State v. Steven A. Avery

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.
July 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. 2017AP2288-CR Cir. Ct. No. 2005CF381

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STEVEN A. AVERY,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Manitowoc County:
ANGELA W. SUTKIEWICZ, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2017AP2288-CR

¶1 PER CURIAM. In 2007, following a jury trial, Steven A. Avery
was convicted of first-degree intentional homicide, party to the crime, and
possession of a firearm by a felon. We affirmed his convictions on appeal. The
issues in this new case concern collateral proceedings: whether the circuit court
erred in denying Avery’s WIS. STAT. § 974.06 (2019-20)1 motion and two
supplemental motions without a hearing, as well as his motions to vacate and for
reconsideration of the first of these motions. We hold that Avery’s § 974.06
motions are insufficient on their face to entitle him to a hearing and that the circuit
court did not erroneously exercise its discretion in denying the motions to vacate
and for reconsideration. Accordingly, we affirm.

OVERVIEW

¶2 We previously summarized the facts of this case in our decision on
Avery’s direct appeal, see State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804
N.W.2d 216, and we will discuss below those facts relevant to his collateral attack
on his conviction. But for context, this case began in early November 2005 with
the disappearance of Teresa Halbach, a twenty-five-year-old professional
photographer. Volunteer searchers found Halbach’s RAV4 on the forty-acre site
of Avery’s Auto Salvage, a salvage yard business where Avery and other family
members lived and worked. It was believed that Halbach had photographed
vehicles at this site several days earlier, per Avery’s request. According to State
witness Bobby Dassey, Halbach was last seen walking towards Avery’s trailer.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2017AP2288-CR

¶3 After finding the RAV4, police searched the Avery property and,
over the course of the next four months, discovered and identified evidence
including: burned bone fragments in and around a burn pit, with DNA matching
Halbach’s; both Avery’s and Halbach’s blood in the RAV4; the remnants of
electronic devices and a camera, the same models as Halbach’s, in a burn barrel;
Halbach’s RAV4 key in Avery’s bedroom, with Avery’s DNA on it; Avery’s
DNA on the hood latch of the RAV4 (deposited, the State later claimed, by
Avery’s sweaty hands); and a bullet and bullet fragments in Avery’s garage,
containing Halbach’s DNA.

¶4 The case was tried over a five week period in February and March of
2007. The State’s theory was that Avery shot Halbach in the head, in his garage,
and threw her in the cargo area of the RAV4. He then burned the electronics and
camera, cremated Halbach in a burn pit, transferred the remains to a burn barrel,
and hid the RAV4 until he could crush it in the Avery car crusher. The defense
argued that law enforcement was biased against Avery, who was pursuing a
wrongful conviction lawsuit against Manitowoc County and the Sheriff’s
Department,2 and, as a result, planted evidence implicating Avery. The real killer,
the defense argued, took advantage of this “investigative bias” to also plant
evidence on the Avery property, once early media publicity made it clear that
Avery was a key suspect.

¶5 The jury found Avery guilty of first-degree intentional homicide and
felon in possession of a firearm. Avery received a life sentence without the

2
Avery was wrongfully convicted of a 1985 sexual assault and was exonerated in 2003
on the basis of DNA evidence linking the crime to another person.

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No. 2017AP2288-CR

possibility of extended supervision. In 2009, Avery commenced his direct appeal
by filing a motion for postconviction relief, pursuant to WIS. STAT. § 974.02,
requesting a new trial. That motion was denied, Avery appealed, and this court
affirmed in the aforementioned decision. See Avery, 337 Wis. 2d 351, ¶3.

¶6 In 2013, Avery filed a pro se WIS. STAT. § 974.06 motion (the 2013
motion), requesting a new trial. That motion was denied, and Avery appealed.
That appeal was stayed and later dismissed on Avery’s motion, shortly after he
initiated the postconviction proceedings that are the subject of this appeal. In
2017, Avery filed the first of the six motions that are the subject of this appeal.3
These motions will be analyzed individually, with further discussion of relevant
law, but some basic principles apply generally.

¶7 WISCONSIN STAT. § 974.06 provides a mechanism for vacating,
setting aside, or correcting a sentence once the time for direct appeal has passed,
on constitutional or jurisdictional grounds or where “the sentence was in excess of
the maximum authorized by law or is otherwise subject to collateral attack.”
Sec. 974.06(1); State v. Romero-Georgana, 2014 WI 83, ¶32, 360 Wis. 2d 522,
849 N.W.2d 668. Section 974.06(4),4 however, creates a procedural barrier to

3
Avery’s appeal is from two orders: the circuit court’s October 3, 2017 order denying
his June 2017 postconviction motion and the court’s November 28, 2017 order denying his
motions to vacate and for reconsideration of the June 2017 motion. We address these as Motions
#1 through #3. After filing his appeal, Avery moved to supplement the appellate record, and to
stay the appeal and remand, in two separate motions. We retained jurisdiction and directed Avery
to raise his claims to the circuit court in the form of supplemental postconviction motions. We
address these as Motions #4 and #5. In April 2021, Avery filed a motion to this court to stay his
appeal and remand. We have not yet acted on that motion, so we address and decide it as Motion
#6.
4
In full, WIS. STAT. § 974.06(4) states:

(continued)

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No. 2017AP2288-CR

review, in that it requires the defendant to raise all grounds for relief in his or her
first (postconviction or appellate) motion. State v. Balliette, 2011 WI 79, ¶¶35-36,
336 Wis. 2d 358, 805 N.W.2d 334. Thus, a defendant is normally barred from
raising issues in a § 974.06 motion that were or could have been raised on direct
appeal or in a previous § 974.06 motion. State v. Escalona-Naranjo, 185 Wis. 2d
168, 181-82, 517 N.W.2d 157 (1994). An exception to this rule exists where the
defendant can show a “sufficient reason” for not raising the issue in any prior
postconviction proceeding. Id.; § 974.06; Romero-Georgana, 360 Wis. 2d 522,
¶¶48-50.

¶8 Where, as here, a defendant appeals the circuit court’s denial of a
WIS. STAT. § 974.06 motion without an evidentiary hearing, then the question
before us is narrow: whether remand for a hearing is warranted because the circuit
court erred in denying the motion on its face. See Balliette, 336 Wis. 2d 358, ¶38.
Pursuant to § 974.06(3)(c), the court shall “[g]rant a prompt hearing” unless “the
motion and the files and records of the action conclusively show that the
[defendant] is entitled to no relief.” Our supreme court has also determined,
however, that a baseline level of specificity applies to all postconviction motions,
including those under § 974.06. See Balliette, 336 Wis. 2d 358, ¶¶42-43, 58-59.
Thus, in order for the reviewing court to meaningfully assess the claim, the

All grounds for relief available to a person under this section
must be raised in [the defendant’s] original, supplemental or
amended motion. Any ground finally adjudicated or not so
raised, or knowingly, voluntarily and intelligently waived in the
proceeding that resulted in the conviction or sentence or in any
other proceeding the person has taken to secure relief may not be
the basis for a subsequent motion, unless the court finds a ground
for relief asserted which for sufficient reason was not asserted or
was inadequately raised in the original, supplemental or
amended motion.

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No. 2017AP2288-CR

defendant must allege “sufficient material facts—e.g., who, what, where, when,
why, and how—that, if true, would entitle [the defendant] to the relief he [or she]
seeks.” State v. (John) Allen, 2004 WI 106, ¶¶2, 23, 274 Wis. 2d 568, 682
N.W.2d 433; Romero-Georgana, 360 Wis. 2d 522, ¶37. This requirement
promotes finality once the defendant has been convicted and sentenced,
“minimize[s] time-consuming postconviction hearings unless there is a clearly
articulated justification for them,” and recognizes that “the pleading and proof
burdens … have shifted to the defendant in most situations after conviction.”
Balliette, 336 Wis. 2d 358, ¶¶53, 58. Accordingly, in the context of a § 974.06
motion, the defendant must describe, with specificity, his or her “sufficient
reason” for failing to raise the claim in any earlier proceeding—that is, the
defendant must show why his or her claim is not procedurally barred under §
974.06(4).5 See Romero-Georgana, 360 Wis. 2d 522, ¶37.

¶9 We will further discuss some of the contours of this “sufficient
reason” exception below, but one point bears mentioning here: ineffective
assistance of postconviction counsel can be, and often is, cited as the reason for
the defendant’s not bringing some claim on direct appeal. The specificity
requirement, however, applies just as much in this context. The defendant cannot
merely present legal conclusions, summarily arguing that postconviction counsel
was ineffective for failing to bring the claims he or she now views as meritorious.
Id., ¶¶36, 42. Instead, to be entitled to a hearing, the defendant must raise
sufficient material facts demonstrating prior counsel’s ineffectiveness—that is,

5
Of course, a defendant is not required to do so when there has been no prior
postconviction proceeding. See State v. Romero-Georgana, 2014 WI 83, ¶35, 360 Wis. 2d 522,
849 N.W.2d 668

6
No. 2017AP2288-CR

that counsel was constitutionally deficient and that such performance was
prejudicial to the defendant. Id., ¶¶37-39, 56; see Strickland v. Washington, 466
U.S. 668, 687 (1984). Importantly, to show deficiency in this context, the
defendant must allege sufficient facts showing that his or her new claim is “clearly
stronger” than the claims postconviction counsel in fact brought. Romero-
Georgana, 360 Wis. 2d 522, ¶¶45-46.

¶10 Whether the circuit court erred in not ordering a hearing involves
two potential inquiries, with separate standards of review. The circuit court must
hold a hearing where the motion is sufficient on its face, unless the record as a
whole otherwise conclusively demonstrates that the defendant is not entitled to
relief. Balliette, 336 Wis. 2d 358, ¶¶18, 50; State v. Howell, 2007 WI 75, ¶¶75-77
& n.51, 301 Wis. 2d 350, 734 N.W.2d 48. Whether a WIS. STAT. § 974.06 motion
meets this standard—including whether there is a “sufficient reason” for
overcoming the procedural bar of Escalona-Naranjo—is a question of law that we
review de novo. Romero-Georgana, 360 Wis. 2d 522, ¶30. If, on the other hand,
the motion does not raise sufficient facts, “or presents only conclusory allegations,
or if the record conclusively demonstrates that the defendant is not entitled to
relief,” then the circuit court has the discretion to grant or deny a hearing.
Balliette, 336 Wis. 2d 358, ¶18 (quoting John Allen, 274 Wis. 2d 568, ¶9). In
such case, we review for an erroneous exercise of discretion. Romero-Georgana,
360 Wis. 2d 522, ¶30.

MOTION #1: JUNE 2017 MOTION

¶11 In August 2016, Avery, now represented by counsel, brought a
motion for postconviction scientific testing. In November 2016, the circuit court
granted the motion, permitting Avery to conduct independent testing of nine trial

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No. 2017AP2288-CR

exhibits: seven samples of bloodstain cuttings, swabs, or blood flakes taken from
Halbach’s RAV4; Halbach’s RAV4 key; and a 1996 sample of Avery’s blood.

¶12 Based largely on the results of this testing and other investigations,
Avery filed a WIS. STAT. § 974.06 motion in June 2017 (the June 2017 motion),
requesting a new trial. His motion raises a number of claims6 falling into three
categories for purposes of overcoming the Escalona-Naranjo procedural bar.
First, Avery alleges that trial counsel was ineffective for failing to fully
investigate, or present expert testimony in support of, his theory that he was
framed. Second, he brings several claims based on alleged Brady7 violations.
Third, he raises claims based on the results of new investigations of a bullet, the
hood latch swab of the RAV4, and the RAV4 key, all of which he characterizes as
newly discovered evidence.

¶13 The circuit court found that most of these claims were procedurally
barred under Escalona-Naranjo because Avery had not alleged a “sufficient
reason” for not raising them in his 2013 motion or on direct appeal. See
Escalona-Naranjo, 185 Wis. 2d at 181-82. The court further held that the claims
based on “new scientific tests,” when considered in the context of the full record,
did not allege sufficient facts that, if true, would entitle Avery to relief. See
Romero-Georgana, 360 Wis. 2d 522, ¶37. The court noted that the new reports on

6
Avery reframes some of these claims and arguments on appeal, but our review is of the
sufficiency of the underlying motion. We analyze that motion on its face, deeming new or newly
argued issues forfeited. See State v. Huebner, 2000 WI 59, ¶¶10-12 & n.2, 235 Wis. 2d 486, 611
N.W.2d 727. In addition, some of Avery’s claims, such as his allegations of prosecutorial
misconduct, are not renewed on appeal; these we deem abandoned and will not discuss. See A.O.
Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998). These
principles apply to our analyses of Avery’s subsequent motions.
7
Brady v. Maryland, 373 U.S. 83 (1963).

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No. 2017AP2288-CR

the bullet, hood latch swab, and key were “equivocal in their conclusions” and
“ambiguous”; therefore, given “the totality of evidence submitted at trial … it
cannot be said that a reasonable probability exists that a different result would be
reached at a new trial based on these reports.” Accordingly, the court denied
Avery’s motion without a hearing.

¶14 We review the sufficiency of this motion de novo; if we determine
that Avery was not entitled to a hearing as a matter of law, we then review the
circuit court’s decision to deny him a hearing for an erroneous exercise of
discretion. See id., ¶30. The first, threshold step in this analysis is determining
whether Avery has stated a sufficient reason for not raising these claims in his
2013 motion and on direct appeal.

Ineffective Assistance of Trial Counsel

¶15 Avery’s claims relating to ineffective assistance of trial counsel are
not—and cannot—be based on new or newly disclosed evidence unavailable to
trial counsel. By definition, these claims are based on alleged errors of trial
counsel, the argument being that Avery was thereby denied his constitutional right
to counsel. As with any WIS. STAT. § 974.06 claim, Avery must show that there
was a “sufficient reason” that these claims were not raised on direct appeal and in
his 2013 pro se motion. See Escalona-Naranjo, 185 Wis. 2d at 181-82. And to
establish a “sufficient reason” for not raising ineffective assistance of trial counsel
claims on direct appeal, Avery must show that his new claims are “clearly
stronger” than the claims postconviction counsel actually brought. See Romero-
Georgana, 360 Wis. 2d 522, ¶¶45-46.

¶16 We begin by considering whether Avery has shown a sufficient
reason for not having raised these claims in his 2013 pro se petition. We then turn

9
No. 2017AP2288-CR

to whether Avery has shown a sufficient reason for not raising these claims on
direct appeal. It is at this point that the Escalona-Naranjo analysis dovetails with
the merits of Avery’s ineffective assistance of trial counsel claims, because if his
new claims are facially insufficient as a matter of law, then postconviction counsel
cannot have been ineffective for failing to raise them on direct appeal. Therefore,
after we analyze the potential procedural bar of the 2013 petition, we turn directly
to whether Avery’s remaining claims demonstrate a reasonable probability that,
but for trial counsel’s unprofessional errors, he would not have been convicted at
trial. See Strickland, 466 U.S. at 694.

Sufficient reason for failure to raise the claims in the 2013 motion

¶17 As a starting point, although Avery may argue ineffective assistance
of postconviction counsel as a sufficient reason for not raising these claims on
direct appeal, that argument is not available to excuse failings in his 2013 motion.
That is because Avery did not have a constitutional right to counsel following his
direct appeal. As our supreme court recently observed, there is no constitutional
right to counsel on a collateral attack and, consequently, the “vast majority” of
WIS. STAT. § 974.06 motions are filed by pro se litigants. See State ex rel. Wren
v. Richardson, 2019 WI 110, ¶27 & n.21, 389 Wis. 2d 516, 936 N.W.2d 587. The
exception would swallow the rule if the mere assertion of pro se status were
sufficient to overcome the procedural barrier of Escalona-Naranjo. This legal
point precludes successive postconviction motions from turning into something
akin to Russian nesting dolls, wherein a litigant can simply allege a continuous
series of ineffective assistance of counsel claims to justify previous failures to
raise an issue. Instead, where there are successive § 974.06 motions, any new
motion must be based on something other than ineffective assistance of
postconviction counsel.

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No. 2017AP2288-CR

¶18 Avery appears to recognize this point, foregoing any claim based on
the mere fact that he was without counsel. Nonetheless, his June 2017 motion
largely focuses on the quality of his self-representation, providing the following
justification for not raising any of his current claims in his pro se 2013 motion:

[N]umerous unique circumstances are present here that
provide sufficient reasons the current claims were not
previously presented. Mr. Avery had no way of knowing
the factual and legal basis [for] the claims set forth herein.
As a learning disabled, indigent prisoner, Mr. Avery simply
could not have known them. His attempt to file a
meritorious pleading was thwarted by his lack of legal
knowledge.

The current motion is the product of over a thousand hours
of attorney time, hundreds of hours expended by private
investigators, numerous consultations with experts, the
expenditure of funds to retain those experts, and more. To
expect an indigent prisoner acting pro se to compile a
meritorious motion under these circumstances would be
unreasonable. Mr. Avery’s lack of legal knowledge,
cognitive deficiencies and the complexity of this unique
case provide the sufficient reason that the current claims
should be addressed on the merits.

Thus, we construe Avery to offer six (somewhat overlapping) explanations that,
taken together, might provide a sufficient reason for not raising his claims in 2013:
(1) he was unaware of the legal basis for the claims, (2) he was unaware of the
factual basis for the claims, (3) he was acting pro se, (4) he was indigent, (5) he
has a learning disability, and (6) this case is particularly complex.

¶19 These explanations do not justify Avery’s failure to bring the
majority of his claims. Again, the quality of Avery’s representation in his prior
motion cannot in and of itself constitute a sufficient reason for not raising an issue
earlier. Accordingly, we reject Avery’s first argument that he “lacked awareness
of the legal basis for a claim.” “Lack of awareness of the legal basis for a claim”
is a term of art that does not merely mean that Avery was not a lawyer or lacked

11
No. 2017AP2288-CR

legal knowledge. Rather, it means that he could not previously have anticipated a
change in the substantive law that opened up a new basis for collateral attack. See
State v. (Aaron) Allen, 2010 WI 89, ¶44, 328 Wis. 2d 1, 786 N.W.2d 124; State v.
Howard, 211 Wis. 2d 269, 287-88, 564 N.W.2d 753 (1997), overruled on other
grounds by State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 633 N.W.2d 765.
Here, Avery’s claims are based on well-settled law. See, e.g., Romero-Georgana,
360 Wis. 2d 522, ¶¶39-41.

¶20 As to reasons (2) through (6), Avery gives us bare-bones factual
conclusions but does not meaningfully explain why the circumstances he describes
precluded him from raising most of these issues earlier. See John Allen, 274
Wis. 2d 568, ¶¶12, 23. Regarding reason (2), unawareness of the factual basis of
the claims, Avery does not explain, and we cannot envision, why he did not have
all the facts necessary in 2013 to raise these claims (which, after all, are premised
on the further investigation of evidence and witnesses known to Avery at the time
of trial). See State v. Tolefree, 209 Wis. 2d 421, 426, 563 N.W.2d 175 (Ct. App.
1997). As to reason (3), as explained above, a defendant’s pro se status, standing
alone, cannot excuse his or her failure to raise claims in a WIS. STAT. § 974.06
motion.

¶21 With one exception—discussed below—Avery’s remaining reasons
are similarly deficient. Avery simply claims that he has a learning disability and
was indigent in 2013, and that his case is complex. He does not cite any law, or
develop any detailed argument, as to why these facts, alone or taken together,
explain his failure to raise these claims. It appears well established from federal
habeas law, from which we can borrow, that reasons such as these are not the sort
of grounds on which a procedural bar can be avoided. See Harris v. McAdory,
334 F.3d 665, 668-69 (7th Cir. 2003) (petitioner’s pro se status, borderline mental

12
No. 2017AP2288-CR

retardation, and organic brain dysfunction did not provide sufficient cause to
excuse procedural default of ineffective assistance claim; cause must be based on
an “external impediment”).

¶22 The one exception we will recognize concerns Avery’s contention
that, on his own, it would have been impossible for him to have undertaken the
extensive investigations later carried out by current postconviction counsel, which
resulted in new theories as to how he was framed and additional factual support
for previous theories. For example, if Avery believed that forensic testing would
have shown that his DNA was planted on the RAV4 key, he of course could have
raised the issue in his 2013 motion. But to do so with any chance of success, he
would have had to allege that postconviction counsel was ineffective for not
raising an ineffective assistance of trial counsel claim on that basis, and to succeed
on that claim, he would have had to show that this new claim was “clearly
stronger” than those actually brought on direct appeal. See Romero-Georgana,
360 Wis. 2d 522, ¶¶45-46. Absent forensic testing supporting the basis for such a
showing, this would be an all but impossible task. Thus, “unique circumstances”
might exist wherein a pro se defendant is unable to perform or pay for an
investigation but later gains the resources to uncover new material facts and
develop alternative theories of the crime and, on that basis, can claim a sufficient
reason for not previously raising claims based on those theories. We do not
perceive the policies underlying Escalona-Naranjo—namely, the need for finality
in litigation—to preclude this result. Indeed, to hold otherwise could unfairly
punish defendants who bring postconviction motions based on all facts known to
or reasonably discoverable by them. For Escalona-Naranjo purposes, claims
based on newly conducted investigations, which could not have been previously
undertaken, would appear to be little different than claims based on newly

13
No. 2017AP2288-CR

discovered evidence, see ¶43, and we will treat them as such in determining
whether they are procedurally barred by virtue of Avery’s prior pro se
postconviction motion.

¶23 That said, the majority of Avery’s ineffective assistance of trial
counsel claims are not based on investigations that Avery, now represented by
counsel, was only recently able to perform.8 On the other hand, we have identified

8
There are a number of claims, some overlapping, that cannot be said to be based on
new scientific or forensic experiments or investigations by Avery’s experts, and which we
therefore will not address except to list here. Several of these claims relate to issues that Avery’s
new experts did explore—and which we discuss in more detail below—but the claims in this list
are not themselves dependent on the results of new investigations. Several of these claims also
appear, superficially, to be based on some new test or experiment (such as a recreation with a key
and a bookshelf), but, crucially, these claims are not dependent on Avery’s ability to hire new
experts, spend money on new tests, etc. We are allowing Avery to overcome the procedural bar
of his 2013 petition by demonstrating that he did not have the resources to earlier uncover the
factual bases for his claims, but this cannot extend to simple experiments or recreations that
require no expert contribution and/or that could have been easily conducted at some point prior.

(continued)

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No. 2017AP2288-CR

seven claims, all premised on the results of forensic testing, that could conceivably
fall in this category. So as to address, as nearly as allowable, the merits of his
motion, we will assume that Avery has alleged a sufficient reason for not raising
these seven claims in his 2013 motion. These claims are that trial counsel was
ineffective for failing to:

1. Present a blood spatter expert, who would have found
that Avery’s blood was planted in the RAV4.

2. Present a blood spatter expert, who would have found
that Halbach was not thrown in rear of the RAV4 after
being fatally injured.

3. Present a blood spatter expert, who would have
determined that the theory counsel presented at trial as

These claims are that trial counsel was ineffective for failing to: (1) cross-examine some
of the State’s expert witnesses instead of retaining their own; (2) thoroughly investigate other
suspects so as to identify a suspect meeting the requirements of State v. Denny, 120 Wis. 2d 614,
357 N.W.2d 12 (Ct. App. 1984); (3) use available evidence supporting the theory that the RAV4
was moved onto Avery’s property by the real killer; (4) investigate Avery’s pre-trial belief that
his blood was taken from blood drippings in his trailer sink and planted in the RAV4 (this claim,
standing alone, does not rely on new investigations; we discuss related claims below); (5) present
a DNA expert’s opinions about blood being planted in the RAV4 (Avery does not indicate that
current postconviction counsel retained such an expert; counsel did retain a “blood spatter
expert,” whose findings form the basis for other claims discussed below);
(6) demonstrate that Halbach’s key was planted in Avery’s bedroom, by recreating how the key
was found; (7) demonstrate that the RAV4 key found in Avery’s trailer was a subkey or
secondary key, as should have been evident from the 1999 Toyota RAV4 manual; (8) detect and
raise a Fourth Amendment challenge regarding DNA testing that allegedly violated the scope of a
search warrant; (9) investigate a “chain of custody fabrication” that allegedly allowed law
enforcement to illegally collect and then plant Avery’s DNA on the RAV4 hood latch (we discuss
below claims based on the results of experiments on the RAV4 hood latch); (10) present an expert
on police practices and investigations, who would have demonstrated errors in the handling of the
investigation; (11) conduct “a simple experiment” to demonstrate that a witness could not have
smelled burning plastic (Halbach’s electronics and camera) in Avery’s burn barrel, as the witness
testified to at trial; and (12) investigate “a variety of topics,” all based on evidence known to
counsel before trial. Avery also argues that Halbach’s ex-boyfriend was the real killer, but he
does not present any cognizable claim based on this argument. That is, Avery speculates that the
ex-boyfriend meets the Denny “legitimate tendency” test for introducing trial evidence that a
third party committed the crime, but without pointing to any true newly discovered evidence,
explaining why trial counsel rendered ineffective assistance during his Denny hearing in this
regard, or otherwise demonstrating why such conclusion entitles him to a new trial.

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No. 2017AP2288-CR

to how Avery’s blood was planted in the RAV4 was
untenable.

4. Present a trace materials expert, who would have found
that the RAV4 key recovered from Avery’s bedroom
was Halbach’s subkey or secondary key.

5. Present a DNA expert, who would have found that
Avery’s DNA was planted on the subkey by law
enforcement.

6. Present a DNA expert, who would have found that
Avery’s DNA was planted on the RAV4 hood latch.

7. Present a forensic fire expert, who would have found
that Halbach’s body was not burned in Avery’s burn pit

Merits of Avery’s claims of ineffective assistance of trial counsel

¶24 We now turn to whether Avery’s ineffective assistance of trial
counsel claims have alleged “sufficient material facts—e.g., who, what, where,
when, why, and how—that, if true, would entitle [him] to the relief he seeks,” see
John Allen, 274 Wis. 2d 568, ¶2, bearing in mind that he is not entitled to a
hearing where the record conclusively demonstrates otherwise, see Balliette, 336
Wis. 2d 358, ¶18. In short, Avery must show that a hearing would not be
frivolous. See Romero-Georgana, 360 Wis. 2d 522, ¶64.

¶25 Avery cannot make this showing. First, he has wholly failed to
demonstrate deficient performance: that trial counsel’s “representation fell below
an objective standard of reasonableness” by counsel’s not retaining experts similar
to those he later retained. See Romero-Georgana, 360 Wis. 2d 522, ¶40 (citation
omitted). Avery apparently assumes that his findings speak for themselves and
that, given the strength of his later claims, the necessity for such experts should

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No. 2017AP2288-CR

have been obvious at the time of trial.9 Avery also assumes, again without
explanation, that any experts retained by trial counsel would have reached the
same conclusions as his later experts. But even accepting these premises, Avery
has not demonstrated prejudice: that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” See id., ¶41 (quoting Strickland, 466 U.S. at 694).

¶26 Avery’s first three claims concern trial counsel’s failure to retain a
blood spatter expert. Avery argues in his motion that counsel was ineffective
because such an expert would have found that his “blood was planted in the
RAV4.” His retained expert’s actual findings, however, are not nearly so
conclusive. The expert did not conclude that Avery’s “blood was planted” or rule
out Avery as the source of the blood. Rather, he determined that the presence of
Avery’s blood was “consistent with being randomly distributed from a source
because his blood is present in some locations but absent in some [other]
reasonably anticipated locations” and that “[t]he absence of blood stains in these

9
Relatedly, Avery fails to demonstrate how the defense strategies that trial counsel did
pursue rendered counsel’s performance constitutionally deficient. As an example, he points to
trial counsel’s failure to obtain a blood spatter expert but does not address why counsel’s chosen
strategy for explaining the presence of his blood in the RAV4 represented deficient performance
at the time of trial, without the benefit of hindsight. This is a repeated shortcoming in Avery’s
briefing, both to the circuit court and on appeal, and represents exactly the type of “Monday-
morning quarterbacking” that we strive to avoid in evaluating a claim of ineffective assistance of
counsel. See Weatherall v. State, 73 Wis. 2d 22, 25-26, 242 N.W.2d 220 (1976)
(“[P]ostconviction counsel … stress[es] what he would have done differently had he conducted
the defense at time of trial. Our court has called this hindsight-is-better-than-foresight approach
to be ‘Monday-morning quarterbacking’ and has made clear that … it is the right of a defendant
and trial counsel to select the particular defense, from among the alternatives available, upon
which they elect to rely.” (footnotes and citation omitted)); Strickland v. Washington, 466 U.S.
668, 689 (1984) (“Judicial scrutiny of counsel’s performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”).

17
No. 2017AP2288-CR

locations is inconsistent with an active bleeder” (the State alleged at trial that
Avery’s finger was actively bleeding while he was in the RAV4). The expert
further determined that the bloodstains were “consistent with an explanation other
than Mr. Avery being in the RAV4 and depositing his blood in those locations
with his actively bleeding cut finger.”10

¶27 Certainly, these conclusions tend to support Avery’s general theory
that he was framed, and their presentation may have been useful at trial. But
Avery’s burden in a postconviction motion is not merely to point to helpful
evidence but to show how its introduction at trial could reasonably have led to a
different outcome. See Strickland, 466 U.S. 668 at 694. He cannot meet this
burden by misrepresenting the expert’s results as “demonstrating” that he was
framed. Absent additional facts or argument, we cannot assume that such
measured support for Avery’s frame-up theory would have led to an acquittal.

¶28 Next, Avery argues that counsel was ineffective because a blood
spatter expert would have refuted the State’s narrative that Halbach was thrown in
the rear of the RAV4 after being fatally injured. Avery asserts that, to the
contrary, Halbach “was struck on the head after she opened the rear cargo door”
and was then “struck repeatedly by” a mallet or hammer—without explaining why

10
For the purpose of this motion, we accept that these conclusions are based on sound
methods. It is unclear, however, how this expert determined that a person actively bleeding in the
RAV4 would have left a different blood pattern than what was found in Halbach’s vehicle.
According to the expert’s affidavit referenced in the June 2017 motion, he recreated how blood
could be taken from Avery’s sink and selectively planted in the RAV4. The June 2017 motion
states that (presumably some different) “blood spatter experiments conducted with actual blood
on the subject’s middle finger conclusively demonstrate that the blood would have been deposited
on” additional locations within the RAV4. That experiment is not described in the referenced
affidavit, however, so we do not know the methodology supporting this conclusion.

18
No. 2017AP2288-CR

an alternative finding as to how she was killed supports his theory that he was
framed.

¶29 Third, Avery contends that a blood spatter expert could have advised
counsel that its trial strategy for explaining the presence of his blood in the RAV4
was flawed (i.e., that such strategy would have failed to persuade the jury). This
assertion is entirely speculative; as a matter of law, such guesswork falls well short
of demonstrating ineffective assistance of counsel.

¶30 Fourth, Avery argues that counsel was ineffective for not retaining a
trace materials expert, who would have found that the RAV4 key recovered from
Avery’s bedroom was Halbach’s secondary key or subkey. But it is, again,
completely speculative to assume that the subkey was therefore planted (and not,
instead, that Halbach herself was using her subkey and not her main key on the
day of her death).

¶31 Avery’s fifth and sixth claims concern the retention of a DNA
expert. According to Avery, such an expert would have determined that his “DNA
was planted on the key” by law enforcement. Avery again misstates the evidence.
His expert analyzed DNA from “[a]n exemplar key, reportedly held by Mr. Avery
as if to start a car, i.e., gripped by ungloved fingers for twelve (12) minutes.” The
expert determined that ten times less DNA was deposited on the exemplar key
than on the key recovered by law enforcement. The expert further concluded that
“[i]f the … key was indeed ‘enhanced,’ [i.e., tampered with] then it is likely that
some … personal item of Mr. Avery’s was used for this purpose,” such as “a
toothbrush or a cigarette butt.” Thus, once again, the findings of Avery’s expert
are significantly more ambiguous than what is presented in his motion. We have
no reason to doubt the truth of these findings (although we note that the expert did

19
No. 2017AP2288-CR

not observe Avery holding the key), but simply determining that Avery deposited
significantly less DNA in a controlled experiment does not indicate that Avery
could not or did not deposit more DNA under other conditions, and it certainly
does not demonstrate that law enforcement planted DNA on the key. Thus, even
accepting the truth of these new findings, we cannot conclude that there is a
reasonable probability that their introduction at trial would have led to a different
result.

¶32 Avery’s sixth claim is that counsel was ineffective for not retaining a
DNA expert, who would have determined that DNA from Avery’s sweaty hands
“was never deposited [by Avery] on the RAV4 hood latch,” demonstrating that
“Mr. Avery was being framed.” In what is becoming a pattern, Avery has
misrepresented the facts. The DNA expert Avery has now hired did not determine
that Avery “never deposited” the DNA and did not state that Avery was framed.
Instead, the expert performed a series of experiments on an identical vehicle,
wherein volunteers opened the car hood using the hood latch. Only four of the
fifteen volunteers deposited DNA, and those four deposited significantly less
DNA than present in the swab from Halbach’s RAV4 hood latch. From this
experiment, the expert extrapolated the possibility that law enforcement could
have retrieved and relabeled a swab of Avery’s groin (which was collected and
discarded for exceeding the scope of a search warrant) as coming from the hood
latch. The expert admitted, however, that “the convenience of this explanation …
and the fact that it accounts for the physical findings observed from the analysis …
does not prove evidence tampering, or more precisely, evidence reassignment.”
Thus, again, we are left with facts that, even if true, would not entitle Avery to
relief: in a controlled experiment, the minority of volunteers who deposited sweat
on the RAV4 deposited significantly less sweat than on the swab recovered by law

20
No. 2017AP2288-CR

enforcement. There is no context to these findings—no showing of why Avery,
under noncontrolled conditions, could not have deposited more sweat than the
volunteers, much less any showing that the DNA was therefore planted. Without
such context, this evidence is not exculpatory or even particularly relevant, and
Avery’s attempt to link it to the alleged reassignment of his groin swab is wholly
unsupported by any facts of record.

¶33 Avery’s seventh and final claim is that trial counsel was ineffective
for not presenting a forensic fire expert, who would have found that Halbach’s
“body was not burned in the Avery burn pit and [that] her bones were therefore
planted.” Avery’s cited factual support once again does not live up to the advance
billing. His forensic fire expert did state that he “disagree[d] with [the State’s
expert’s] opinion that the main destruction of the body took place in” the Avery
burn pit. But Avery does not explain why, from this conclusion, it follows that
Halbach’s remains were planted, because he does not explain why he himself
would have been unable to cremate some portion of Halbach’s body in another
location—including in his burn barrel, where additional bone fragments were
found. More important, Avery does not explain where or how prejudice arises,
given that his own forensic anthropologist testified to this same conclusion at trial.
Avery’s expert further concluded that, contrary to the State’s theory at trial,
Halbach’s body could not have been burned to the extent it was burned in only
four hours. Again, this is a fact without context; at most, presenting such evidence
at trial would have enabled the jury to weigh two competing expert opinions on
how Halbach was cremated. Avery again has presented no reasoned basis for
concluding that the outcome of trial would have been different.

¶34 In sum, the seven ineffectiveness claims in Avery’s June 2017
motion that are based on new investigations fail on the merits. Avery has not

21
No. 2017AP2288-CR

shown that trial counsel provided objectively deficient representation by not hiring
experts similar to those he later hired. Instead, Avery merely assumes that the
need for such experts should have been obvious at the time, based on the later
findings of his own experts. These later findings, however, are either equivocal,
irrelevant, or both. In addition, Avery has not explained how these findings would
have negated or undermined the cumulative effect of the other trial evidence.
Thus, Avery has failed to show that, even if all these findings were admitted at
trial, the result would have been different. Consequently, Avery has not alleged
sufficient material facts entitling him to a hearing on his claims of ineffective
assistance of counsel.

Brady Violations

¶35 Avery next argues that the State withheld favorable evidence in its
possession, in violation of Brady v. Maryland, 373 U.S. 83 (1963). He first
alleges that the State suppressed a voicemail recording that Halbach left on the
answering machine of her photography client, whom she met on the same day that
she visited Avery’s property. Next, he alleges that the State withheld an unedited
video of flyover footage of Avery’s property, and instead released to Avery an
edited version with just three minutes of footage. Finally, Avery argues that
“investigators concealed their knowledge that [Halbach’s] RAV4 was driven onto”
the property of Avery’s next door neighbor.

¶36 Avery does not claim that these alleged Brady violations were
unknown and undiscoverable at the time of his 2013 motion or on direct appeal.
His given explanation for not raising any of his new claims in 2013 is general and
relates to his status as a pro se prisoner litigant; his explanation for not raising his
new claims on direct appeal does not reference the Brady claims. Thus, Avery has

22
No. 2017AP2288-CR

not overcome the procedural bar of Escalona-Naranjo by demonstrating a
sufficient reason for not raising his Brady claims earlier. See Escalona-Naranjo,
185 Wis. 2d at 181-82.

¶37 In any case, Avery’s June 2017 motion does not sufficiently allege
any Brady violations. “A defendant has a due process right to any favorable
evidence ‘material either to guilt or to punishment’ that is in the State’s possession
….” State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468
(quoting Brady, 373 U.S. at 87). A defendant is entitled to a new trial based on
the denial of such right by showing that: (1) the evidence is favorable to the
defendant, either because it is exculpatory or impeaching; (2) the evidence was
suppressed by the state, either willfully or inadvertently; and (3) the evidence is
material. Wayerski, 385 Wis. 2d 344, ¶35. The standard for materiality is the
same as under the prejudice prong of Strickland: “evidence is material only if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” State v. (Kevin)
Harris, 2004 WI 64, ¶14, 272 Wis. 2d 80, 680 N.W.2d 737.

¶38 Avery has not demonstrated any of the above elements for any of his
claims, but what is clearest on its face is that this evidence—where it even
exists—is immaterial. Avery’s first claim centers on the fact that, on the day
Halbach visited his property, she left a voicemail that she could not locate the
residence of one of her other photography clients, whom she also visited that day.
Avery argues that had this voicemail been played at trial, it would have “refuted
the[] theory that [Halbach’s] final appointment was [with] Mr. Avery.” At trial,
however, the photography client testified that, after Halbach left the voicemail on
the client’s answering machine, she found the client’s house, took photographs,
and left within fifteen minutes. Then, approximately twenty to thirty minutes after

23
No. 2017AP2288-CR

Halbach left the voicemail (as established through her phone records), other
witness testimony placed her as driving to, and then on, Avery’s property. The
voicemail is therefore consistent with the evidence, which is that Halbach left a
voicemail, visited a client, and then visited Avery’s property. There is no basis for
Avery’s assumption that the content of the voicemail would have refuted the
State’s theory about when or how Halbach was killed.

¶39 Avery’s next claim is that he received an edited version of a flyover
video of his property that may have contained favorable evidence. As far as we
can tell, this claim is based only on Avery’s unsubstantiated belief that a second
video must exist because the airplane was in the air for four hours but the video he
received was only three minutes long. There is no evidence of a Brady violation
here because Avery merely speculates that evidence not even known to exist was
suppressed.

¶40 Finally, Avery argues that investigators knew, but did not disclose to
him, that Halbach’s RAV4 was driven onto the property of Avery’s next door
neighbor. It is difficult to follow this argument, but it is based on an affidavit from
the neighbor, who does not state that the RAV4 was on his property, but rather
attests to a conversation with law enforcement agents in which they stated their
belief as to how Halbach’s vehicle was driven onto Avery’s property (presumably,
after Halbach’s death, but the agents could have been referring to Halbach’s
driving route on the day of her death). Avery suggests that the information in the
affidavit supports his claim that law enforcement framed him for the crime by
driving the RAV4 through the neighbor’s property and planting it on his. This
argument is unintelligible and, in any case, we cannot perceive any Brady
violation. There was no evidence here to suppress, and the facts in the affidavit
are inconsequential.

24
No. 2017AP2288-CR

Newly Discovered Evidence

¶41 Finally, Avery raises two11 claims based on newly discovered
evidence. He contends that “new scientific evidence demonstrates that the
damaged bullet … in Mr. Avery’s garage was not shot through [Halbach’s] head
causing her death.” He also argues that, according to new tests, the swab labeled
as coming from Halbach’s hood latch (containing Avery’s DNA) was not, in fact,
taken from the hood latch.12

¶42 In theory, a defendant should be able to more easily overcome the
Escalona-Naranjo procedural bar when basing claims on newly discovered
evidence—which, after all, concern evidence not available in prior proceedings.
This is not the case here, however, as is demonstrated by simply turning to the
merits of Avery’s claims.

¶43 To obtain a new trial based on newly discovered evidence, a
defendant must show that: “(1) the evidence was discovered after conviction;
(2) the defendant was not negligent in seeking evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not merely cumulative.”
State v. Edmunds, 2008 WI App 33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590

11
A third claim repackages one of Avery’s ineffectiveness claims, arguing that the
results of the experiment with the RAV4 hood latch (wherein volunteers touched an identical
RAV4, which was then swabbed and tested) constitute newly discovered evidence. Avery cannot
have it both ways. Above, we assumed for the purpose of this motion that trial counsel’s failure
to obtain such results might constitute ineffective assistance of counsel. We will not now analyze
a claim based on the premise that these same results were undiscoverable at the time of trial. In
any case, it seems evident that trial counsel could have performed this simple experiment, so it is
not apparent how the results of this experiment could constitute newly discovered evidence.
12
This claim is based on different evidence than that forming the basis for Avery’s
ineffective assistance claim on this same issue.

25
No. 2017AP2288-CR

(citation omitted). If the defendant meets these criteria, then the circuit court must
determine “whether a reasonable probability exists that a different result would be
reached in a trial.” Id. (citation omitted). To be entitled to a hearing on
postconviction claims of newly discovered evidence, the defendant must allege
sufficient material facts satisfying these elements. John Allen, 274 Wis. 2d 568,
¶2.

¶44 Avery cannot meet one of more of these elements for either of his
claims. As a threshold matter, he has not shown that his purportedly “new”
evidence is, in fact, new. Avery asserts that the equipment yielding his test results
was “previously unavailable,” was “new technology,” and/or was manufactured in
2016. But aside from these cursory statements, Avery does not address whether
technology available at the time of trial could have yielded the same results.13

¶45 Beyond that, Avery’s evidence is largely irrelevant. The premise of
his first claim is that, if the damaged bullet found in his garage did not deliver
Halbach’s fatal shot to the head, then he could not be the perpetrator. But the
State never argued that either of the bullets recovered from Avery’s garage killed
Halbach. At trial, the State showed that Avery’s gun fired the bullet and that the
bullet had Halbach’s DNA on it. But the State did not argue that this specific
bullet entered Halbach’s skull or killed her (nor was it necessary that it do so in
order to implicate Avery in her murder). There is nothing to suggest that shots
fired into Halbach’s skull were the only shots fired at her or that every bullet fired

13
For example, the State points out that its trace expert at trial used the exact same
technology and performed the same type of elemental analysis on charred bone fragments before
trial that Avery’s expert performed in 2017. Both experts used a “scanning electron microscope
with an energy dispersive x-ray analyzer” for their analysis, and there is no statement in the
affidavit of Avery’s expert as to why his test could not have been performed in 2006.

26
No. 2017AP2288-CR

at her contained skull fragments—there were, after all, eleven casings and only
two bullets found in the garage. The presence of Halbach’s DNA on a bullet
found in Avery’s garage is particularly damning evidence—regardless of whether
it was the bullet that entered her skull—and strongly implicates Avery absent
evidence that Halbach’s DNA was planted (a supposition that, even now, Avery
has done little to develop). At the very least, Avery’s new evidence—if it in fact
is new—is consistent with the State’s theory of the crime.

¶46 Avery next argues that his expert observed the hood latch swab and
determined that “[s]wabs collected from the hood latches of two exemplar vehicles
(a 2012 Rav 4 and a 2007 Volvo S60) each showed a considerably heavier loading
of debris” than the swab from the RAV4 hood latch. The expert apparently
reached this result, however, by observation alone, concluding that “[w]hereas
particles on the [RAV4] hood latch swab … could only be seen with the aid of a
microscope, a swab from each exemplar vehicle showed a heavy, dark streak of
collected debris that is clearly visible to the unaided eye.” We are left to wonder
how new testing methods or equipment could possibly aid this analysis. In any
event, the expert did not determine that the purported RAV4 swab “was not used
to swab the hood latch,” as Avery claims—much less that this swab was
reassigned or otherwise used to frame Avery. There is no possibility that the
presentation of this evidence would have yielded a different trial result.

Conclusion As To The June 2017 Motion

¶47 Because Avery has not shown that he is entitled to a hearing on any
claim, we review the circuit court’s denial of a hearing for an erroneous exercise
of discretion. See Romero-Georgana, 360 Wis. 2d 522, ¶30. We find that the
court did not err in this regard. We agree with the court’s assessment that, had

27
No. 2017AP2288-CR

Avery’s “equivocal” and “ambiguous” conclusions been introduced at trial, there
would have been no reasonable probability of a different result. The circuit court
appropriately exercised its discretion.

¶48 We have given Avery the benefit of several doubts as to why he did
not raise these claims earlier. Even considered on the merits, the claims asserted
in his June 2017 motion are speculative, conclusory, and in some cases
misleading. The circuit court did not err in denying these claims without a
hearing.

MOTION #2: OCTOBER 2017 MOTION FOR RELIEF FROM ORDER

¶49 Three days after the circuit court denied his WIS. STAT.
§ 974.06 motion, Avery filed a motion for relief pursuant to WIS. STAT.
§ 806.07(1)(a). The stated basis for the motion was that, a month prior to the
court’s order, defense counsel and prosecutors had agreed to additional testing of
Halbach’s RAV4 and of bones found in the Manitowoc County gravel pit, that the
parties had agreed that Avery would amend the June 2017 motion, and that Avery
“intended to inform the court that an amended motion would be filed” but “did not
anticipate the court filing its order” before he could do so.14

14
On appeal, Avery implies that the State misled him about the need to expeditiously
inform the circuit court of his wish to amend/supplement the June 2017 motion. For example,
Avery states, “When current postconviction counsel inquired as to whether the circuit court
should immediately be informed of the agreement, [the prosecutor] stated that once he had
finalized the scheduling of the RAV-4 examination … a stipulated order could be presented to the
circuit court.” This statement appears to be Avery’s counsel’s own uncorroborated description of
events; there is no basis in the record for this or any related argument that the State
misrepresented the postconviction process. In any case, as the circuit court explained, the State
cannot determine whether and how motions to the court are amended or supplemented, and Avery
had no grounds for assuming otherwise. Moreover, this argument was not presented to the circuit
court and is thereby forfeited. See Huebner, 235 Wis. 2d 486, ¶¶10-12 & n.2. Accordingly, we
address this point no further.

28
No. 2017AP2288-CR

¶50 The circuit court denied the motion, explaining that, after receiving
the June 2017 motion, “[n]o communication” was made “requesting that the court
withhold its final decision [or] indicating that the original motion was incomplete
and would be supplemented.” The court acknowledged that the defense and
prosecution might very well have discussed amending the June 2017 motion in
anticipation of the court’s granting a hearing, but

the court was not informed of any such negotiations until
after the final ruling in this matter had been issued. None
of the agreements were submitted to the court for its
approval until after the final decision was made in the
defendant’s original motion. It is for the court, and not the
parties, to determine if amendments to motions previously
filed will be permitted [and] to establish scheduling for
matters pending before it…. Agreements should have been
submitted for approval of the court prior to the final
decision on the original motion being reached. The defense
cannot try to amend a motion that was filed without
reservation only after it receives an adverse ruling.

¶51 WISCONSIN STAT. § 806.07(1)(a) provides that the court “may
relieve a party … from a judgment, order or stipulation for … [m]istake,
inadvertence, surprise, or excusable neglect.” We review the circuit court’s
decision on a motion for relief under § 806.07(1) for an erroneous exercise of
discretion, meaning we will sustain the court’s ruling where it applied the
appropriate law to the facts on record so as to “achiev[e] a reasoned and
reasonable determination.” Milwaukee Women’s Med. Serv., Inc. v. Scheidler,
228 Wis. 2d 514, 524, 598 N.W.2d 588 (Ct. App. 1999) (citation omitted).

¶52 As explained above, a movant is not entitled to an evidentiary
hearing merely because he or she filed a WIS. STAT. § 974.06 motion. In the
typical case, the circuit court will evaluate the facial sufficiency of the motion
before ordering the State’s response or scheduling a hearing. See § 974.06(3);
Romero-Georgana, 360 Wis. 2d 522, ¶¶30, 37. Thus, circuit courts routinely

29
No. 2017AP2288-CR

receive and deny § 974.06 motions where there is no basis for a hearing; as one
would expect, courts are not required to, and generally do not, update the movant
about when a decision on the motion is forthcoming.

¶53 Avery appears to acknowledge these basic principles of
postconviction procedure. Nonetheless, he argues that the circuit court
erroneously exercised its discretion here because, in denying his motion for relief,
it ignored the existence of a 2007 order.15 This 2007 “order on preservation of
blood evidence and independent defense testing” directs the State to preserve
swabs and bloodstain samples collected from the RAV4 and containing Avery’s
DNA, and allows such items to be submitted for independent testing “without
further order of this Court.”

¶54 Avery’s argument with respect to the 2007 order misses the mark
entirely. Even if all of the items the parties contemplated testing in 2017 had been
described in this order, the order has no bearing on the presentation, timing, or
amendment of any WIS. STAT. § 974.06 motion. The circuit court correctly
concluded that it was not required to revisit its decision on the June 2017 motion
upon being belatedly informed that Avery wished to amend that motion. Thus, the
court did not erroneously exercise its discretion in declining to vacate an order
adverse to Avery so as to allow amendment of “a motion that was filed without
reservation.”

15
The State argues that this argument was forfeited because it was raised for the first
time on appeal. We agree that, at the very least, the argument was not well developed below. For
completeness, however, we will exercise our discretion to address this argument on the merits.
See Huebner, 235 Wis. 2d 486, ¶¶10-12 & n.2.

30
No. 2017AP2288-CR

MOTION #3: OCTOBER 2017 MOTION FOR RECONSIDERATION

¶55 Shortly after filing his WIS. STAT. § 806.07 motion, Avery filed a
motion to reconsider.16 As relevant to this appeal,17 he alleges that newly
discovered evidence warrants reconsideration of the court’s denial of his
June 2017 motion.

¶56 A party may prevail on a motion for reconsideration by presenting
newly discovered evidence, but such motion is not a platform “to introduce new
evidence that could have been introduced” as part of the original proceeding.
Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons,
Ltd., 2004 WI App 129, ¶¶44, 46, 275 Wis. 2d 397, 685 N.W.2d 853. The term
“newly discovered” presupposes that the evidence was unknown at the time of
final judgment—that is, it was not under the control or knowledge of the movant,
or discoverable by reasonable diligence. See id., ¶¶46-48. “We review a trial

16
The motion to reconsider was followed by several subsequent “supplements,” in which
the motion was revised. For convenience, we discuss these as a single motion.
17
In addition to the arguments addressed in this section, Avery’s motion for
reconsideration argues that the circuit court made manifest errors of fact and law in denying his
June 2017 motion. We review the June 2017 motion in the first portion of this decision and
conclude that the court did not err, except as noted in this footnote. Therefore, we address in this
section only those arguments based on claims of newly discovered evidence.

In its decision on the June 2017 motion, the circuit court mischaracterized Avery’s
allegations relating to ineffective assistance of postconviction counsel. Avery raised these
allegations so as to explain why his claims were not procedurally barred by Escalona-Naranjo,
185 Wis. 2d 168, 517 N.W.2d 157 (1994) (that is, why he did not raise his claims on direct
appeal). The circuit court misconstrued Avery to allege ineffective assistance of appellate
counsel and concluded that Avery was required to file a Knight petition with this court in order to
do so. See State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992). On appeal, Avery
correctly points out that this was an error. Regardless, our review of the sufficiency of the
June 2017 motion is de novo, and we conclude that Avery did not demonstrate ineffective
assistance of postconviction counsel. Therefore, the circuit court’s error was harmless.

31
No. 2017AP2288-CR

court’s decision on a motion for reconsideration under the erroneous exercise of
discretion standard.” Id., ¶6.

¶57 A motion to reconsider on the basis of new evidence would seem to
be of doubtful utility in cases, like this, where the movant is free to file successive
motions. See WIS. STAT. § 974.06(2), (4). Nonetheless, we perceive no legal
barrier to Avery’s bringing such a motion, and the State does not argue as much,
except to point out that this motion cannot be the means of avoiding the procedural
bar of Escalona-Naranjo. In this context, to be entitled to reconsideration on the
basis of newly discovered evidence, the movant must show that the evidence was
unknown and not reasonably discoverable when the first
§ 974.06 motion was filed and that the evidence reasonably relates to those claims
brought in the first motion. See Koepsell’s Olde Popcorn Wagons, Inc., 275
Wis. 2d 397, ¶¶44, 46-48. Alternatively, the movant may simply bring a new
§ 974.06 motion and demonstrate his or her “sufficient reason” for not raising the
claim in the prior § 974.06 motion by showing that the evidence underlying that
claim was then unknown and not reasonably discoverable.

¶58 Avery makes no showing in his motion to reconsider as to why he
could not, with reasonable diligence, have included this “new” evidence in his
June 2017 motion. Instead, he uses this third motion as a vehicle for raising new
claims. None of these claims or evidence, however, have any bearing on the
claims raised in the June 2017 motion, so it is unclear which original claims the
circuit court was being asked to reconsider, or why. In any case, the majority of
this evidence cannot reasonably be considered unavailable or undiscoverable at the

32
No. 2017AP2288-CR

time Avery filed his June 2017 motion.18 Nor, if we simply treat this motion as a
new WIS. STAT. § 974.06 motion, does Avery demonstrate why these claims are

18
Avery’s motion for reconsideration raises claims based on evidence that cannot
reasonably be considered “newly discovered” (i.e., unavailable and not discoverable through
reasonable diligence at the time of the June 2017 motion). See Koepsell’s Olde Popcorn
Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶¶44, 46-48, 275
Wis. 2d 397, 685 N.W.2d 853. Therefore, we will not address these claims further, except to list
and briefly discuss them here. These are that: (1) the State withheld evidence that Halbach’s
vehicle was seen on the street days after her disappearance (claim based on 2017 affidavit of
witness attesting that, in 2005, he observed a vehicle matching a missing person’s poster
description of Halbach’s car and informed law enforcement of that fact, but with no showing that
Avery was unable, through reasonable diligence, to discover this information prior to filing the
June 2017 motion); (2) trial and postconviction counsel were ineffective for not presenting
impeachment testimony on key witnesses, or, in the alternative, the State violated Avery’s right to
due process by knowingly using false testimony at trial (claims based on evidence collected at the
time of Halbach’s disappearance and presumably known to Avery at the time of trial, with no
representation that Avery learned of this evidence only after filing the June 2017 motion and
could not reasonably have discovered it earlier); (3) there is another possible suspect meeting the
Denny test (claim based on evidence showing how long it takes to drive away from Avery’s
property); (4) there is another possible suspect meeting the Denny test (claim based on evidence
gathered by examining images found on a computer; Avery states that the computer search was
the result of “2017 technology” but does not explain whether technology available earlier would
have uncovered these images or why, through reasonable diligence, he could not have uncovered
these images prior to filing the June 2017 motion); (5) alleged Brady violation based on 2005
evidence purportedly withheld, concerning who might have had possession of Halbach’s day
planner after her death (Avery does not explain when he received this evidence or why it was not
reasonably discoverable prior to June 2017); (6) there is another possible suspect meeting the
Denny test (claim based on statements made to police in 2005 about Avery’s sister, and not
Avery, requesting that Halbach photograph a car on Avery’s property, but with no showing that
this evidence was unknown or not reasonably discoverable prior to June 2017); (7) there is
another possible suspect meeting the Denny test (based on evidence that Avery’s sister attempted
to hide files on her computer that might link her son to the crime; this information was reported to
the police prior to trial and Avery does not allege that he was unaware of this evidence at trial or
explain why the evidence was not reasonably discoverable prior to June 2017). Motion #3 also
contains arguments that are the subject of Motion #4, and which we will therefore discuss in the
following section.

Because these claims were brought in a motion to reconsider, we conclude only that the
circuit court did not erroneously exercise its discretion in declining to revisit the June 2017
motion in light of the content of this motion. Neither we nor the circuit court have squarely
considered whether these claims are procedurally barred under Escalona-Naranjo or whether
Avery pled sufficient material facts entitling him to a hearing (although our analysis overlaps
with the former inquiry). Such consideration would have to come on a separately filed WIS.
STAT. § 974.06 motion, and we express no opinion as to whether such claims would be barred in
the event such a motion is filed.

33
No. 2017AP2288-CR

not procedurally barred under Escalona-Naranjo (setting aside the question of
why the claims were not alleged in the June 2017 motion, Avery has not explained
why they were not alleged in the 2013 motion or on direct appeal).19

¶59 We do note that buried in the motion are two claims based on
evidence that appears on the face of the claims to be “newly discovered.”
According to Avery, in October 2017, his sister, Barb Tadych (who lived on the
Avery property and whose son, Bobby Dassey, Avery identifies as an alternative
suspect in the crime) told him two pieces of information that would impeach her
son’s testimony about last seeing Halbach walk toward Avery’s trailer on the day
of her disappearance. In Avery’s view, his sister “admitted that she knew that
[Halbach] had left the property” on the day in question. This evidence, however,
is equivocal and does not clearly establish that Halbach in fact left the property on
the day of her death or that any witness was aware of or lied about this fact at
trial.20 Moreover, the evidence does not bolster any claim in the June 2017 motion

19
On appeal, Avery inexplicably argues that the State is “estopped from raising …
procedural bar arguments” relating, presumably, to both this October 2017 motion to reconsider
and his earlier June 2017 motion—based on the sole fact that the State represented in
September 2017 that it would not oppose amendment of the June 2017 motion. Assuming
without deciding that the doctrine of estoppel might apply to the postconviction process under
some circumstances, here, the State’s representation clearly had no bearing on a motion already
filed and, as a matter of law, could not relieve Avery of his burden in any subsequent WIS. STAT.
§ 974.06 motion to demonstrate why newly raised claims were not procedurally barred.
20
The first piece of evidence is recorded statements in an October 2017 phone call
between Avery and Barb Tadych and her husband, Scott Tadych. Avery identifies the full
relevant portion of the transcript as follows:

Steven Avery: Bobby’s home.
Barb Tadych : He wasn’t always home.
Steven Avery: Well, you—well, most of the time he was home.
Barb Tadych : No.
Scott Tadych: He doesn’t know fucking shit.
Steven Avery: And he said he [sic] left. She left.
Scott Tadych: That’s right.
(continued)

34
No. 2017AP2288-CR

so as to warrant reconsideration of that motion. Even viewed on its own merits,
the evidence does not entitle Avery to a WIS. STAT. § 974.06 hearing because he
has not shown that it is material. See Edmunds, 308 Wis. 2d 374, ¶13. At best,
we have two unsworn statements by Barb Tadych that Dassey told her something
that is potentially inconsistent with his trial testimony. This is hearsay that would
be inadmissible at a new trial, meaning that it cannot constitute newly discovered
evidence as a matter of law. See State v. Bembenek, 140 Wis. 2d 248, 253, 409
N.W.2d 432 (Ct. App. 1987).

¶60 Avery chose to frame these claims in the context of a motion to
reconsider, but without applying that legal standard or (in the alternative)
explaining why he had a “sufficient reason” for not bringing the claims in previous
motions, pursuant to Escalona-Naranjo. As discussed in the above section on the

Barb Tadych : Yeah, she left.
Steven Avery: Yeah.
Barb Tadych : Yeah.
Steven Avery: Well, he didn’t testify for [sic] that.
Barb Tadych : [sighs]

The second piece of evidence is an October 2017 posting on Barb Tadych’s
Facebook page. Avery identifies the full relevant portion of the posting as
follows:

Barb Tadych: Well I have your answer for all of you
that was wondering, just got off the
phone with Bobby and I asked him and
he told me that: He seen her
[presumably, Halbach] pull in but that
was it because he left to go hunting then.
He said that is the truth.
[Commenter
or Facebook
friend]: so he never seen her walk towards
steven home
Barb Tadych: No.

35
No. 2017AP2288-CR

June 2017 motion, we are willing to give Avery the benefit of the doubt, where
possible, as to why he did not raise certain claims in 2013 or on direct appeal. But
we cannot ignore the law, and thus we cannot simply determine whether the merits
of his motion-to-reconsider claims warrant an evidentiary hearing, where the only
(narrow) question before us is whether the circuit court erroneously exercised its
discretion in not reconsidering the June 2017 motion on the basis of purported new
evidence contained within those claims.21

¶61 We conclude that the circuit court did not erroneously exercise its
discretion in denying this motion. The court noted that Avery provided no
explanation for filing the June 2017 motion while “considerable investigation was
still being conducted by the defense”:

Knowing that not all the facts were … ready for
presentation to the court, and with no deadline for filing his
motion set by the court or statute, the defendant proceeded
to file the motion prematurely....

The motion was pending before this court for a few months
before the court issued its ruling. During that period, the
defendant did not ask the court to stay its ruling pending
the conclusion of testing, request time to supplement the
motion or take any other action requesting that the court
delay its final decision in this matter. The motion was
submitted to this court and the court ruled on the motion.

21
Although the merits of these claims are not properly before us, we have reviewed them
in our broader review of this appeal. We note that the evidentiary basis for some of these claims
is lacking. For example, one claim is based on Avery’s assertion that Ryan Hillegas, Halbach’s
ex-boyfriend, later possessed a day planner that was in her car on the day of her death. The
evidence Avery submits, however, does not and cannot reasonably be construed to support this
conclusion. Moreover, other claims do not appear on their face to entitle Avery to a hearing. For
example, one claim, as far as we can tell, is based on a recreation of what Halbach’s movements
would have been had she driven away from Avery’s property on the date of her death. From this
experiment—which is unsupported by any explanation as to how Avery might prove the
underlying hypothetical scenario, that Halbach did in fact leave—Avery seeks to implicate Bobby
Dassey and Scott Tadych, his brother-in-law, in Halbach’s murder.

36
No. 2017AP2288-CR

This explanation is reasonable and sound, and represents an appropriate exercise
of discretion.

MOTION #4: JULY 2018 SUPPLEMENTAL MOTION

¶62 Avery appealed from the circuit court’s October 2017 and November
2017 orders denying his June 2017 motion and his motions to vacate and
reconsider, respectively. In May 2018, Avery moved this court directly “to
supplement the Record on Appeal with a CD disclosed to Defendant for the First
time on April 17, 2018.” Avery asserted that supplementation of the appellate
record was appropriate because the contents of the CD related to claims already
presented to the circuit court. We stated that this assertion “misses the point,
which is that we are not a fact-finding court and cannot consider items not
presented to the circuit court.” We determined, however:

Based on the assertion that Avery recently received
previously withheld discovery or other new information,
we retain jurisdiction but remand this case to enable Avery
to file an appropriate supplemental postconviction motion
in the circuit court … within thirty days of the date of this
order. The circuit court shall hold proceedings on the
supplemental postconviction motion within sixty days after
the motion is filed.

¶63 In July 2018, Avery filed his motion to supplement (the July 2018
motion), alleging a Brady violation.22 Recall that, prior to trial, Avery
unsuccessfully moved to introduce third-party liability evidence, pursuant to State
v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). In his July 2018

22
The State points out that a motion already decided (i.e., the June 2017 motion) cannot
be “supplemented” and that, therefore, the July 2018 motion is a successive motion. Regardless,
this court has determined and ordered that the July 2018 motion (as well as the subsequent
March 2019 motion, or Motion #5) shall be treated as a supplement to the June 2017 motion.

37
No. 2017AP2288-CR

motion, Avery alleges that the State withheld significant evidence both favorable
to his Denny motion and relevant for impeachment purposes: a final investigative
report of Detective Mike Velie, saved on a CD (the Velie CD). Velie created the
report through forensic examination of the hard drive of a computer used by
Dassey, whom Avery identifies as a possible Denny suspect. The Velie CD
contains “thousands of images” of violent pornography that, Avery argues, “reveal
a propensity for sexual violence” by Dassey (Avery elsewhere attempts to explain
why, of several people who used the computer, only Dassey could have
downloaded these images). The CD also contains “a timeline” that purportedly
“impeaches [Dassey’s] trial testimony” and “criteria, word searches, registry,
recovered pornography, internet history, windows registry, and all MSN
messages.” According to Avery, he did not receive the Velie CD until April 2018.

¶64 The circuit court determined that there was no Brady violation
because there was no evidence suppressed. We agree.23 It is undisputed that the
computer was examined and its contents copied to seven DVDs. It is undisputed
that Avery’s counsel received these seven DVDs prior to trial. Finally, it is
undisputed that, with limited and irrelevant exception,24 the Velie CD does not

23
As this claim was to be treated as a supplemental motion, pursuant to this court’s
order, Avery was not required to allege a “sufficient reason” under Escalona-Naranjo for not
raising the claim in his June 2017 motion. We assume without deciding that Avery had a
sufficient reason for not raising this claim in his 2013 motion or on direct appeal, based on the
purported unavailability of the evidence.
24
Velie attests:

The only information on the CD titled “Dassey computer, Final
Report, Investigative Copy” that is not contained in the 7 DVDs
would be the typical administrative and procedural files, folders,
and techniques routinely used by a digital forensic examiner
during a forensic examination of digital evidence.

(continued)

38
No. 2017AP2288-CR

contain any additional information than what is on the seven DVDs.
Consequently, the Velie CD is not suppressed evidence but merely an
investigative summary of evidence provided to Avery.

¶65 Avery appears to acknowledge these facts on appeal but argues that
he should have had access to information derived from Velie’s “unique word
searches,” pornographic images “refined” for relevancy, and the like. This is not
the law: Brady on its terms applies to favorable and material suppressed evidence,
and Avery has presented no authority extending this principle to the prosecution’s
withholding of secondary compilations or analyses of such. See United States v.
McGuinness, 764 F. Supp. 888, 896 (S.D.N.Y. 1991) (“Brady applies only to
facts that are not already known to the defendant. The government need not
facilitate the compilation of exculpatory material that, with some industry, defense
counsel could marshall on their own.” (citations omitted)).

Avery’s computer expert attests that Avery did not receive “critical information” about how Velie
analyzed the computer but does not conclude that the Velie CD contains additional information
not provided to Avery:

In my opinion, based upon a reasonable degree of certainty in the
field of computer forensic science, the CD contains information
and files extracted from the 7 DVDs that, in Detective Velie’s
opinion, were relevant to the investigation of Ms. Halbach’s
murder.

While the information contained on the CDs is derived from the
forensic image contained across the DVDs, trial defense counsel
was not provided critical information including the criteria used
by Detective Velie in performing his forensic computer
examination as well as the results of that examination.

(Emphasis added.)

39
No. 2017AP2288-CR

¶66 Avery raises two related arguments concerning the disclosure of the
DVDs themselves. He argues that the State deliberately misled him about the
importance of the DVDs by stating in an email that they “did not include much of
evidentiary value.” Even if this statement mischaracterized the evidence,
however, an off-the-cuff description of disclosed evidence cannot form the basis
for a Brady violation. Avery further argues that he was only provided the DVDs
approximately one month before his Denny hearing, leaving him “completely
impaired” in his ability to introduce relevant evidence in that proceeding. But this
argument properly concerns alleged ineffective assistance of trial counsel (see
below), because such conclusory statements do not adequately explain why trial
counsel could not have analyzed the DVDs in time for the motion hearing, sought
to postpone the hearing, or taken any number of other steps to effectively leverage
this evidence.

¶67 In the July 2018 motion, Avery does indeed argue that trial counsel
was ineffective for failing to forensically examine the seven DVDs prior to trial.
He does so summarily, however, and in a manner that leaves us unable to
meaningfully analyze this claim. Regarding potential use of this evidence in his
Denny motion, Avery does not address the prejudice prong of the Strickland test,
which, in our view, encompasses at least two key inquiries. To admit evidence at
trial that Dassey could have killed Halbach, Avery would have had to provide
some evidence at the pretrial Denny hearing directly connecting Dassey to the
crime. See State v. Scheidell, 227 Wis. 2d 285, 296, 595 N.W.2d 661 (1999)
(evidence that another party committed the crime may be admissible pursuant to
Denny if the defendant can show: (1) the third party’s motive, (2) the third party’s
opportunity to commit the crime, and (3) some evidence directly connecting the
third party to the crime). That Dassey possibly possessed violent pornographic

40
No. 2017AP2288-CR

images might have conceivably satisfied a separate requirement, motive, but is
insufficient in and of itself to allow admission of third-party liability evidence.25
See id. Avery failed to meet the “direct connection” requirement in his original
Denny motion and has not presented additional evidence on this point in Motion
#4. Thus, even assuming trial counsel was deficient in not analyzing the DVDs,
Avery cannot demonstrate a reasonable probability of a different outcome at the
Denny hearing or at trial.26 See Strickland, 466 U.S. at 694.

¶68 Regarding the use of this evidence for impeachment purposes, even
accepting that the CD contains “a timeline that impeaches [Dassey’s] trial
testimony” (we are skeptical of this point, see note 25), Avery does not explain
how impeaching Dassey about his use of the computer would have changed the

25
Although only tangentially relevant to our decision, we note that Avery’s counsel
misrepresented some key facts underlying this claim in the motion to the circuit court and
briefing to this court. Avery asserts that only Dassey could have downloaded the images, created
folders containing photographs of Halbach, and “search[ed] for key terms relevant to the
murder.” He states that Dassey “was the only individual at home” when this computer activity
took place, but references for support only the affidavit of his computer expert, who does not and
cannot opine on Dassey’s schedule, and a sheriff’s department interview with Dassey containing
none of this information. Avery also characterizes the pornographic images as “bear[ing] a
striking resemblance to [Halbach] and to the nature of the crime committed against her.” As far
as we can tell, there is no support for this conclusion in the evidence on record. That Avery
misrepresented the facts is immaterial to deciding his Brady and ineffectiveness claims. We
point them out because of the high-profile nature of this case, the greater possibility that
interested members of the public will read the briefing and motions, and the resulting need, where
misrepresentations are particularly egregious, to note where Avery’s arguments wholly stray from
the facts.
26
As discussed below, we are not addressing Avery’s most recent filing to this court (see
our discussion of Motion #6), which seeks to directly connect Dassey to Halbach’s murder. If
Avery wishes to raise that claim, he will need to bring a new WIS. STAT. § 974.06 motion. That
motion would need to survive both Escalona-Naranjo scrutiny and be found to have merit—in
which case, the evidence presented might supply the missing “direct connection.” In that event,
the Velie CD evidence might become relevant to showing Dassey’s motive, and might bear on
whether Dassey is, or should have been, a viable Denny suspect. We express no opinion on the
merit of any such § 974.06 motion, as all such issues would be for the circuit court to decide in
the first instance.

41
No. 2017AP2288-CR

outcome of the trial. At most, the jury would have disbelieved Dassey’s testimony
that, on the day Halbach last visited the Avery property: he saw Halbach walk
towards Avery’s trailer, he did not see her leave the property, Halbach’s RAV4
was in the driveway when he left to go hunting, and the RAV4 was gone when he
returned several hours later (Avery identifies these as the key pieces of testimony).
Certainly, this testimony bolstered the State’s theory that Halbach visited Avery
on that day and did not leave the Avery property thereafter, but absent this
testimony, the State still possessed significant forensic (and other) evidence
implicating Avery in a crime committed on his property. Without any showing or
argument as to why the impeachment of Dassey would have undermined the
cumulative effect of the other evidence, we cannot conclude that the trial’s
outcome would have been different. We conclude that the circuit court did not err
in denying the July 2018 motion without a hearing.

MOTION #5: MARCH 2019 SUPPLEMENTAL MOTION

¶69 In January 2019, Avery again moved this court directly to stay the
appeal and remand for the circuit court’s consideration of specific claims relating
to the State’s 2011 release to Halbach’s family of suspected human bone
fragments. We determined that, “given the specific circumstances of this case,”
we would stay the appeal and remand, pursuant to WIS. STAT. § 808.075(5), for
action on this issue. We again ordered remand to the circuit court to permit Avery
to pursue a supplemental postconviction motion on specific claims, and we
directed the court to conduct any necessary proceedings. The circuit court denied
the motion without a hearing.

¶70 The gist of Motion #5 is that the State released to Halbach’s family
suspected human bone fragments recovered from the Manitowoc County gravel

42
No. 2017AP2288-CR

pit, thereby violating: (1) a circuit court order; (2) WIS. STAT. § 968.205,
requiring the state to preserve certain biological material evidence connected to a
criminal conviction; and (3) Avery’s constitutional rights. As a WIS. STAT.
§ 974.06 motion may raise only jurisdictional, constitutional, and like claims, we
consider only the third argument. See § 974.06(1); Balliette, 336 Wis. 2d 358,
¶34; State v. Carter, 131 Wis. 2d 69, 81-82, 389 N.W.2d 1 (1986).

¶71 Avery alleges that, in 2011, the State improperly released to
Halbach’s family bone fragments from the gravel pit, which Avery wished to test
to determine if they contained Halbach’s DNA and might thereby indicate that
Halbach was not killed on Avery’s property. Avery argues that “[t]he State, by its
actions in returning [the] bones … has implicitly admitted that the bones were not
only human but that they belonged to Ms. Halbach.” Avery frames this as a
violation of Arizona v. Youngblood, 488 U.S. 51, 57-58 (1998), under which a
defendant’s due process rights are violated where the state either (1) fails to
preserve “apparently exculpatory” evidence or (2) acts in bad faith by failing to
present “potentially exculpatory” evidence. See State v. Greenwold, 189 Wis. 2d
59, 67-68, 525 N.W.2d 294 (Ct. App. 1994).

¶72 Avery represents that he was not aware, and could not reasonably
have been aware, of the release of the bones until after he filed his fourth motion.
We will assume, therefore, that this claim is not procedurally barred under
Escalona-Naranjo.

43
No. 2017AP2288-CR

¶73 The State argues that the Youngblood analysis only properly applies
to the destruction of pretrial evidence. We agree generally but need not explore
this point, because Avery’s claim fails on its own terms.27

¶74 The premise of Avery’s argument is that the State released to
Halbach’s family evidence that was either apparently or potentially exculpatory:
bone fragments from the gravel pit that may have been Halbach’s. This evidence,
when first collected, was labeled as containing some human bone fragments. At
trial, however, the undisputed testimony of the State’s forensic anthropologist was
that, on further analysis, the bone fragments could not be definitively identified as
human, much less as belonging to Halbach. On this record, therefore, this
evidence is not apparently exculpatory: it does not indicate that another person
killed Halbach. See Youngblood, 488 U.S. at 56 n.* (evidence is not “apparently
exculpatory” where those having custody over it did not know of its exculpatory

27
Youngblood and progeny concern whether the destruction of pretrial evidence violates
a defendant’s due process right to a fair trial, the remedy being dismissal of charges. See Arizona
v. Youngblood, 488 U.S. 51, 54-58 (1998); State v. Greenwold, 189 Wis. 2d 59, 65-69, 525
N.W.2d 294 (Ct. App. 1994). We recognize that State v. Parker, 2002 WI App 159, ¶¶13-14,
256 Wis. 2d 154, 647 N.W.2d 430, somewhat summarily states, “We see no reason why this line
of cases [addressing the pretrial destruction of evidence] should not apply to the situation at
hand”—that situation being the destruction of evidence posttrial but before the direct appeal was
concluded. As there the defendant’s argument was merely that the destruction of evidence
deprived him of his right to appeal and the right to effective assistance of appellate counsel, it
appears that the Parker court was simply noting a potential constitutional violation separate and
apart from any Youngblood violation. Parker, 256 Wis. 2d 154, ¶4. We do not readily perceive
how Youngblood itself—concerning the right to a fair trial and dismissal of charges as a potential
remedy—applies to a claim brought on a collateral attack. We agree with the State that District
Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52, 67-72 (2009), supports
this conclusion; there the United States Supreme Court found that respondent did not have the
same due process right in the postconviction context to access evidence in control of the state.
See Reid v. State, 984 N.E.2d 1264, 1267 (Ind. Ct. App. 2013) (“Osborne … indicates that an
individual does not have a right under the Due Process Clause to access lost or destroyed
evidence during post-conviction proceedings.” (citation omitted)). Because Avery has not
alleged a Youngblood violation, we need not delve more fully into this point.

44
No. 2017AP2288-CR

value and the evidence “was simply an avenue of investigation that might have led
in any number of directions”).

¶75 Nor can Avery establish that this evidence is potentially exculpatory,
because even assuming that these bone fragments are Halbach’s, Avery does not
explain the significance of this fact. The apparent thrust of Avery’s claim is that,
if Halbach’s bones were found in the gravel pit, then she was killed by someone
else. But as Avery never explains why he himself would have been unable to
dispose of Halbach’s remains in the gravel pit, this line of reasoning is wholly
speculative. Moreover, Avery cannot show bad faith, meaning “(1) the officers
were aware of the potentially exculpatory value or usefulness of the evidence they
failed to preserve; and (2) the officers acted with official animus or made a
conscious effort to suppress exculpatory evidence.” See State v. Luedtke, 2015
WI 42, ¶46, 362 Wis. 2d 1, 863 N.W.2d 592 (citation omitted). The record
reflects only that the State released bone fragments of indeterminate origin after
Avery’s direct appeal was fully litigated, when there appeared no direct or
immediate need to preserve this evidence. And contrary to Avery’s argument, the
very fact that the State released the bones does not mean that these are Halbach’s
or that the State acted in bad faith to “destroy” this evidence. The Halbach family
requested these bone fragments for purposes of its own—likely for closure—but
that does not vest these fragments with evidentiary significance.28

28
Avery suggests that the State also acted in bad faith in 2018, during the postconviction
process, by actively misleading him about whether it still possessed the bone fragments. The
point at which to measure the State’s bad faith, however, is when it allegedly destroyed the
evidence—here, in 2011, when it released the bone fragments to Halbach’s family. See State v.
Luedtke, 2015 WI 42, ¶41, 362 Wis. 2d 1, 863 N.W.2d 592 (defendant must show that “the State
acted in bad faith by destroying evidence that was potentially exculpatory” (emphasis added;
citations omitted)).

45
No. 2017AP2288-CR

MOTION #6: APRIL 2021 MOTION TO STAY AND REMAND

¶76 On November 9, 2020, we notified the parties that this case had been
submitted to the court for decision on briefs. On April 12, 2021, Avery filed
another motion with this court to stay his appeal and remand for evaluation of a
new claim. This claim concerns an alleged Brady violation, the factual basis for
which Avery purportedly obtained on April 11, 2021. Specifically, the claim is
based on the affidavit of Thomas Sowinski, a Manitowoc motor route driver who
attests that, days after Halbach’s death, while on his paper route in the early
morning hours, he spotted a shirtless Dassey and an unidentified older man
pushing Halbach’s vehicle down Avery Road towards the junkyard. Sowinski
further attests that, after he delivered the paper, Dassey attempted to block his exit,
causing him to swerve and drive into a shallow ditch. Sowinski claimed to have
called the Manitowoc sheriff’s office later that day to report what he had seen but
was told they “already know who did it.” He also claims to have attempted to
contact Avery’s trial attorneys after Season 1 of Making a Murderer, but never
heard back from them.

¶77 When Avery filed this motion, we had already twice stayed his
appeal, each time because he asserted that the new claims related to those
previously litigated and that it would be most expeditious to resolve them as part
of the instant appeal. By the time Avery filed this new motion, however, we had
already evaluated the legal and factual bases for claims already raised. We
therefore were, and are, in the position to conclude that this newly raised Brady
claim bears little or no relation to those claims already before us. This is, instead,
a distinct issue that the circuit court should resolve on a standalone basis through a
new WIS. STAT. § 974.06 motion.

46
No. 2017AP2288-CR

¶78 Moreover, Avery’s latest motion arrived while our decision on his
appeal was forthcoming. It would be an inefficient use of court resources to now,
and once again, delay this appeal’s resolution. We appreciate that Avery likely
wishes us to consider this new Brady claim in the context of claims previously
raised, but we must weigh that implicit consideration against those discussed
above. Simply put, Avery’s appeal cannot continue indefinitely. Accordingly,
this decision operates as an order denying Avery’s April 12, 2021 motion to stay
and remand. If Avery wishes to raise this claim, he must file a new WIS. STAT.
§ 974.06 motion with the circuit court. Pursuant to Escalona-Naranjo, Avery will
need to demonstrate why he could not have previously raised this claim, including
in his June 2017 motion, before the merits can be reached.

CONCLUSION

¶79 Avery raises a variety of alternative theories about who killed
Halbach and how, but as the State correctly notes, a WIS. STAT. § 974.06 motion is
not a vehicle to retry a case to a jury. A criminal defendant is constitutionally
entitled as of right to a jury trial and, if convicted, a direct appeal. If he or she
later seeks to collaterally attack the conviction on constitutional or jurisdictional
grounds, a § 974.06 motion is appropriate. But key to any § 974.06 motion are
sufficient, nonconclusory showings both as to why the issue was not raised in an
earlier postconviction proceeding and why the claim has facial merit. These
requirements are not optional and cannot be met through broad conclusions or by
misstating evidence.

¶80 We express no opinion about who committed this crime: the jury
has decided this question, and our review is confined to whether the claims before
us entitle Avery to an evidentiary hearing. We conclude that the circuit court did

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No. 2017AP2288-CR

not erroneously exercise its discretion in denying hearings on Motions #1, #4, and
#5; in not vacating its order on Motion #1; and in not reconsidering its ruling on
Motion #1. As for Motion #6 and the portion of Motion #3 (the motion to
reconsider) raising new claims, we leave open the possibility that Avery may raise
these claims in a new WIS. STAT. § 974.06 motion. We remind Avery, however,
that he will need to overcome the Escalona-Naranjo procedural bar on these
claims, which includes providing a sufficient reason for not raising them in his
June 2017 motion. Moreover, Avery will need to satisfy the previously discussed
specificity requirements before such claims may proceed to a hearing. See John
Allen, 274 Wis. 2d 568, ¶¶2, 23.

By the Court.—Orders affirmed.

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

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