State v. Howard E. Grady ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 10, 2023
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. 2021AP1179 Cir. Ct. No. 2014CF3988
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
HOWARD E. GRADY,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
FREDERICK C. ROSA, Judge. Affirmed.
Before Brash, C.J., Dugan and White, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1179
¶1 PER CURIAM. Howard E. Grady, pro se, appeals from an order of
the circuit court denying his motion for postconviction relief, without a hearing.
On appeal, Grady argues that trial counsel was ineffective because (1) he failed to
inspect a bedsheet and have it admitted into evidence and (2) he failed to object to
the charge of substantial battery prior to trial. Relatedly, he argues that
postconviction counsel was also ineffective for failing to raise these issues of trial
counsel’s ineffectiveness in his prior appeal. Grady further argues that
postconviction counsel was also ineffective for failing to timely file a notice of
appeal and then for failing to file a petition for review. We conclude that Grady’s
claims are barred, and for the reasons set forth below, we affirm.
BACKGROUND
¶2 Grady was charged with one count of aggravated battery and one
count of substantial battery, both as a repeat offender, as acts of domestic violence,
and with use of a dangerous weapon, for an incident in September 2014 in which
he repeatedly hit his girlfriend in the head with a hammer after she refused to give
him money to buy drugs. Following a jury trial, Grady was found guilty of both
counts. At sentencing, the State moved to dismiss count two—substantial
battery—because it was a lesser-included offense of count one. The circuit court
granted the motion and dismissed the charge for substantial battery. The court
then sentenced Grady to twelve years of initial confinement and three years of
extended supervision for the count of aggravated battery, with the sentence to be
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No. 2021AP1179
served consecutive to another sentence he was already serving for a burglary
conviction.1
¶3 In 2016, Grady filed a postconviction motion seeking a new trial on
two grounds: (1) that his convictions for both aggravated battery and substantial
battery violated double jeopardy, that dismissal of the substantial battery charge
was the wrong remedy, and that the correct remedy was a new trial; and (2) that a
note from the jury was not in the record because it was lost, which violated WIS.
STAT. § 805.13(1) (2019-20).2 In the alternative, he sought sentence modification,
alleging that the circuit court violated its statutory obligations at the time of
sentencing by failing to consider probation. The circuit court denied Grady’s
motion, and we affirmed in State v. Grady, No. 2017AP135-CR, unpublished
slip op. (WI App May 30, 2018).3
¶4 Grady, proceeding pro se, filed a petition for a writ of habeas corpus
with our supreme court in which he argued that postconviction counsel was
ineffective for failing to file a petition for review. After receiving a response from
Grady’s counsel, our supreme court denied Grady’s petition for a writ of habeas
corpus and concluded that postconviction counsel was not ineffective.
¶5 In 2021, proceeding pro se, Grady filed a motion for postconviction
relief pursuant to WIS. STAT. § 974.06. In his motion, he argued that he was
1
The Honorable Rebecca F. Dallet presided over Grady’s trial and sentencing prior to
her election to the Wisconsin Supreme Court.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
The Honorable Janet C. Protasiewicz, as the successor court, denied Grady’s first
3
postconviction motion.
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No. 2021AP1179
entitled to a new trial because trial counsel failed to inspect a bedsheet and move
to have the bedsheet admitted into evidence,4 as well as for trial counsel’s failure
to object to the substantial battery charge prior to trial. He also argued that
postconviction counsel was ineffective for failing to raise these claims in the
previous postconviction proceedings, and he further argued that postconviction
counsel was ineffective for failing to file a timely notice of appeal and a petition
for review. The circuit court denied his motion without a hearing, and Grady
appeals.5
DISCUSSION
¶6 On appeal, Grady raises the same arguments that trial counsel was
ineffective for failing to inspect a bedsheet and admit it into evidence and for
failing to object to the charge of substantial battery prior to trial. He also argues
that postconviction counsel was ineffective for failing to raise these claims in the
previous postconviction proceedings. He further argues that postconviction
counsel was ineffective for failing to timely file a notice of appeal and failing to
file a petition for review.6
4
We observe that the bedsheet itself was not admitted into evidence at the trial.
However, there was testimony at Grady’s trial about blood spattered on the bedsheet, as well as
pictures of the bedsheet that were admitted at the trial.
5
The Honorable Frederick C. Rosa, also as the successor court, denied Grady’s
postconviction motion that underlies his current appeal.
6
In this regard, we note that Grady’s brief is at best difficult to follow, and we adopt the
State’s framing of the issues on appeal. We further observe that the circuit court adopted a
similar construction of Grady’s arguments below. To the extent that Grady has raised claims that
we have not specifically addressed, we reject them as undeveloped. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
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No. 2021AP1179
¶7 We reject Grady’s arguments, and we conclude that his claims are
procedurally barred.7 We address each argument in turn.
I. Ineffective Assistance of Trial Counsel
¶8 Grady argues that trial counsel was ineffective and that
postconviction counsel was ineffective for failing to raise claims of trial counsel’s
ineffectiveness in the previous postconviction proceedings. We conclude that
Grady’s claims are barred because he has failed to provide a sufficient reason for
failing to bring his claims earlier and he has failed to demonstrate that the claims
he now raises are currently stronger than the ones postconviction counsel
originally pursued.
¶9 “All grounds for relief available to a person under [WIS. STAT.
§ 974.06] must be raised in his or her original, supplemental or amended motion.”
Sec. 974.06(4). Absent a showing of a sufficient reason, claims that a defendant
could have raised earlier but did not are barred from being raised in a subsequent
postconviction motion filed under § 974.06. State v. Escalona-Naranjo, 185
Wis. 2d 168, 185-86, 517 N.W.2d 157 (1994). “Whether a WIS. STAT. § 974.06
motion alleges a sufficient reason for failing to bring available claims earlier is a
question of law subject to de novo review.” State v. Romero-Georgana, 2014 WI
83, ¶30, 360 Wis. 2d 522, 849 N.W.2d 668 (emphasis added).
7
The State alternatively argues that the record conclusively shows that Grady is not
entitled to relief. As a result of our conclusion, we need not address the State’s alternative
argument. See Walgreen Co. v. City of Madison, 2008 WI 80, ¶2, 311 Wis. 2d 158, 752 N.W.2d
687 (noting that when one issue is dispositive, the other issues raised by the parties need not be
addressed).
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No. 2021AP1179
¶10 “In some instances, ineffective assistance of postconviction counsel
may be a sufficient reason for failing to raise an available claim in an earlier
motion or on direct appeal.” Id., ¶36. Such an instance also requires a showing
that the current claims the defendant wishes to bring “are clearly stronger than the
claims postconviction counsel actually brought.” Id., ¶4. However, “if the
defendant fails to allege why and how his postconviction counsel was
constitutionally ineffective—that is, if the defendant asserts a mere conclusory
allegation that his counsel was ineffective—his ‘reason’ is not sufficient.” Id.,
¶36.
¶11 In this case, we conclude that Grady has failed to provide a sufficient
reason why he did not raise his claim of ineffective assistance of trial counsel in
his first postconviction motion and appeal. At best, Grady provides nothing but
conclusory statements that postconviction counsel was ineffective for failing to
raise the arguments that Grady now makes. “We will not assume ineffective
assistance from a conclusory assertion; [Grady] must say why the claim he wanted
raised was clearly stronger than the claims actually raised. His motion is devoid
of any such explanation.” See id., ¶62. Consequently, Grady has failed to provide
a sufficient reason for failing to bring his claims earlier, and Grady is barred from
now bringing his claims of ineffective assistance of trial counsel and
postconviction counsel related to the bedsheet and charge of substantial battery.8
See Escalona-Naranjo, 185 Wis. 2d at 185-86.
8
Additionally, as the State notes, Grady’s claim of ineffective assistance of counsel
related to trial counsel’s failure to object to the charge of substantial battery could be construed as
a repackaging of Grady’s double jeopardy claim. This claim was previously litigated and
rejected. “A matter once litigated may not be relitigated in a subsequent postconviction
proceeding no matter how artfully the defendant may rephrase the issue.” State v. Witkowski,
163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991).
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No. 2021AP1179
II. Ineffective Assistance During Appellate Proceedings
¶12 Grady further argues that postconviction counsel was ineffective for
failing to timely file a notice of appeal and then for failing to file a petition for
review. In response, citing to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540(1992), the State argues that Grady failed to bring his claims in the proper
forum—the appellate court—given that Grady’s arguments are premised on
counsel’s performance in appellate court.
¶13 While we agree with the State that a Knight petition would have
been the proper vehicle to pursue these claims, the State also identifies that “[p]ro
se litigants are generally granted ‘a degree of leeway’ in recognition of the fact
that they are ordinarily unfamiliar with the procedural rules and substantive law
that might govern their appeal.” State ex rel. Wren v. Richardson, 2019 WI 110,
¶25, 389 Wis. 2d 516, 936 N.W.2d 587 (emphasis added; citation omitted). Thus,
we treat Grady’s arguments as properly raised in a Knight petition, and we address
Grady’s arguments that postconviction counsel was ineffective for his
performance during Grady’s prior appeal. However, even construing Grady’s
arguments as properly raised in a Knight petition, we conclude that Grady has
failed to demonstrate that he is entitled to relief.
¶14 In regards to Grady’s argument that postconviction counsel failed to
timely file a notice of appeal, we conclude that Grady failed to show that he
suffered any prejudice from an alleged deficiency in counsel’s performance. See
State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334 (stating that
a claim of ineffective assistance of counsel requires a showing of deficient
performance and prejudice).
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No. 2021AP1179
¶15 As Grady recognizes, the deadline to file a notice of appeal was
extended, and Grady pursued his prior appeal without issue. Prejudice occurs
when counsel’s error is of such magnitude that there is a “reasonable probability”
that but for the error the outcome would have been different. See State v.
Erickson, 227 Wis. 2d 758, 769, 596 N.W.2d 749 (1999). However, the outcome
in Grady’s case would not have been different had the timing of the notice of
appeal changed because, as noted, he in fact pursued his appeal without issue.
Thus, we conclude that his claim of ineffective assistance on this point fails.
¶16 As his argument relates to any ineffective assistance of counsel
related to the filing of a petition for review, we note that our supreme court
previously concluded that Grady’s counsel was not ineffective for failing to file a
petition for review and, therefore, denied Grady’s petition for a writ of habeas
corpus. The issue of postconviction counsel’s failure to file a petition for review
has, therefore, been previously litigated and is now barred. “A matter once
litigated may not be relitigated in a subsequent postconviction proceeding no
matter how artfully the defendant may rephrase the issue.” State v. Witkowski,
163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991).
¶17 Accordingly, we affirm the circuit court’s order denying Grady’s
motion for postconviction relief, without a hearing.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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