declines to participate—or even express an opinion—regarding
defense strategies. For example, Nixon was also a capital case where trial counsel
conceded the defendant’s guilt during the guilt phase of the trial. Id. at 178. The
fact that distinguishes it from McCoy, however, was that when trial counsel in
Nixon tried to discuss this concession strategy with the defendant prior to trial, he
was “generally unresponsive” and “never verbally approved or protested” the
proposed strategy. Nixon, 543 U.S. at 181; see also McCoy, 138 S. Ct. at 1509. In
fact, the defendant in Nixon “complained about the admission of his guilt only after
trial.” McCoy, 138 S. Ct. at 1509. Under those circumstances, the Nixon court held
that trial counsel should not be “impeded by any blanket rule demanding the
defendant’s explicit consent.” Nixon, 543 U.S. at 192. Therefore, the Nixon court
ruled that trial counsel’s actions should be analyzed under the Strickland paradigm.
Nixon, 543 U.S. at 192.

¶40 In discussing Nixon, the McCoy court explained that its rule was “not
to the contrary” of that holding:

If a client declines to participate in his defense, then an
attorney may permissibly guide the defense pursuant to the
strategy [he or] she believes to be in the defendant’s best
interest. Presented with express statements of the client’s
will to maintain innocence, however, counsel may not steer
the ship the other way.

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McCoy, 138 S. Ct. at 1509. Thus, the McCoy rule recognizing the right “to insist
that counsel refrain from admitting guilt” is specific to circumstances in which the
defendant objects to trial counsel making a concession. Id. at 1505.

¶41 For example, in McCoy, the defendant “opposed [trial counsel]’s
assertion of his guilt at every opportunity, before and during trial, both in conference
with his lawyer and in open court.” Id. at 1509. In fact, trial counsel reported that
the defendant was “furious” when he was told two weeks before trial that his counsel
wanted to concede his guilt to the three murders for which he was charged. Id. at
1506. Thus, his counsel knew of the defendant’s “complet[e] oppos[ition]” to a
concession, because he had “pressed [trial counsel] to pursue acquittal.” Id. (first
two sets of brackets in McCoy).

¶42 Here, it is not clear whether Townsend’s exchange with the trial court
after closing arguments constitutes an objection. When the trial court brought up
trial counsel’s “concession” during his closing argument—that counsel had
“suggested” that it would be acceptable to Townsend if the jury returned a verdict
of guilty on one of the reckless homicide charges—the court noted that was trial
counsel’s “choice to make as a professional.” Nevertheless, the court asked
Townsend whether he “agree[d] with that strategy,” to which Townsend replied
“[n]o.”

¶43 Yet, when the trial court then asked what strategy Townsend wanted
to pursue, Townsend did not indicate that self-defense was the only track he was
willing to follow. Instead, he merely stated that he wanted the jury to “[w]eigh in,
to put in their own decision” and that he was “not sure” whether he wanted the jury
to follow any particular path based on the instructions it had been given. Thus, his
“objection” was ambiguous at best.

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¶44 Furthermore, although Townsend’s trial counsel requested—and was
granted—the inclusion of the self-defense jury instructions, he also requested
instructions for applicable lesser-included charges as well. Moreover, during that
discussion the trial court asked Townsend directly if he understood the discussion
and agreed with the request for jury instructions for all those lesser-included crimes;
Townsend replied affirmatively.

¶45 Thus, while it is clear that Townsend wanted to pursue a theory of
self-defense, his statements do not reflect that this was his only defense objective.
Put another way, Townsend never made an “express statement[]” to his trial counsel
that he did not want to pursue any other defense strategy. See id. at 1509. Indeed,
since Townsend had agreed that instructions for lesser-included crimes should be
given to the jury, counsel’s reference in his closing argument to evidence that
supported a verdict of one of those lesser-included crimes does not conflict with
Townsend’s agreement to include the jury instructions for those crimes.

¶46 Instead, these facts are more in line with Nixon, where the defendant
neither approved nor protested against trial counsel’s strategy until after trial. See
id., 543 U.S. at 181; McCoy, 138 S. Ct. at 1509. Under these circumstances, trial
counsel here should not be “impeded by any blanket rule” requiring Townsend’s
“explicit consent.” See Nixon, 543 U.S. at 192. Therefore, we conclude that
Townsend’s trial counsel was not restricted from referencing his alleged use of
Ecstasy prior to the shootings to indicate reckless behavior, as a means of suggesting
that one of the lesser-included crimes was more applicable to these circumstances.

¶47 In other words, the record here does not indicate the type of structural
error described in McCoy. Therefore, we need not reach a determination of whether
McCoy could retroactively be applied, because the facts of this case do not warrant

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No. 2019AP787

the application of its rule here. Furthermore, in the absence of such a structural
error, Townsend’s claim is not entitled to a presumption of prejudice, but rather
should be analyzed within the parameters of Strickland.9

2. Claim of Ineffective Assistance of Postconviction Counsel

¶48 Thus, we turn to Townsend’s claim of ineffective assistance of
postconviction counsel. 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, 466 U.S. at 687. The defendant “must prevail
on both parts of the test to be afforded relief.” State v. Allen, 2004 WI 106, ¶26,
274 Wis. 2d 568, 682 N.W.2d 433. We review de novo “‘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).

9
Townsend also cites United States v. Cronic, 466 U.S. 648 (1984), in support of his
argument that these circumstances warrant a presumption of prejudice. In Cronic, the issue was
whether a twenty-five day preparation period before trial in a mail fraud case was insufficient to
comply with the Sixth Amendment right to effective counsel. Id. at 649-50. The Court recognized
that in cases where trial counsel “entirely fails to subject the prosecution’s case to meaningful
adversarial testing, then there has been a denial of Sixth Amendment rights that makes the
adversary process itself presumptively unreliable.” Id. at 659. However, the Court held that was
not the case in Cronic, and that the defendant’s claims of ineffectiveness required an analysis of
trial counsel’s performance. Id. at 652-53. Incidentally, Cronic was decided by the Court on the
same day as Strickland.

In any event, we find Cronic to be inapposite, as that fact set is in no way comparable to
the instant case.

Additionally, we note that in the instant case, the circuit court held that even if there was a
structural error, Townsend would still have to prove prejudice since the issue is being raised on
collateral review as opposed to his direct appeal, citing Weaver v. Massachusetts, 137 S. Ct. 1899
(2017). However, the Court in Weaver plainly states that its holding was limited to “the context of
trial counsel’s failure to object to the closure of the courtroom during jury selection.” Id. at 1907.
Therefore, we do not discuss Weaver in this decision.

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¶49 Townsend asserts that his postconviction counsel who filed his first
postconviction motion for his direct appeal was ineffective in the manner in which
he “briefed and presented meritorious claims for ineffective assistance of trial
counsel[.]” Townsend argues that postconviction counsel made conclusory and
undeveloped assertions, violated a court order, failed to cite case law, and failed to
allege or argue prejudice, which caused the postconviction court, as well as this
court, to reject his claims. See Townsend, No. 2014AP2395-CR, ¶¶11-12. Thus,
Townsend contends that “[a]t a minimum” the ineffectiveness of his postconviction
counsel “cost [Townsend] an evidentiary hearing” on the ineffective assistance of
trial counsel claims asserted in his first postconviction motion.

¶50 The decision to deny Townsend an evidentiary hearing on the
ineffective assistance claims in his first postconviction motion was based on the
well known standard of review. A claim of ineffective assistance requires that a
postconviction evidentiary hearing be held “to preserve the testimony of trial
counsel,” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979),
but a defendant is not automatically entitled to a Machner hearing, State v. Bentley,
201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996).

¶51 Rather, the postconviction court is required to hold an evidentiary
hearing only if the defendant has alleged “sufficient material facts that, if true,
would entitle the defendant to relief.” Allen, 274 Wis. 2d 568, ¶9. If, on the other
hand, the postconviction motion “does not raise 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,” the postconviction court,
in its discretion, may either grant or deny a hearing. Id.

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No. 2019AP787

¶52 The State contends, and the circuit court agreed, that Townsend’s
ineffective assistance of counsel claims in his WIS. STAT. § 974.06 motion are
barred because they were already litigated in his direct appeal. “A matter once
litigated may not be relitigated in a subsequent postconviction proceeding[.]” State
v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991). However,
the gist of Townsend’s argument is that the claims in his first postconviction motion
were not actually litigated; instead, they were rejected as insufficient and
conclusory, due to the ineffectiveness of his first postconviction counsel. Therefore,
Townsend contends that the procedural bar should not apply here.

¶53 Generally, a defendant who is seeking relief under WIS. STAT.
§ 974.06 following a prior postconviction motion and appeal must establish a
“sufficient reason” for failing to previously raise any issues that could have been
raised in the earlier proceedings; otherwise, the claims are barred. State v.
Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). A claim of
ineffective assistance of postconviction counsel may present a “sufficient reason”
to overcome that procedural bar. See State ex rel. Rothering v. McCaughtry, 205
Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App. 1996). To establish that
postconviction counsel was ineffective, a defendant “must demonstrate that the
claims he [or she] wishes to bring are clearly stronger than the claims postconviction
counsel actually brought.” State v. Romero-Georgana, 2014 WI 83, ¶4, 360 Wis.
2d 522, 849 N.W.2d 668. This is determined by “compar[ing] the arguments now
proposed against the arguments previously made.” See id., ¶46; see also Lee v.
Davis, 328 F.3d 896, 900 (7th Cir. 2003).

¶54 We thus review the facts alleged in Townsend’s WIS. STAT. § 974.06
motion to determine whether these arguments are clearly stronger than those of his
first postconviction motion. Whether a § 974.06 motion has raised sufficient facts

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No. 2019AP787

to entitle a defendant to a Machner hearing is a question of law that we review de
novo. Allen, 274 Wis. 2d 568, ¶9. To be deemed sufficient, the motion “must
include facts that ‘allow the reviewing court to meaningfully assess [the
defendant’s] claim.’” Id., ¶21 (brackets in Allen). A motion will generally meet
this standard if it “allege[s] the five ‘w’s’ and one ‘h’; that is, who, what, where,
when, why, and how.” Id., ¶23.

¶55 In Townsend’s current motion under WIS. STAT. § 974.06, the alleged
facts are sufficiently pled to answer all of these questions. Townsend’s assertions
that postconviction counsel in his first motion “presented cursory allegations, failed
to marshal evidence and legal research, violated a court order, and failed to explain
how [trial counsel]’s deficient performance affected the outcome of the trial” are
supported by the holdings of the postconviction court and this court in his direct
appeal. See Townsend, No. 2014AP2395-CR, ¶¶11-12. He then explains how and
why, based on the underlying premise of his ineffective assistance claim—that his
trial counsel did not present a cogent theory of self-defense—the deficiencies of his
postconviction counsel prejudiced him by failing to provide sufficient facts that
would have entitled him to a Machner hearing. See State v. Balliette, 2011 WI 79,
¶28, 336 Wis. 2d 358, 805 N.W.2d 334 (a § 974.06 motion based on ineffective
assistance of postconviction counsel “must lay out the traditional elements of
deficient performance and prejudice to the defense”).

¶56 In particular, the first postconviction motion alleged a deficiency by
trial counsel in failing to call several witnesses to support his self-defense theory—
most significantly, Rickey Woods and Antonio Stewart. The postconviction court
specifically ordered that postconviction counsel submit affidavits from these
witnesses with the motion, or the claim would be “summarily denied[.]”
Postconviction counsel failed to obtain the affidavits in a timely manner. He did

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No. 2019AP787

subsequently submit an affidavit from Antonio, and requested reconsideration of the
postconviction court’s denial of the first postconviction motion. That request was
denied.

¶57 For his WIS. STAT. § 974.06 motion, Townsend’s new postconviction
counsel obtained and submitted affidavits from Woods and Antonio. This fact is
sufficient to indicate a potential deficiency on the part of Townsend’s first
postconviction counsel. See Strickland, 466 U.S. at 691 (to prove a deficiency, a
defendant must show that counsel’s actions or omissions were “professionally
unreasonable”). We thus review the affidavits for their potential to demonstrate
prejudice.

¶58 In Woods’ affidavit, he avers that he heard Thomas and L.T. talking
about obtaining a gun prior to the shooting to exact revenge on Townsend for the
altercation with Woods. Additionally, in the circuit court’s discussion about this
claim, the circuit court noted that Woods had identified the silver revolver as
belonging to Thomas. Nevertheless, the circuit court determined that Townsend
would have gotten “very minimal mileage” from Woods’ testimony when compared
to the evidence against Townsend. However, this testimony directly supports
Townsend’s theory of self-defense.

¶59 With regard to Antonio’s affidavit, he avers that he saw a gun in
J.W.’s hand during the shooting. Again, this supports Townsend’s theory of self-
defense. However, the affidavit was rejected by both the postconviction court and
the circuit court for failing to demonstrate prejudice.

¶60 In the first postconviction proceeding, the postconviction court
reviewed Antonio’s untimely affidavit in its denial of Townsend’s motion for
reconsideration. The court noted the testimony of L.T. and Simone, who stated that

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No. 2019AP787

they did not see J.W. with a gun, and the testimony of J.W., who said he did not
have a gun. However, Simone also testified that J.W. had lifted his shirt when he
was facing Townsend as if he had a gun in his waistband. In any event, had Antonio
testified at trial to the information contained in his affidavit, his credibility “would
have been a factor for the jury to consider…. The jury would have had to determine
the weight and credibility to assign” to his testimony in conjunction with the other
witnesses’ testimony. See State v. Jenkins, 2014 WI 59, ¶65, 355 Wis. 2d 180, 848
N.W.2d 786 (citation omitted; ellipses in Jenkins).

¶61 The circuit court, in reviewing Townsend’s WIS. STAT. § 974.06
motion, also rejected Antonio’s affidavit, citing a failure to demonstrate deficiency
as well as prejudice. The circuit court characterized Antonio as “a violent hooligan”
whose testimony would only serve to “further incriminate Townsend for these
shootings.” However, it was undisputed that Townsend shot the three victims;
rather, his postconviction claims focus on his self-defense theory: whether trial
counsel was ineffective in its presentation at trial, and whether postconviction
counsel was ineffective in initially presenting this claim in his first postconviction
motion. Thus, Antonio’s affidavit should be reviewed in terms of whether its
averments support Townsend’s theory of self-defense, and thus whether trial
counsel’s failure to call Antonio to testify at trial was potentially prejudicial to
Townsend’s case. These facts, as alleged in the § 974.06 motion, are sufficient to
support this argument.

¶62 With regard to the theory of self-defense, the circuit court pointed
out—and we agree—that it was not completely abandoned during trial. As we
discussed above, the trial court gave the self-defense instruction to the jury, and trial
counsel discussed the evidence surrounding the silver revolver during his closing
argument. However, trial counsel also referenced reckless behavior on Townsend’s

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No. 2019AP787

part for allegedly taking Ecstasy prior to the shooting, even though the evidence was
conflicting as to whether Townsend took the pills that night. Townsend’s WIS.
STAT. § 974.06 motion asserts that this concession compounded the prejudicial
affect of trial counsel’s other errors. When there are “numerous deficiencies” in
trial counsel’s performance, a court “need not rely on the prejudicial effect of a
single deficiency if, taken together, the deficiencies establish cumulative prejudice.”
State v. Thiel, 2003 WI 111, ¶59, 264 Wis. 2d 571, 665 N.W.2d 305.

¶63 After reviewing Townsend’s WIS. STAT. § 974.06 motion, his first
postconviction motion, and the record, we conclude that Townsend’s current motion
has sufficiently alleged facts that demonstrate that his claim of ineffective assistance
of postconviction counsel is clearly stronger than the claims that were presented in
his first postconviction motion. Therefore, his claims are not procedurally barred.
See Romero-Georgana, 360 Wis. 2d 522, ¶4. Furthermore, because these
allegations, if true, support his assertions that trial counsel committed prejudicial
errors in failing to present a thorough case for self-defense, Townsend is entitled to
a Machner hearing. See Allen, 274 Wis. 2d 568, ¶9.

¶64 This conclusion also applies to Townsend’s request for postconviction
discovery of L.T.’s medical records relating to the shooting. Townsend presents
this request in conjunction with his overarching claim that trial counsel failed to
present a thorough case for self-defense. Specifically, Townsend contends that
L.T.’s medical records would demonstrate that she was not shot in the back—as she
testified, and as the State argued in its closing—but rather in the chest. Townsend
argues that showing that L.T. was facing him when she was shot is more consistent
with his self-defense theory.

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No. 2019AP787

¶65 This argument was not included in Townsend’s first postconviction
motion. Thus, our conclusion that Townsend’s WIS. STAT. § 974.06 motion has
presented arguments that are clearly stronger than those presented by postconviction
counsel in his first postconviction motion is extended to this claim as well. See
Romero-Georgana, 360 Wis. 2d 522, ¶4. Accordingly, Townsend’s Machner
hearing should also include evidence regarding this claim to determine whether
postconviction discovery is warranted. See State v. O’Brien, 223 Wis. 2d 303, 320,
588 N.W.2d 8 (1999) (a defendant has the right “to utilize post[]conviction
discovery when the evaluation is of evidence that is ‘critical, relevant, and
material’” to the presentation of a “complete defense”) (citation omitted)).

¶66 Therefore, we reverse and remand this matter for further proceedings
consistent with this decision. To be clear, this court is neither finding that trial
counsel’s performance was deficient nor that Townsend suffered any prejudice. We
are merely finding that Townsend alleged sufficient facts to entitle him to a
Machner hearing.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

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