### COURT OF APPEALS DECISION DATED AND FILED May 19, 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No s . 2019AP1782

2019AP1783 Cir. Ct. No s . 2012CF 1393 2013CF 270

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
D ELANTE D. H IGGENBOTTOM ,
D EFENDANT - A PPELLANT .

APPEAL S from orders of the circuit court for Racine County:
TIMOTHY D. BOYLE , Judge. Affirmed

.

Before Reilly, P.J., Gundrum and Davis, 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 W IS . S TAT . R ULE 809.23(3).Nos. 2019AP1782 2019AP1783

2 ¶ 1 PER CURIAM. In these consolidated cases, Delante D. Higgenbottom appe als pro se from orders denying his postconviction motion for
relief

. He contends that he received ineffective assistance of counsel. He further contends that he is entitled to a new trial in the interest of justice

. For the reasons that follow, we affir m.
¶ 2 Higgenbottom was convicted following a jury trial of armed robbery as party to a crime, felon in possession of a firearm, and carrying a concealed
weapon. The charges stemmed from two separate cases that were consolidated for
trial.

¶ 3 In the first case, Higgenbottom was accused of participating in an armed robbery with Ashley Ferguson and Tramell Grier

. According to the complaint, Ferguson lured the victim to a h otel parking lot where Higgenbottom
and Grier robbed him at gunpoint

. ¶ 4 In the second case, Higgenbottom was accused of possessing a gun that matched the victim’s description of the one used in the robbery

. The weapon
was discovered under the front seat of Higgenbottom’s vehicle when he an d Ferguson were stopped by police hours after the robbery. Higgenbottom admitted that the gun was his , and he was a convicted felon at the time.

¶ 5 T his court affirmed Higgenbottom’s convictions on direct appeal

. State v. Higgenbottom , Nos. 2016AP457

- CR and 2016AP458

- CR, unpublished slip op. (WI App May 17, 2017). In doing s o, we rejected a number of arguments, including claims that trial counsel was ineffective for (1) not challenging the initial stop of Higgenbottom’s vehicle; (2) not questioning State’s witnesses about
inconsistencies between police reports and testimony related to items found in theNos. 2019AP1782 2019AP1783

3 search of the vehicle; and (3) not obtaining copies of “stale ” search warrants that
would have allowed for a motion to suppress Higgenbo ttom’s cell phone records.

¶ 6 One year later, Higgenbottom filed a motion for postconviction relief pursuant to W IS

. S TAT

. § 974.06 (2019

- 20). 1 Again, he alleged ineffective assistance of counsel, faulting trial counsel for not challengin g the initial stop and
search of his vehicle . He also faulted postconviction counsel for not raising claims related to the State’s withholding of “void ” search warrants for his cell phone
records and using that evidence at trial

. Additionally, Higgenbottom complained
that his trial counsel failed to impeach a State’s witness and failed to object to the circuit court’s use of inaccurate information. 2 After a hearing on the matter, the circuit court denied the motion. This appeal follows.

¶ 7 On appeal, Higgenbottom contends that the circuit court erred in denying his postconviction motion for relief. He renews his claims of ineffective assistance of counsel and seeks a new trial in the interest of justice.

¶ 8 “We need finality in our litigation.” State v. Escalona

- Naranjo , 185
Wis. 2d 168, 185, 517 N.W.2d 157 (1994). Therefore, any claim that could have been raised in a prior postconviction motion or direct appeal cannot form the basis for a subsequent mot ion under WIS. STAT. § 974.06 unless the defendant demonstrates a sufficient reason for failing to raise the claim earlier. Escalona

-

1 All references to the Wisconsin Statutes are to the 2019

- 20 version.

2 The State’s witness was the police officer who found the gun. Higgenbottom accused him of providing false testimony regarding the circumstances under which Higgenbottom admitted that the gun was his. The alleged inaccurate information , meanwhile, pertained to t he officer’s reasons for asking Ferguson to get out of the vehicle during the st op. The circuit court found the se claims to be speculative and inconsequential.Nos. 2019AP1782 2019AP1783

4 Naranjo , 185 Wis. 2d at 185. Further more , a defendant may not relitigate a matter previously litigated, “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).

¶ 9 Applying these principles, we co nclude that Higgenbottom’s claims
of ineffective assistance of counsel are procedurally barred. The issues related to
the stop and search of his vehicle and the validity of the search warrants for his
cell phone records were previously raised on direct ap peal and cannot be relitigated. Id. As for the other issues raised in Higgenbottom’s postconviction motion, he has not demonstrated a sufficient reason for failing to raise them
earlier. See Escalona

- Naranjo , 185 Wis. 2d at 185.

¶ 10 Although ineffective assistance of postconviction counsel may constitute a sufficient reason for failing to raise an available claim on direct appeal, State v. Romero

- Georgana , 2014 WI 83, ¶36, 360 Wis. 2d 522, 849 N.W.2d 668, Higgenbottom has not establis hed that here

. His postconviction
motion failed to show with specificity why and how his new claims we re “clearly stronger” than the ones actually raised by postconviction counsel. Id. , ¶¶4 5 , 46. Likewise, it failed to reveal how h e was prejudiced in li ght of the other evidenceNos. 2019AP1782 2019AP1783

5 against him

. 3 Accordingly, we are satisfied that the circuit court properly denied
the motion.

¶ 11 Finally, we address Higgenbottom’s argument that he is entitled to a new trial in the interest of justice. He asks for this relief pursuant to W IS

. S TAT

. § 752.35 , which allows this court to reverse a judgment “if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried.”

¶ 12 We exercise our discretionary power to grant a new trial infrequently and judiciously. State v. Ray , 166 Wis. 2d 855, 874, 481 N.W.2d 288 (C t. App. 1992). We have already determined that Higgenbottom’s claims were either previously litigated or not shown to be clearly stronger than the ones raised before.
We are not convinced that the real controversy was not fully tried or that justice
misc arried. As a result, we decline to order a new trial pursuant to W IS

. S TAT

. § 752.35. 4

3 As noted by the State, the evidence against Higgenbottom was overwhelming . This included (1) cell phone records placing him near the scene of the armed robbery ; (2) a surveillance video placing a man with the same distinctive coat as Higgenbottom near the scene of the armed robbery ; (3) items found in Higgenbottom’s vehicle ( gun, hats , ear

- warmers ) consistent with the victim’s description of what the robbers used/wore; (4) Higgenbottom’s admission that the gun in the vehicle was his; (5) cash found in Higgenbottom’s pocket consistent with the victim’s account of what was taken ; and (6 ) Ferguson’s testimony against Higgenbottom.

4 To the extent we have not addressed an argument raised by Higgenbottom on appeal, t he argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc. , 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978).Nos. 2019AP1782 2019AP1783

6 By the Court.

— Orders affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.