State v. Stanley J. Maday, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 28, 2021
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. 2019AP1447 Cir. Ct. No. 2011CF442

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STANLEY J. MADAY, JR.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Columbia County:
W. ANDREW VOIGT, Judge. Affirmed.

Before Fitzpatrick, P.J., Kloppenburg, and Graham, 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. 2019AP1447

¶1 PER CURIAM. Stanley Maday appeals an order denying the
postconviction motion that he brought under WIS. STAT. § 974.06 (2017-18).1 The
majority of the claims Maday raises are procedurally barred because they are not
“clearly stronger” than the claims he raised in his initial postconviction motion and
direct appeal. See State v. Romero-Georgana, 2014 WI 83, ¶4, ¶¶45-46, 360 Wis.
2d 522, 849 N.W.2d 668. The remaining claims lack merit. Therefore, we affirm.

BACKGROUND

¶2 Maday was convicted of three counts of first-degree sexual assault of
a child in 2013. With the assistance of postconviction counsel, he filed a
postconviction motion and direct appeal under WIS. STAT. RULE 809.30. Maday
raised three claims in his motion and appeal: (1) that a social worker improperly
vouched for the victim’s credibility in violation of State v. Hazeltine, 120 Wis. 2d
92, 352 N.W.2d 673 (1984) when she testified about her interview with the victim;
(2) that the circuit court improperly admitted irrelevant and prejudicial evidence
regarding Maday’s training in weapons and use of force; and (3) that Maday’s trial
counsel had been ineffective for failing to adequately object to the aforementioned
evidence. We reversed Maday’s conviction because we concluded that his trial
counsel was ineffective for failing to object to the social worker’s testimony, but
our supreme court reversed our decision and affirmed the conviction. State v.
Maday, 2017 WI 28, 374 Wis. 2d 164, 892 N.W.2d 611.

¶3 Between May 2018 and June 2019, Maday filed a postconviction
motion and a series of amended or supplemental motions and related letters,
affidavits, and briefs. In these documents, which the circuit court appeared to

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

2
No. 2019AP1447

construe as a single motion for postconviction relief, Maday identifies a litany of
claims and argues that they are grounds to reverse his conviction. These claims
include, but are not limited to, claims that his trial counsel was ineffective because
he had a conflict of interest, he did not call Maday’s ex-wife as a witness, he failed
to obtain evidence including cell phone records and medical records, he did not call
expert witnesses on various subjects, he did not adequately prepare Maday for trial,
he failed to move for a directed verdict based on the insufficiency of the evidence,
and he failed to object to or impeach the social worker’s testimony. Maday argues
that his postconviction counsel was ineffective for failing to raise or adequately
address these issues in his initial postconviction motion and direct appeal.

¶4 The circuit court denied the motion without an evidentiary hearing. It
determined that some of the issues Maday raised had already been decided by the
Wisconsin Supreme Court and the remaining issues “lack[ed] significant merit.”

DISCUSSION

¶5 We begin with a discussion of the legal standards applicable to
motions like this, in which the defendant, who has already filed a direct appeal,
contends that postconviction counsel was ineffective for failing to include certain
claims in a prior motion or appeal. We then apply those standards to the claims
Maday raised in his current motion. Finally, we address other claims raised in
Maday’s postconviction motion that are not related to alleged ineffective assistance
of counsel and are governed by a different framework.

I. Pertinent Legal Standards

¶6 Maday’s motion is considered a successive motion under WIS. STAT.
§ 974.06(4), and, therefore, he is required to show a “sufficient reason” that he did

3
No. 2019AP1447

not raise these claims in his initial postconviction motion and direct appeal. See
State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-84, 517 N.W.2d 157 (1994);
§ 974.06(4). Maday argues that his postconviction counsel was ineffective for
failing to include these issues in his initial motion. See Romero-Georgana, 360
Wis. 2d 522, ¶36 (ineffective assistance of postconviction counsel may constitute a
“sufficient reason” under § 974.06(4)). The State cites Romero-Georgana for the
proposition that Maday is also required to demonstrate that his current claims are
“clearly stronger” than his earlier claims on direct appeal. See id., ¶4, ¶¶45-46.
Maday appears to agree that this is the proper test.

¶7 The State asserts that Maday’s brief does not include “any discussion”
of why his current claims are clearly stronger, and that he “does not even attempt to
carry this burden.” The State further asserts that Maday “does not compare the
strength” of his claims, and “does not explain why they are ‘clearly stronger’” than
his earlier claim.

¶8 The State’s assertions about Maday’s brief are not entirely accurate.
Maday’s brief does contain a passage that discusses the “clearly stronger” standard
and attempts to apply it to the issues that he raises in his current motion. Among
other things, Maday quotes the language from Romero-Georgana that the State
relies on, and he explains: “One problem with the reasoning in the cited case,
regarding comparative strengths of claims, is that there is no hard and fast way of
determining the strength of a claim. Where does a defendant find the scales of
justice necessary to balance the comparative strength of claims?” Maday asserts
that his claims that relate to “actual innocence” are clearly stronger, and that other
claims are “just as strong” as the earlier ones.

4
No. 2019AP1447

¶9 Maday asks a fair question about how he should compare the strength
of his current claims with his prior claims. Legal issues are not the equivalent of
poker hands, in which a three of a kind always beats any pair. It is not apparent
what a defendant could say or do to show that his current claims are clearly stronger,
other than to argue the merits of the current claims (which Maday does at great
length) and assert that they are clearly stronger than the issues his attorney
previously raised (which Maday also does, as to at least some claims).

¶10 The State does not attempt to provide any clarity on this point. Apart
from its inaccurate assertion that Maday does not discuss or explain why his current
claims are clearly stronger, the State does not specify what such a discussion or
explanation should contain. The State notes that Maday’s earlier claim on direct
appeal was held to have merit by this court and by two justices of our supreme court.
To the extent the State is suggesting that a litigant or this court should apply a
measurement method based on attempting to predict the total number of judges who
might find merit in the current claims, that suggestion exposes the lack of genuinely
meaningful guidance the State is able to offer.

¶11 For these reasons, we decline to affirm based on the State’s assertion
that Maday’s brief did not attempt to satisfy the “clearly stronger” test. He made
more of an effort than the State acknowledges, and expressed reasonable
puzzlement that the State did not attempt to clarify.2

2
In his reply brief, Maday focuses on the following language from Romero-Georgana:
“[I]n evaluating the comparative strength of the claims, reviewing courts should consider any
objectives or preferences that the defendant conveyed to his attorney. A claim’s strength may be
bolstered if a defendant directed his attorney to pursue it.” State v. Romero-Georgana, 2014 WI
83, ¶4, 360 Wis. 2d 522, 849 N.W.2d 668. Maday asserts that he did so here.

5
No. 2019AP1447

¶12 In published cases applying the “clearly stronger” test, our supreme
court appears to have concluded that the defendant’s current claims were not clearly
stronger by reviewing the merits of the current claims. See, e.g., State v. Starks,
2013 WI 69, ¶¶66-73, 349 Wis. 2d 274, 833 N.W.2d 146; Romero-Georgana, 360
Wis. 2d 522, ¶¶58-64. Interestingly, it appears that we may be required to review
the merits of Maday’s claims to decide whether we are barred from reviewing the
merits of the claims, and under these circumstances, the State’s assertion that it need
not address the merits of Maday’s claims is neither entirely accurate nor helpful to
this court.

II. Maday’s Claims That his Trial Counsel was Ineffective

¶13 Having reviewed Maday’s claims, we are satisfied that none of the
claims he is currently raising under WIS. STAT. § 974.06 are clearly stronger than
the claims he raised previously in his initial postconviction motion and appeal.
Although we will not attempt to discuss each of his claims in detail here, we discuss
most of them enough to explain their evident lack of strength.

¶14 To establish ineffective assistance of counsel, Maday must show that
counsel’s performance was deficient and that such performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the court
denied Maday’s postconviction motion without an evidentiary hearing, we consider
whether his motion alleged facts which, if true, would entitle him to relief. State v.

It is not clear how the strength of the merits of a claim would vary based on whether the
defendant expressed a desire to pursue it. Even if we accept that a defendant’s past expression of
interest somehow adds strength to his current claims and credit Maday’s assertion that he made
such an expression in his earlier postconviction proceeding, the case law that Maday relies on does
not suggest that the “clearly stronger” requirement can be satisfied solely by his having told earlier
postconviction counsel that he wanted to pursue the claims. We understand the test to still require
us to make some comparison of the strength of the claims, regardless of what the defendant may
have said earlier.

6
No. 2019AP1447

Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). This is a question of law
we review without deference to the circuit court. Id.

¶15 Maday argues that his trial counsel had a conflict of interest because
counsel himself had been a victim of child sexual assault. As we understand the
argument, Maday appears to be suggesting that this was a conflict of interest
because it could have made his attorney sympathetic to the victim in this case, and
thus less zealous in his representation. Maday acknowledges case law stating that
the defendant must show that the alleged conflict adversely affected counsel’s
performance. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). To show
this, Maday relies on several acts by his attorney that Maday contends were contrary
to his interest. However, Maday does not point to any specific reason to believe
that there was a causal connection between those acts and counsel’s personal
history. Accordingly, he does not adequately allege a conflict of interest.

¶16 Maday argues that his counsel was ineffective by failing to call
Maday’s ex-wife to testify that he was impotent. Maday contends such evidence
would be relevant to showing that he was unable to perform the acts he was charged
with “for the purpose of” sexual arousal or gratification. See WIS. STAT.
§ 939.22(34) (defining “sexual contact”). This is not a strong argument for several
reasons. One reason is that obtaining an erection is not necessarily the only measure
of sexual arousal. Another is that the charged crime must be done for the purpose
of sexual humiliation, degradation, arousal, or gratification. Id. It is not a
requirement that arousal or gratification actually be achieved in some demonstrable
way.

¶17 Maday argues that his counsel was ineffective by failing to obtain
several forms of evidence that Maday asked him to obtain, such as medical records

7
No. 2019AP1447

and cell phone records. He argues that the medical records would have shown that
he suffered from erectile dysfunction, but for the reasons explained above, it does
not appear that these records would have been relevant to his defense. He also
asserts that the cell phone records would have shown that the victim initiated contact
with him, and that such behavior is inconsistent with the behavior of a victim of
sexual assault. We are not persuaded by Maday’s conclusory assertion that the
phone record evidence he described would have been relevant to or effective in his
defense.

¶18 Maday argues that his trial counsel was ineffective by failing to call
expert witnesses on various subjects. However, Maday has not provided evidence
of what any such expert would say. Maday is entitled to relief only if he was
prejudiced by counsel’s performance, and he was prejudiced by counsel’s
performance only if there was available expert testimony that would have helped
his case. Without specific allegations about what the expert testimony would be,
Maday has not sufficiently alleged facts which, if true, would entitle him to relief.

¶19 Maday argues that his trial counsel failed to prepare him for trial, but
he does not explain how such preparation would have changed his testimony or the
outcome at trial.

¶20 Maday argues that his trial counsel was ineffective for failing to move
for a directed verdict. He implies that the circuit court would have granted the
motion because there was no DNA or medical evidence, and the case came down to
a “credibility contest” between Maday and his accuser. Maday cannot show that he
was prejudiced because the motion he contends his counsel should have filed would
have had little chance of success. Maday cites no authority for the proposition that
physical evidence was needed to support his conviction, and courts have repeatedly

8
No. 2019AP1447

held that testimony alone may be sufficient to support a conviction. See, e.g., State
v. Long, 2009 WI 36, ¶25, 317 Wis. 2d 92, 765 N.W.2d 557.

¶21 Finally, Maday argues that it was error to admit the social worker’s
testimony because it had no probative value, and that his trial counsel was
ineffective for failing to object to its admission or impeach the testimony. This
appears to be an attempt to relitigate the expert testimony that was discussed by the
court in his direct appeal. Maday, 374 Wis. 2d 164, ¶¶37-56. Such an attempt is
barred by State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App.
1991).

III. Maday’s Additional Claims

¶22 Maday also advances three additional arguments that, as the State
recognizes, are not based on alleged ineffective assistance of counsel of trial and
postconviction counsel and are not subject to the “clearly stronger” test. We address
these arguments in turn and conclude that they each fail.

¶23 First, Maday argues that he should receive a new trial based on newly
discovered evidence. The evidence in question is a science magazine article
describing studies of memory and trauma. According to Maday, the studies suggest
that trauma survivors remember their experience in great detail. He asserts that
these studies could have provided a basis to undercut the victim’s credibility by
arguing that she should have remembered the events better if they had actually
occurred. This argument fails because, among other things, Maday did not develop
it in the postconviction motion materials he filed in the circuit court. We do not
address issues that are raised for the first time on appeal. See State v. Brereton,
2013 WI 17, ¶19, 345 Wis. 2d 563, 826 N.W.2d 369.

9
No. 2019AP1447

¶24 Second, Maday argues that the supreme court’s opinion in his direct
appeal changed the law relating to testimony by expert witnesses in a way
unfavorable to him, and therefore his conviction should be reversed as an ex post
facto violation. However, Maday provides no citation to authority holding that a
change in evidence law, as opposed to substantive law, has been held to be an ex
post facto violation. In his attempt to squeeze a change in evidence law into the ex
post facto context, Maday refers to the change as a removal of a “defense” available
to him. However, he does not explain how law relating to admission of expert
testimony creates or removes any substantive defense to a charge. We reject this
argument as insufficiently developed. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992).

¶25 Finally, Maday makes a series of arguments that the circuit court
erroneously exercised its discretion in denying his postconviction motions. We
have reviewed those issues, and conclude that none of them have merit.

By the Court.—Order affirmed.

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

10