State v. Casey J. Shelton ( 2024 )

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.
February 8, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP2084 Cir. Ct. No. 2007CF68
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
CASEY J. SHELTON,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Green County: FAUN MARIE PHILLIPSON, Judge. Affirmed.
Before Blanchard, Nashold, and Taylor, 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).
¶1 PER CURIAM. Following a jury trial, Casey Shelton was
convicted of reckless homicide in January 2009 in connection with the 2007 death
No. 2022AP2084
of his two-month-old son, Christopher. Shelton now appeals, pro se, a 2022
circuit court order denying his sixth and seventh motions for postconviction relief,
filed pursuant to WIS. STAT. § 974.06 (2021-22), in what is Shelton’s fourth appeal
to this court in this case.1 We conclude that all of his current claims are
procedurally barred by past appellate or postconviction proceedings in which
Shelton could have raised these claims or did raise them. See State v. Escalona-
Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) (claims that could have
been raised on a prior direct appeal or postconviction motion from a criminal
judgment of conviction cannot be the basis for a subsequent § 974.06 motion
unless the court determines there was sufficient reason for failing to raise the
claim in the earlier proceeding); State v. Witkowski, 163 Wis. 2d 985, 990, 473
N.W.2d 512 (Ct. App. 1991) (an appellant may not relitigate in a subsequent
postconviction proceeding a matter previously decided on appeal). In addition, we
conclude that he fails to show that this is the exceptional case meriting
discretionary reversal on appeal.
BACKGROUND
¶2 The following is a concise overview from a prior opinion of this
court:
Shelton was convicted by a jury of first-degree
reckless homicide of his two-month old son, Christopher.
On the evening of February 27, 2007, Shelton, who was
alone with Christopher and his twin brother, Charles, called
emergency services seeking medical assistance for
Christopher, who Shelton reported was having difficulty
breathing. Medical personnel were unable to resuscitate
Christopher and he was pronounced dead at approximately
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
No. 2022AP2084
7:30 p.m. Shelton explained that while he was in the
process of feeding Christopher, who had problems with
keeping food down and projectile vomiting, Christopher
started spitting up and then choking, and appeared to be
fighting for air. However, expert testimony indicated that
Christopher died as a result of a traumatic brain injury,
“essentially the rattling of the brain inside the head,” which
occurred close in time to Christopher’s death.
State v. Shelton, No. 2011AP52, unpublished slip op., ¶2 (WI App Nov. 15,
2012).
¶3 Following trial and while represented by counsel in October 2010,
Shelton sought postconviction relief, and the circuit court held an evidentiary
hearing consistent with State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.
App. 1979), and State v. Curtis, 218 Wis. 2d 550, 554, 555 n.3, 582 N.W.2d 409(Ct. App. 1998) (“assuming there are factual allegations which, if found to be true,
might warrant a finding of ineffective assistance of counsel, an evidentiary hearing
is a prerequisite to appellate review of an ineffective assistance of counsel issue”).
See Shelton, No. 2011AP52, ¶26. The circuit court denied the motion.2 Id., ¶5.
¶4 Still represented by counsel (“first postconviction counsel”), Shelton
pursued a direct appeal. We denied this appeal in November 2012, rejecting
Shelton’s arguments that: (1) the circuit court at trial erroneously exercised its
discretion in admitting evidence regarding Shelton’s past conduct toward
Christopher, his twin Charles, Amy Uptegraw (the infants’ mother), Uptegraw’s
adolescent son, and Uptegraw’s parents, including evidence that before
Christopher’s death Shelton had reacted angrily or violently when Christopher and
Charles cried or vomited; (2) Shelton received ineffective assistance of trial
2
The Hon. James R. Beer presided at trial and during the initial postconviction
proceedings. The Hon. Faun Marie Phillipson issued the rulings challenged in this appeal.
3
No. 2022AP2084
counsel when counsel failed to request a limiting jury instruction regarding other-
acts evidence and failed to raise a hearsay objection to the jury considering a
partially redacted videotaped recording of a statement that Uptegraw made to
police in April 2007 (our reasoning being that it was not “outside the wide range
of professionally competent assistance” for counsel to decide not to object,
following a strategy of exposing the jury to Uptegraw’s demeanor as reflected in
the recording, which contrasted with her demeanor on the witness stand); and
(3) Shelton should be granted a new trial in the interest of justice based the
presentation of inadmissible evidence. Id., ¶¶1, 8, 25-27. In one part of our
opinion, we explained that “the jury properly heard evidence that Shelton threw
[Christopher’s twin brother] to the ground” and that Shelton threatened Uptegraw
on the way to the hospital after Christopher was reported injured, which we
characterized as “very inculpatory evidence.” Id., ¶20.
¶5 In July 2013, Shelton, pro se, filed a second postconviction motion
pursuant to WIS. STAT. § 974.06.3 The circuit court denied the motion without
holding an evidentiary hearing, ruling that all of the issues Shelton raised had been
decided in this court’s prior opinion. Shelton, again pro se, appealed, and in May
2014, we summarily affirmed the circuit court’s denial of Shelton’s second
postconviction motion, which we identified as consisting of 14 arguments.4 See
3
Shelton did not have a constitutional right to counsel in proceedings that followed the
resolution of his direct appeal. There is no constitutional right to counsel on a collateral attack
and as a result the “vast majority” of WIS. STAT. § 974.06 motions are filed pro se. See State ex
rel. Wren v. Richardson, 2019 WI 110, ¶27 & n.21, 389 Wis. 2d 516, 936 N.W.2d 587.
4
We summarized the 14 arguments this way:
(continued)
4
No. 2022AP2084
State v. Shelton, No. 2013AP1817, unpublished slip op. and order (WI App
May 9, 2014). Our opinion rejected some of the 14 arguments based on
procedural bars and rejected others on the merits. Id.¶6 While his pro se second postconviction motion was pending in this
court, Shelton, pro se, filed in this court a petition for a writ of habeas corpus,
(1) trial counsel should have solicited testimony from two
witnesses who allegedly observed Amy Uptegraw and her
parents, Ron and Cindy Uptegraw, perpetuate physical and
verbal abuse on Amy’s children; (2) trial counsel should have
objected to demonstrative evidence in which an expert witness
used a doll to show potential ways [Christopher] could have been
injured; (3) trial counsel should have requested a change of
venue due to pretrial publicity; (4) trial counsel should have
moved to strike a number of jurors for cause; (5) trial counsel
should have moved to suppress autopsy photos and the death
certificate as unduly prejudicial, and raised a hearsay objection
to a videotaped recording of the statement [Uptegraw] made to
police; (6) trial counsel should have requested a cautionary
instruction regarding the limited use of other acts evidence;
(7) the prosecutor failed to turn over potentially exculpatory
evidence, including Shelton’s 911 call and hospital records that
contradicted testimony given by the State’s witnesses; (8) the
prosecutor elicited false testimony regarding the chain of custody
of [Christopher’s] clothing, as evidenced by the hospital records;
(9) the prosecutor offered personal opinions, vouched for
witnesses, and called for impermissible inferences from
character evidence during his closing argument; (10) the
admission of other acts evidence violated not only State
evidentiary rules (as argued on Shelton’s prior appeal), but also
federal rules and constitutional principles; (11) the circuit court
should have excluded evidence relating to prior injuries to
[Christopher]; (12) the evidence was insufficient to establish
Shelton’s guilt beyond a reasonable doubt because there was not
even certainty as to the exact cause of death, much less what
actions had led to it; (13) the lack of evidence beyond other acts
relieved the State of its burden of proof; and (14) the cumulative
effect of these errors deprived Shelton of his constitutional due
process rights.
State v. Shelton, No. 2013AP1817, unpublished slip op. and order (WI App May 9, 2014)
(footnote omitted).
5
No. 2022AP2084
consistent with State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992). In
this petition, Shelton alleged that his appellate counsel in the direct appeal was
constitutionally ineffective in failing to challenge in this court: the relevance of
other-acts evidence that Shelton had thrown Charles to the floor in reaction to
Charles spitting up; the admission of evidence about other injuries to Christopher,
on the theory that they were sustained during resuscitation efforts; and the
sufficiency of the evidence. State ex rel. Shelton v. Schwochert,
No. 2013AP2073-W, unpublished slip op. and order (WI App Dec. 10, 2013). In
December 2013, we denied Shelton’s habeas petition. Id. In that opinion, we
noted that appellate counsel had in fact challenged the admission of all evidence
related to Shelton’s alleged mistreatment of Christopher and Charles. Id. We also
stated that we had already explained in resolving the direct appeal that
the fact that [Christopher] suffered a fatal brain injury
while in the exclusive care of Shelton—coupled with
evidence that Shelton had a plausible motive for inflicting
violence on the child and that Shelton had threatened on the
way to the hospital to kill the family of [Christopher’s]
mother if she said anything—provided strong evidence that
Shelton had recklessly caused his son’s death.
Id. Our supreme court denied Shelton’s petition for review in June 2014. Shelton
v. Schwochert, 2014 WI 50, 354 Wis. 2d 864, 848 N.W.2d 860 (unpublished
order).
¶7 Against that backdrop, beginning in May 2015 Shelton filed the first
of two motions that are at issue in this appeal. Assisted by attorneys (“the second
postconviction counsel”), Shelton filed a second motion for a new trial pursuant to
WIS. STAT. § 974.06. After the circuit court granted several extensions of time to
the second postconviction counsel to allow them to gather additional evidence,
second postconviction counsel supplanted the May 2015 motion with an amended
6
No. 2022AP2084
version filed in May 2017 (“the 2017 motion”). In February 2022, with the 2017
motion still unresolved in the circuit court, different counsel (“third postconviction
counsel”) filed a supplemental motion for a new trial on Shelton’s behalf (“the
2022 motion”). After considering written and oral arguments by the parties, and
deeming there to be no need for an evidentiary hearing, the circuit court in
September 2022 denied both motions in a detailed, 22-page opinion. Shelton, pro
se, appeals.
DISCUSSION
¶8 We now summarize the legal standards creating the procedural bars
at issue and then address the 2017 and 2022 motions in turn.
I. Legal standards
¶9 In addition to the direct appeal process, prisoners may collaterally
attack their sentences based on alleged constitutional violations. See WIS. STAT.
§ 974.06(1)-(2). Under § 974.06(4), however, all such claims must be
“consolidate[d] … into one motion or appeal.” Escalona-Naranjo, 185 Wis. 2d at
178.5 Under this rule, all issues that were or could have been raised in such a
5
WISCONSIN STAT. § 974.06(4) provides in its entirety:
All grounds for relief available to a person under this
section must be raised in his or her 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.
7
No. 2022AP2084
motion or direct appeal are procedurally barred, unless the defendant provides
“sufficient reason” for not raising the issues in the earlier proceeding. Id. at 173,
185 (“constitutional claims which could have been raised on direct appeal or in a
[WIS. STAT. §] 974.02 motion cannot later be the basis for a [§] 974.06 motion”).
The procedural bar, including the “sufficient reason” requirement, creates
incentives for issues to be decided while memories are still fresh and witnesses
and records are still available, and also aims to limit abuses of the appellate
process. See id. at 185-86.
¶10 A claim brought under WIS. STAT. § 974.06 is also barred if it has
been finally adjudicated during a previous appeal. Escalona-Naranjo, 185
Wis. 2d at 181-82. “We need finality in our litigation.” Id. at 185. “A matter
once litigated may not be relitigated in a subsequent postconviction proceeding no
matter how artfully the defendant may rephrase the issue.” Witkowski, 163
Wis. 2d at 990.
¶11 We review de novo whether a claim under WIS. STAT. § 974.06 is
procedurally barred. State v. A. Allen, 2010 WI 89, ¶15, 328 Wis. 2d 1, 786
N.W.2d 124. Similarly, whether a defendant offered the circuit court a sufficient
reason to avoid the procedural bar is also an issue of law subject to de novo
review. State v. Kletzien, 2011 WI App 22, ¶16, 331 Wis. 2d 640, 794 N.W.2d
920. We determine the sufficiency of an offered reason to avoid the bar by
examining the four corners of the postconviction motion. See State v. J. Allen,
2004 WI 106, ¶¶9, 27, 274 Wis. 2d 568, 682 N.W.2d 433. Postconviction motions
contain sufficient and nonconclusory material facts when the motions set forth the
“five ‘w’s’ and one ‘h’; that is the who, what, where, when, why and how, that, if
true, entitle them to relief.” Id., ¶23.
8
No. 2022AP2084
¶12 “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.” State v. Romero-Georgana, 2014 WI 83, ¶36, 360
Wis. 2d 522, 849 N.W.2d 668. However, a defendant who represents himself or
herself in a proceeding, as Shelton did here in his July 2013 second postconviction
motion, “cannot thereafter complain that the quality of his own defense [in that
proceeding] amounted to a denial of ‘effective assistance of counsel.’” See
Faretta v. California, 422 U.S. 806, 834 n.46 (1975). Therefore, it is not a
sufficient reason for failing to raise an issue in a prior WIS. STAT. § 974.06 motion
that it would have been constitutionally ineffective for counsel, had there been
one, to fail to raise that issue.
II. The 2017 Motion
¶13 The 2017 motion filed by second postconviction counsel contained
three closely related arguments. Each was based on the medical evidence that was
introduced at his trial and the prospect of Shelton offering additional or different
newly discovered medical evidence at a new trial that: (1) trial counsel was
constitutionally ineffective in failing to collect and present to the jury “objective
medical evidence that substantially undermined the State’s theory” at trial that
Shelton caused a head injury to Christopher, resulting in Christopher’s death;
(2) new evidence “in the form of new medical and scientific research conducted
and published since trial” warrants a new trial; and (3) Shelton is entitled to a new
trial in the interest of justice because the real controversy, involving “the
mechanism and cause of Christopher’s death, was not fully tried.” Shelton
contended that trial counsel was constitutionally ineffective and that he is entitled
to a new trial based on the newly discovered medical evidence and in the interest
of justice. In support, Shelton alleged that trial counsel should have investigated
9
No. 2022AP2084
and made use of the following: “red flags in Christopher’s medical history” that
would have allowed the jury to understand that he was “seriously compromised”;
evidence that Christopher was deprived of sufficient oxygen on the day of his
death due to misplacement of an endotracheal intubation device by emergency
responders; autopsy evidence about aspirated formula, allegedly consistent with
Shelton’s version of events; and expert evidence to counter the potential effects on
the jury of the theory testified to by the forensic pathologist called by the State
that, contrary to Shelton’s theory, a bilateral subdural hemorrhage in Christopher’s
brain identified at the autopsy was not the cause of his death.
¶14 We first address the procedural bar issue regarding the 2017 motion
before we address the argument in the 2017 motion that we should reverse for a
new trial in the interest of justice.
A. WIS. STAT. § 974.06 Claims
¶15 The circuit court ruled in pertinent part that the 2017 motion must be
denied based on procedural bars because Shelton raised or could have raised the
issues in his prior post-conviction motions. We affirm this ruling on the ground
that, to the extent that Shelton’s prior direct appeal and postconviction motions did
not raise these issues, he could have raised them in the second postconviction
motion in July 2013 and he fails to identify a sufficient reason for not doing so.6
¶16 The substance of the 2017 motion itself strongly supports application
of the procedural bar. In the 2017 motion, Shelton strenuously argued that first
6
The 2017 motion makes reference to “postconviction counsel’s ineffectiveness,” but
the July 2013 motion was filed pro se, and therefore the sufficient reason cannot be based on
ineffective assistance of counsel.
10
No. 2022AP2084
postconviction counsel had available information in 2012 that should have caused
first postconviction counsel “to investigate the medical evidence that was
presented at trial” and “raise a claim of trial counsel’s ineffectiveness in presenting
evidence to rebut the State’s medical evidence.” According to the 2017 motion,
this included information available in 2012 “that the medical hypothesis
underlying the Shaken Baby Syndrome and Abusive Head Trauma diagnosis was
controversial,” and that “critical prenatal records were not in trial counsel’s files.”
¶17 The 2017 motion provides ample support for the proposition that the
medical evidence at issue was available by July 2013 when Shelton filed his pro se
second postconviction motion. The 2017 motion includes the following two
sources: what the 2017 motion describes as “widely cited meta-analysis” released
in 2009 that sought “to determine which clinical features are indicative of
inflicted, abusive head trauma in children and which are not”; and a 2011 article
that was, according to the 2017 motion, a “meta-analysis of 24 previously
published studies” seeking “to determine which clinical and radiographic
characteristics are associated with abusive head trauma and which are associated
with nonabusive head trauma.”7 In reference to these studies, the 2017 motion
asserts that medical testimony elicited by the prosecution at trial was “disproved
by subsequent meta-analysis.”
¶18 In addition, one expert who provided opinions that the second
postconviction counsel attached to the 2017 motion cited two relevant articles
published in 2011: one entitled, “Biomechanical evaluation of head kinematics
7
As the 2017 motion explains, a meta-analysis combines and synthesizes data from
multiple previously published studies.
11
No. 2022AP2084
during infant shaking versus pediatric activities of daily living,” and the other
entitled, “Pyloric stenosis as a cause of venous hypertensive syndrome mimicking
true shaken baby syndrome.”8
¶19 Further, the publicly available information in July 2013, when
Shelton filed the second postconviction motion, included State v. Edmunds, 2008
WI App 33, 308 Wis. 2d 374, 746 N.W.2d 590. In Edmunds, this court ordered a
new trial based on a claim of newly discovered evidence because evidence was
presented of what the court characterized as a “shift in mainstream medical
opinion” regarding shaken baby syndrome. Id., ¶23; see also id., ¶6 (describing
newly discovered evidence that consisted of six expert witnesses, whom the court
characterized as testifying that “there is now a significant debate in the medical
community” concerning the diagnosis or characterization of shaken baby
syndrome).
¶20 Related to Edmunds, also publicly available in July 2013 was
D. Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the
Criminal Courts, 87 WASH. U.L. REV. 1 (2009). This 2009 article focused
extensively but not exclusively on the Edmunds case. It included citations to
support the position that “scientific study has generated new explanations for the
8
One portion of the 2017 motion is devoted to the argument that “trial counsel’s failure
to consult with an expert regarding the significance of Christopher’s undiagnosed pyloric
stenosis” (a thickening of the opening between the stomach and small intestine that can cause
symptoms such as vomiting after feeding in infants) was constitutionally ineffective because
counsel could have shown that this condition “may have been the cause of the subdural
hematoma found at” Christopher’s autopsy. However, as the circuit court noted in denying the
2017 motion, the record establishes that “as far back as” June 2009 Shelton was aware of the
potential for the phenomenon of pyloric stenosis to be featured in a defense.
12
No. 2022AP2084
presence of subdural hematomas” in deceased infants. Id. at 17 & n.104.9 The
2009 article also summarized a Massachusetts prosecution in which, according to
the article, the prosecution’s theory of shaken baby syndrome was successfully
undermined by an alternative defense theory, based on newly discovered medical
evidence. See id. at 15 n.91. The defense theory was that “massive intracranial
bleeding, brain swelling, and a retinal hemorrhage” in an eight-month-old who had
died was not caused by violent shaking by the defendant, but instead “was caused
by a ‘re-bleed’ of a chronic brain clot resulting from an undetected injury.” Id.
Under this alternative theory, “the baby had a chronic blood clot which re-bled”
merely as a result of “‘rough’ handling by” the defendant. See id.
¶21 More generally, a number of the core points made in the 2009 article
are at the heart of the claims that Shelton raised in the 2017 motion. To cite just
one example, the 2017 motion argues, “Had trial counsel presented evidence that it
is common for there to be a lucid interval between the onset of the diffuse brain
injury and the collapse, the jury would not have necessarily tied the brain injury to
Mr. Shelton, even if they did believe the injury was due to abuse.” One subsection
9
For this proposition, the 2009 article cited the following authority from 2002, 2008, and
2009:
Marta C. Cohen & Irene Scheimberg, Evidence of Occurrence of
Intradural and Subdural Hemorrhage in the Perinatal and
Neonatal Period in the Context of Hypoxic Ischemic
Encephalopathy, 12 PEDIATRIC DEVELOPMENTAL PATHOLOGY
169 (2009); Julie Mack et al., Anatomy and Development of the
Meninges: Implications for Subdural Collections and CSF
Circulation, 39 PEDIATRIC RADIOLOGY 200 (2009) (on file with
author); Eva Lai Wah Fung et al., Unexplained Subdural
Hematoma in Young Children: Is it Always Child Abuse?,
44 PEDIATRICS INT’L 37 (2002); V.J. Rooks et al., Prevalence
and Evolution of Intracranial Hemorrhage in Asympotomatic
Term Infants, 29 AM. J. NEURORADIOLOGY 1082 (2008).
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No. 2022AP2084
of the 2009 article highlights a medical opinion that cast doubt on previously
given expert testimony that “foreclosed the possibility that prior accidental injury
caused an infant’s later symptoms,” based on “lucid interval studies” that “support
the notion of a lag time” between injury-causing events and the onset of
symptoms. See id. at 18-19.
¶22 In addition to all of this available information, as the 2017 motion
pointed out, in 2012
a team of leading legal scholars collaborated with medical
experts and published an article addressing the ongoing
debate regarding diagnoses of abusive head trauma.
Keith A. Findley et al., Shaken Baby Syndrome, Abusive
Head Trauma, And Actual Innocence: Getting it Right,
12 HOUS. J. HEALTH L. & POL’Y 209 (2012).[10]
¶23 Shelton’s pro se briefing in this appeal is sometimes difficult to
track. But between assertions and references in his current briefing and what is
stated in the 2017 motion, he offers only the following limited arguments to
support a determination that, to the extent his current claims are not procedurally
barred because they were already litigated in a prior appeal, he had sufficient
reason for not raising them in the second postconviction motion in 2013.
¶24 The 2017 motion asserts that, “[a]s a pro se petitioner, [Shelton]
lacked the ability and resources to obtain all the medical records and consult with
experts, which was necessary to rebut the State’s medical diagnosis of murder.”
In a similar vein, in his briefing on appeal, Shelton points out that he “is not a
10
The State belittles the merits of this 2012 article, in part on the ground that its lead
author was co-director of the organization of attorneys that would later represent Shelton when
the 2017 motion was filed. But for our purposes the point is not how correct or incorrect the 2012
article was in presenting any particular point of view or assertion. The point is that in July 2013
Shelton could have cited the 2012 article and its various references.
14
No. 2022AP2084
medical expert,” and asserts that it was not until he had the benefit of
representation by second postconviction counsel that he obtained “the resources
for the medical issues to get looked into appropriately and the facts of the
impeachment claims for various reasons [that] were yet to be exposed.”
¶25 But the 2017 motion fails to explain what particular lack of “ability”
or lack of “resources” Shelton labored under that prevented him from pursuing
issues in July 2013 that he himself asserted in the 2017 motion his attorney should
have pursued in the direct appeal. That is, the motion fails to show how Shelton
was hindered in obtaining relevant information through reasonable efforts at any
time before July 2013. More generally, these blanket assertions do not constitute a
sufficient reason for failing to pursue this defense in July 2013. See Romero-
Georgana, 360 Wis. 2d 522, ¶53 (“Since the [WIS. STAT.] § 974.06 motion does
not offer a sufficient reason for failing to bring the current claim in the second
postconviction motion, Romero-Georgana’s motion is barred under § 974.06(4)
and Escalona-Naranjo.”). Put differently, the circuit court was free to reject the
limited allegations in the 2017 motion on the sufficient-reason topic as conclusory
and insufficiently describing the “who, what, where, when, why, and how” of
Shelton’s lack of ability and resources to pursue the claims of the 2017 motion
when he prepared the 2013 motion. See J. Allen, 274 Wis. 2d 568, ¶23.
¶26 We assume without deciding that in another case a defendant might
be able to identify a sufficient reason based in part on the defendant’s particular
circumstances, which could include pro se status, if properly alleged and
supported with sufficient material and nonconclusory facts in a postconviction
motion. But, even with that assumption about the meaning of “sufficient reason”
in the context of the procedural bar, the motion here does not suggest that Shelton
actually made reasonable efforts to obtain and make use of information that were
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No. 2022AP2084
hindered in any way, or that his circumstances did not allow him to be exposed to
developments on the topic of alleged fatal head trauma to infants. It is true that
the medical evidence at issue here has complex aspects. Still, as the 2017 motion
strenuously argued, the sources cited above unambiguously and directly
challenged prosecutions based on allegations of abusive head trauma to infants.
Mere pro se status and vague references to inability and lack of resources cannot
be enough. Otherwise, the “sufficient reason” standard would swallow the
procedural bar established by WIS. STAT. § 974.06 as interpreted by our supreme
court—pro se defendants could file postconviction motions without end.
¶27 It is true that Shelton, in 2013, would have needed to mold the
general assertions made in legal reviews and medical journals into a set of
arguments reasonably tailored to this case. But he fails to direct us to allegations
in the 2017 motion explaining why he apparently did not, before filing his
postconviction motion in 2013, even attempt to seek to rely on the information
predating 2013 that, as his 2017 motion extensively cites, was available in the
ordinary sources that one would consult for developments in forensic science.
¶28 As the circuit court noted in denying the 2017 motion, while the
motion relies on some potential sources of medical evidence regarding the
mechanism of Christopher’s death that may not have been available at the time of
the jury trial, Shelton was well aware no later than the time of trial of the potential
for a post-conviction defense based in part on new medical evidence. This is
because the trial included, as the circuit court noted,
dueling medical experts and their opinions regarding cause
of death, Christopher’s difficult delivery…, the fact that
[Christopher] was premature and ‘biologically’ only one
and a half months old, cross-examination by defense
counsel of the State’s medical expert concerning hypoxia,
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No. 2022AP2084
anoxia and rib fractures, and evidence pertaining to Amy
Uptegraw’s reputation as a ‘liar.’[11]
For example, the forensic pathologist called as a witness by the prosecution at trial
testified that he could rule out non-abusive explanations of Christopher’s bilateral
subdural hematoma in part based on the view that “[t]he only way to get” that type
of hematoma “is by a head injury.” To the contrary, the defense expert testified
that the most likely cause of the bilateral subdural hemorrhage was damage to the
dural venous plexuses (the group of sinuses or blood channels that drains venous
blood circulating from the cranial cavity) rather than bridging vein ruptures (as the
result of head trauma). At minimum, Shelton knew from the nature of this debate
at trial that any newly developed insights or newly discovered evidence that
involved proof of a mechanism of brain injury or damage that differed from the
State’s theory of injury would be relevant to potential collateral attacks on the
judgment of conviction. Similarly, the circuit court also observed that Shelton
knew from his relationship with Uptegraw what her “lifestyle” was while she was
pregnant with the twins and about “the twins’ difficult delivery.” As the State
now points out, Uptegraw testified at trial that Shelton resided with her starting in
November 2006. Thus, to the extent the 2017 motion is based on medical
information about the pregnancy and Christopher’s birth, it undermines Shelton’s
position that he lacked awareness of this information in 2013.
¶29 Shelton suggests in his reply brief that this case presents the unusual
circumstance in which the procedural bar should not apply because it would have
been impossible for him to have raised these issues in July 2013. He asserts that
11
“Cerebral hypoxia occurs when your brain doesn’t get enough oxygen. A related
condition, anoxia, occurs when no oxygen reaches the brain.” Cerebral Hypoxia,
https://my.clevelandclinic.org/health/diseases/6025-cerebral-hypoxia (last visited Feb. 6, 2024).
17
No. 2022AP2084
his situation is akin to one in which a defendant seeking postconviction relief
demonstrates a need to obtain new forensic testing, such as a search for DNA, in
order to pursue a valid issue. He fails to support the analogy. Here, the 2017
motion does not explain why Shelton’s 2013 motion could not have cited any or
all of the sources laid out in the 2017 motion and, on that basis, could have
requested an evidentiary hearing to address those issues. This did not require new
forensic testing that he could not reasonably have obtained. Shelton’s reply brief
suggests that there were roadblocks preventing him from raising these issues in
2013, including the difficulty of consulting experts without the assistance of
counsel. However, the 2017 motion does not allege material facts and explain
with sufficient clarity what roadblocks existed to require an evidentiary hearing,
particularly given that Shelton was able to later obtain counsel who was able to
secure expert review of relevant medical records. For example, the 2017 motion
does not clearly specify whether Shelton in 2013 was unaware of the factual or the
legal basis for his current claims.
¶30 For all these same reasons, Shelton fails to set forth a sufficient
factual basis for failing to present in the second postconviction motion in 2013 the
medical evidence claim that he would raise in the 2017 motion.
¶31 Because the procedural bar applies to the 2017 motion, the circuit
court appropriately declined to hold an evidentiary hearing regarding the
allegations in the motion.
B. Interest of Justice
¶32 As noted, the 2017 motion also seeks reversal of Shelton’s judgment
of conviction by this court in the interest of justice. Our supreme court stated in
State v. Avery, 2013 WI 13, ¶38 n.17, 345 Wis. 2d 407, 826 N.W.2d 60, that
18
No. 2022AP2084
contrary to the apparent meaning of State v. G. Allen, 159 Wis. 2d 53, 464
N.W.2d 426 (Ct. App. 1990), we may reverse a criminal conviction in the interest
of justice on a motion made under WIS. STAT. § 974.06. See Avery, 345 Wis. 2d
407, ¶38 (“The supreme court and the court of appeals may set aside a conviction
through the use of our discretionary reversal powers, though the circuit court does
not have such discretionary powers.”); see also State v. Armstrong, 2005 WI 119,
¶113 & n.25, 283 Wis. 2d 639, 700 N.W.2d 98 (questioning the reasoning in
G. Allen although not overruling G. Allen). This is so, whether we reverse under
WIS. STAT. § 752.35, the discretionary reversal statute that applies to the court of
appeals, or under any inherent power that this court might have in this context.
Avery, 345 Wis. 2d 407, ¶38 n.17 (“The discretionary reversal power of this court
and the court of appeals is coterminous.”).
¶33 The court in Avery stated:
This court may grant a new trial in the interest of justice
(1) whenever “the real controversy has not been fully
tried,” or (2) whenever “it is probable that justice has for
any reason miscarried.” WIS. STAT. § 751.06[, the
discretionary reversal statute that applies to the supreme
court]. Cases where the real controversy has not been fully
tried have generally been limited to two situations:
(1) when the jury was erroneously denied the opportunity
to hear important evidence bearing on an important issue in
the case or (2) when the jury had before it evidence not
properly admitted that “so clouded” a crucial issue that it
may be fairly said that the real controversy was not tried.
[State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435(1996)].
Avery, 345 Wis. 2d 407, ¶38 n.18.
¶34 Shelton may intend to focus primarily on the “not been fully tried”
prong, under which a new trial is merited “if the jury was not given the
opportunity to hear and examine evidence that bears on a significant issue in the
19
No. 2022AP2084
case, even if this occurred because the evidence or testimony did not exist at the
time of trial.” State v. Maloney, 2006 WI 15, ¶14 n.4, 288 Wis. 2d 551, 709
N.W.2d 436 (citing Hicks, 202 Wis. 2d at 160-61). “[S]uch discretionary reversal
power is exercised only in ‘exceptional cases,’” only “‘infrequently and
judiciously.’” Avery, 345 Wis. 2d 407, ¶38 (quoted sources omitted).
¶35 Bearing these standards in mind, we cannot say that this is the
exceptional case, particularly in light of the non-medical evidence that we have
characterized in a prior appeal as “very inculpatory evidence,” see Shelton,
No. 2011AP52, ¶20. Shelton fails to come to grips with this evidence in his
current appeal. His argument is based in large part on the assertion that medical
testimony elicited from the forensic pathologist by the prosecution was, in
Shelton’s words, “later determined to be inconsistent with the facts.” But Shelton
fails to adequately support that assertion with citation to evidence presented in the
2017 motion. This is critical. As Shelton had to admit in the 2017 motion, there
was, in fact, competing expert testimony at trial, not one-sided testimony. As a
result and to satisfy Avery, he must now direct us to evidence bearing on a
significant issue that was not presented through that expert trial testimony. To that
end, his briefing on appeal makes only passing references to evidence, either from
trial or alleged in the 2017 motion, bearing on the issue of whether Christopher
could have died as a result of aspiration or an intubation failure. Shelton does not
now develop supported arguments based on trial evidence or postconviction
motion allegations.
¶36 Shelton’s argument is more developed on the topic of whether new
medical evidence could help him undermine the concession made by the defense
expert at trial that the volume of the subdural hemorrhage in the bilateral
hematoma in Christopher’s brain was not sufficient to cause brain damage and
20
No. 2022AP2084
therefore not the cause of Christopher’s death. Shelton’s new argument, supported
by new medical evidence, would be that the volume of the hemorrhage was
sufficient to cause Christopher’s death and that this volume accumulated over time
through a mechanism that would not inculpate Shelton, because it was caused by
an injury weeks before Christopher died. More specifically, what may be
Shelton’s strongest argument focuses on opinions provided by a neuropathologist,
newly retained for purposes of the 2017 motion. The neuropathologist opined that
Christopher had a greater volume of subdural hemorrhage in the bilateral
hematomas than was testified to by the forensic pathologist called by the State at
trial. According to the neuropathologist, this is a significant fact because this
greater blood volume could support a determination that a relatively benign blow
to Christopher’s head some weeks before his death could have “caused a subdural
hemorrhage that evolved to become a significant issue for this child.”
¶37 But even with the benefit of that particular argument, Shelton fails to
persuade us in his current briefing that a jury presented with all of the same
evidence at a new trial (both medical and non-medical), with the addition of post-
conviction pro-defense medical testimony and potential impeachment of the
forensic pathologist who was called by the State at trial, would present the “real
controversy” for the first time, or would be the first trial in which justice would
not be miscarried. Shelton would still face the “very inculpatory evidence”
pointing strongly toward a tragically violent demise for Christopher at Shelton’s
hands.
¶38 Shelton alleges that a jury needs to hear “the truthful story that the
State has worked extra hard to cover up and keep that way,” through “lies and
deception,” but he fails to describe any form of cover up or deception.
21
No. 2022AP2084
III. The 2022 Motion
¶39 Third postconviction counsel argued that Shelton is entitled to
present “new evidence” involving records of child in need of protection or services
(CHIPS) proceedings involving Uptegraw’s children and the recording of a
statement Uptegraw made to police on March 19, 2007. Shelton submits that this
evidence “strongly suggests that Amy [Uptegraw] falsely accused [Shelton] of
abuse in an effort to regain custody of her three living children.”12 The argument
is that the “new evidence” would bolster a defense argument at a new trial that
Uptegraw falsely implicated Shelton in Christopher’s death because this would put
Shelton in a bad light, under the rationale that this could help Uptegraw win or
retain custody of her children. But as the circuit court emphasized in denying the
2022 motion, these topics were in play during the 2009 trial (notably, a primary
defense strategy at trial was an attempt to undermine Uptegraw’s credibility) and
Shelton fails to provide a sufficient reason for his failure not to raise these issues
in July 2013. And, as the circuit court further pointed out, the record shows that
Shelton referred to the March 19, 2007 police interview with Uptegraw as far back
as June 2009, years before he filed his July 2013 postconviction motion.13
12
As the State points out, the 2022 motion does not contain a “newly discovered
evidence” claim, but instead third postconviction counsel speaks in terms of “newly available
evidence,” which is presented exclusively in the context of a claim of ineffective assistance of
trial counsel, a purported Brady violation, and a request for a new trial in the interest of justice.
See Brady v. Maryland, 373 U.S. 83 (1963) (suppression by the government of material evidence
favorable to a defendant violates the defendant’s right to due process). Therefore, the law
governing claims of newly discovered evidence does not apply.
13
For this reason, Shelton is also procedurally barred from raising a claim regarding the
March 19, 2007 police interview of Uptegraw based on Brady (suppression by the government of
material evidence favorable to a defendant violates the defendant’s right to due process), as he
attempts to do in the 2022 motion.
22
No. 2022AP2084
¶40 Because the procedural bar under Escalona-Naranjo applies to the
2022 motion, the circuit court appropriately declined to hold an evidentiary
hearing regarding its allegations.
CONCLUSION
¶41 For all these reasons, we affirm the circuit court’s denial of the 2017
and 2022 postconviction motions.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
23