2014 WI 91

OFFICE OF THE CLERK

110 EAST MAIN STREET, SUITE 215

P.O. BOX 1688

MADISON, WI 53701-1688 

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640

Web Site: www.wicourts.gov

July 24, 2014

To: 

Hon. Kevin E. Martens

Circuit Court Judge

Safety Building Courtroom, # 502

821 W. State Street

Milwaukee, WI 53233-1427

John Barrett

Clerk of Circuit Court

Room 114

821 W. State Street

Milwaukee, WI 53233

Karen A. Loebel

Asst. District Attorney

821 W. State St.

Milwaukee, WI 53233

Robert R. Henak

Henak Law Office, S.C.

316 N. Milwaukee St., Ste. 535

Milwaukee, WI 53202

Sarah K. Larson

Assistant Attorney General

P. O. Box 7857

Madison, WI 53707-7857

You are hereby notified that the Court has entered the following order: 

2010AP425 State v. Tramell E. Starks LC # 2006CF450

The court having considered the Motion for Reconsideration filed in the above matter, 

IT IS ORDERED that the Motion for Reconsideration is denied, without costs.

Diane M. Fremgen

Clerk of Supreme Court
No. 2010AP425.ssa

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¶1 SHIRLEY S. ABRAHAMSON, C.J. (concurring). The

State's and the defendant's motions for reconsideration have

been pending in this court for nearly a year. They have 

obviously troubled the court.

¶2 The State and the defendant, opposing parties that 

generally do not see eye-to-eye on legal or factual issues, 

agree for the most part in their reconsideration motions. They 

agree, as do I, that this court erred in the Starks majority 

opinion in discussing and deciding basic "bread and butter 

issues," issues that arise frequently in circuit courts and the 

court of appeals and require clarity for all litigants. 

¶3 I would not have a full-blown reconsideration of the 

Starks case. I would, however, have the court revise the Starks

opinion in a per curiam response to the motions, as has been our 

practice in other cases when the court needs to revise an 

opinion. 

¶4 Correcting the majority's errors in Starks is 

important even though defendant Starks may not benefit from any 

correction of the Starks majority opinion. Indeed both the 

State's and the defendant's motions acknowledge that Mr. Starks 

will not personally benefit from their motions. 

¶5 The court's lengthy discussion of criminal postconviction and appeal procedure in the Starks majority opinion 

affects more than the defendant, Starks. It is precedential for 

all cases and all courts. In their motions for reconsideration, 

both counsel are acting as officers of the court in seeking 
No. 2010AP425.ssa

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reconsideration and clarification of the opinion, as well as 

adversary counsel. They should be commended.

¶6 The Starks opinion needs modification. I am concerned 

that unless a reader is familiar with the State's and the 

defendant's well-reasoned motions to reconsider the Starks

majority opinion, the reader may not fully understand the nature 

of the errors in the Starks majority opinion and the needed 

corrections. I have therefore attached to this concurrence a 

copy of both the State's and defendant's motions to assist the 

reader.

¶7 Other cases raising issues addressed in Starks will 

come before this court. I would prefer that modifications to 

the Starks majority opinion be done in a per curiam opinion on 

the motions to reconsider now rather than piecemeal in other 

cases.

1 

¶8 For the reasons set forth, I cannot join the order 

that denies the motions for reconsideration and fails to modify 

the Starks opinion. 

 

1 See, e.g., Kyles v. Pollard, 2014 WI 38, ___ Wis. 2d ___, 

___ N.W.2d ___; State v. Romero-Georgana, 2014 WI 83, ___ 

Wis. 2d ___, ___ N.W.2d ___.
No. 2010AP425.ssa

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APPENDIX A
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APPENDIX B
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No. 2010AP425.dtp

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¶9 DAVID T. PROSSER, J. (concurring). The court has 

voted unanimously to deny the motions for reconsideration. This 

concurrence is one justice's explanation of his vote.

¶10 Last term, the court issued an opinion in State v. 

Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, affirming 

an unpublished decision of the court of appeals, State v. 

Starks, No. 2010AP425, unpublished slip op. (Wis. Ct. App. June 

14, 2011). In so doing, the court upheld the convictions of 

Tramell E. Starks (Starks) for first-degree reckless homicide 

and felon-in-possession of a firearm against constitutional 

attack by Starks, pursuant to Wis. Stat. § 974.06.

¶11 The procedural issues in the case were both 

complicated and unusual. In 2006 Starks was charged with being 

a felon in possession of a firearm and, more important, with 

first-degree intentional homicide as a party to the crime. He 

was represented at trial by Attorney Michael John Steinle. A 

jury convicted Starks of the felon-in-possession-of-a-firearm 

offense and first-degree reckless homicide, a lesser included 

offense of first-degree intentional homicide.2

¶12 Following Starks's conviction, the Public Defender's 

Office appointed a new attorney, Robert Kagen, to represent 

Starks in postconviction proceedings. Attorney Kagen did not 

file any postconviction motions under Wis. Stat. § 974.02. 

Instead he filed a direct appeal, raising four claims, none of 

 

2 Milwaukee County Circuit Judge William W. Brash III 

presided at Starks's trial.
No. 2010AP425.dtp

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which alleged that Starks's trial counsel was ineffective. The 

court of appeals affirmed both convictions. State v. Starks, 

No. 2008AP790-CR, unpublished slip op. (Wis. Ct. App. Dec. 23, 

2008). This court denied Starks's petition for review.

¶13 Approximately three years after the jury trial and one 

year after the decision in the unsuccessful appeal, Starks, 

acting pro se, filed a Wis. Stat. § 974.06 motion with the 

circuit court, alleging ineffective assistance of postconviction 

counsel. Starks alleged that Attorney Kagen was ineffective for 

failing to raise numerous claims about the ineffective 

assistance of trial counsel (Steinle) and that, consequently, he 

was entitled to an evidentiary hearing on these claims.

¶14 The circuit court dismissed the § 974.06 motion on 

grounds that it exceeded the Milwaukee County Circuit Court page 

limit. This dismissal occurred on January 4, 2010.

¶15 Two days later, Starks, again acting pro se, filed a 

motion pursuant to State v. Cherry, 2008 WI App 80, 312

Wis. 2d 203, 752 N.W.2d 393, to vacate his DNA surcharge. The 

motion was denied on grounds that the motion was not timely.

¶16 Thereafter, Starks refiled his first § 974.06 motion, 

keeping the explanation of his claims within the local page 

limit. Starks alleged six instances of ineffective assistance 

of trial counsel. Milwaukee County Circuit Judge Kevin E. 

Martens addressed each of Starks's claims and denied the motion 

on the merits.

¶17 On appeal the court of appeals declined to address the 

§ 974.06 motion on the merits, contending that Starks could have 
No. 2010AP425.dtp

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raised his ineffective assistance of counsel claims in the 

Cherry motion, failed to do so, and gave no reason for this 

failure.

¶18 This court then granted Starks's petition for review. 

When Starks's case was argued here, he was represented by 

Attorney Tricia J. Bushnell and others.

¶19 In deciding the case, the court framed the issues as 

follows:

Three issues are presented in this case. The 

first is whether a Cherry motion to vacate a DNA 

surcharge is considered a "prior motion" under 

§ 974.06(4), such that a defendant is required to 

raise postconviction ineffective assistance of counsel 

arguments in his Cherry motion. The second issue we 

address is the appropriate pleading standard a court 

must utilize when a defendant alleges in a petition 

for writ of habeas corpus that his appellate counsel 

was ineffective for failing to raise certain 

arguments. Finally, we must determine whether Starks 

received ineffective assistance of appellate counsel.

Starks, 349 Wis. 2d 274, ¶5.

¶20 The court, however, addressed an additional matter not 

argued by the parties. The court said:

At the outset we note that there is a procedural 

problem in this case. Starks's Wis. Stat. § 974.06

motion, which was filed with the circuit court, 

alleged ineffective assistance of postconviction

counsel. However, the attorney who represented him 

after his conviction did not file any postconviction 

motions and instead pursued a direct appeal. He was 

thus not Starks's postconviction counsel but was 

rather his appellate counsel. This is significant 

because claims of ineffective assistance of appellate 

counsel must be filed in the form of a petition for a 

writ of habeas corpus with the court of appeals. 

State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 

(1992). By bringing his claim in the circuit court, 

Starks pursued his case in the wrong forum. However, 
No. 2010AP425.dtp

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because the erroneous filing deprived the circuit 

court of competency rather than jurisdiction, our 

review of his case is appropriate.

Id., ¶4.

¶21 In the wake of the Starks opinion, this court received 

two motions for reconsideration, one from Starks and one from 

the State. Both parties took issue with the court's discussion 

in the above-quoted paragraph 4. Both parties contended that on 

the facts of the case, Starks was correct in challenging the 

effectiveness of postconviction counsel and thus correct in 

filing his § 974.06 motion in the circuit court. 

Correspondingly, both parties contended that this court's 

characterization of Starks's motion as a challenge to the 

effectiveness of appellate counsel was incorrect and its 

assertion that Starks should have filed a petition for a writ of 

habeas corpus in the court of appeals was thus mistaken.

¶22 Starks's motion, filed by Attorney Robert Henak, read 

in part:

Tramell E. Starks, by counsel, moves this Court 

pursuant to Wis. Stat. (Rules) 809.14 & 809.64 for an 

order striking paragraphs 4, 27, 30, 33-40, and that 

portion of paragraph 31 asserting that Starks filed 

his ineffective assistance of post-conviction counsel 

claim in the wrong court. Starks requests that the 

Court withdraw its opinion and order briefing 

regarding whether State ex rel. Rothering v. 

McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 

1996) (ineffectiveness claims challenging failure to 

file post-conviction motion must be raised in circuit 

court under Wis. Stat. § 974.06), should be overruled.

¶23 The State's motion, authored by Assistant Attorney 

General Sarah K. Larson, read in part:
No. 2010AP425.dtp

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[T]he State seeks to modify all paragraphs discussing 

the role of Attorney Kagen, and clarify the proper 

forum for Starks to bring his claims (i.e., paragraphs 

4, 6, 29-40, 56, 60, 66, 74-75). Specifically, the 

State seeks to clarify whether this court is 

overruling State ex rel. Rothering v. McCaughtry, 205 

Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996), and/or 

modifying State v. Knight, 168 Wis. 2d 509, 484 

N.W.2d 540 (1992).

¶24 Starks raised a second issue in his motion for 

reconsideration. He asked that the court reconsider its 

assessment of his substantive claims "because that assessment 

conflicts with controlling and apparently overlooked legal 

standards."

¶25 The State also raised a second issue, namely, that 

paragraph 41 of the Starks opinion should be modified because it 

relied too heavily on language from Peterson v. State, 54 

Wis. 2d 370, 381, 195 N.W.2d 837 (1972), which the State deemed 

outdated because of a 1977 amendment to Wis. Stat. § 974.06(1).

¶26 Although the two motions for reconsideration are 

denied, I believe the denial would benefit from discussion. In 

my view, two of the three issues presented in the motions are 

issues requiring clarification. However, none of these issues 

requires the court to withdraw the Starks opinion, and none of 

the issues presented offers any possibility that Tramell Starks

is entitled to a hearing in the circuit court, much less a new 

trial. 

¶27 By our denial of the motions for reconsideration, the 

court affirms Starks's two convictions. The three issues 

presented for reconsideration will be discussed in reverse 

order.
No. 2010AP425.dtp

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PARAGRAPH 41

¶28 Paragraph 41 of the Starks opinion explained that Wis. 

Stat. § 974.06 was "designed to replace habeas corpus as the 

primary method in which a defendant can attack his conviction 

after the time for appeal has expired." Starks, 349 

Wis. 2d 274, ¶41 (quoting Howard B. Eisenberg, Post-Conviction 

Remedies in the 1970's, 56 Marq. L. Rev. 69, 79 (1972)). The 

second sentence in paragraph 41 sought to reinforce this point 

by quoting a passage from the Peterson case to the effect that a 

defendant may file a § 974.06 motion only after he has 

"exhausted his direct remedies[,] which consist of a motion for 

a new trial and [an] appeal." Starks, 349 Wis. 2d 274, ¶41 

(brackets in original) (quoting Peterson, 54 Wis. 2d at 381). 

Unfortunately, the second sentence was misleading: In 1977 (five 

years after the Peterson opinion), Wis. Stat. § 974.06(1) was 

amended by adding the words, "After the time for appeal or postconviction remedy provided in s. 974.02 has expired" [a § 974.06 

motion may be filed]. § 130, ch. 187, Laws of 1977. "Expired" 

and "exhausted" are different concepts. "Expired" means that 

the time for filing a § 974.02 motion or an appeal has run out 

and thus these remedies are no longer available. "Exhausted" 

means that at least one of these remedies was tried and did not 

succeed and, as a result, they are no longer available. In 

either event, the more limited remedy of a motion under § 974.06 

may still be available. In essence, a § 974.06 motion does not 

become available until the initial postconviction remedies are 

unavailable.
No. 2010AP425.dtp

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¶29 As the court noted in State v. Balliette, 2011 WI 79, 

¶36, 336 Wis. 2d 358, 805 N.W.2d 334:

If a defendant did not file a motion for relief 

under Wis. Stat. § 974.02 or a direct appeal, he is 

not subject to the "sufficient reason" requirement of 

§ 974.06(4). State v. Lo, 2003 WI 107, ¶44 n.11, 264 

Wis. 2d 1, 665 N.W.2d 756 (citing Loop v. State, 65 

Wis. 2d 499, 222 N.W.2d 694 (1974)).

¶30 Paragraph 41 did not intend to modify the longstanding 

law stated above, but this clarification of the paragraph is in 

no way helpful to Starks.3

SUBSTANTIVE CLAIMS

¶31 Starks made four claims that his postconviction 

counsel (Kagen) was ineffective. These claims were addressed by 

Judge Martens in the circuit court, and they were addressed, 

point by point, in this court's Starks opinion. Starks, 349 

Wis. 2d 274, ¶¶66-73.

¶32 In evaluating the effectiveness of postconviction 

counsel, a reviewing court must determine: (1) whether counsel's 

performance was deficient; and (2) whether counsel's deficiency, 

if any, prejudiced the defendant. In this case, Attorney Kagen 

made no motions as postconviction counsel but did make four 

claims as appellate counsel in the court of appeals. None of 

these four claims asserted that trial counsel was ineffective. 

Thus, this court viewed its responsibility in the Starks case as 

determining whether the four claims that Starks said Kagen 

should have made as postconviction counsel were "clearly 

 

3 See State v. Romero-Georgana, 2014 WI 83, ¶35, ___ 

Wis. 2d ___, ___ N.W.2d ___.
No. 2010AP425.dtp

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stronger" than the four claims that Kagen did make as appellate 

counsel, thereby rendering his performance constitutionally 

deficient.

¶33 The court chose not to compare Starks's four claims 

against the failure of postconviction counsel to file any claims 

in the circuit court. An argument can be made that Attorney 

Kagen should have brought a postconviction motion asking the 

circuit court to pass upon the claims he raised for Starks on 

appeal, and that argument is supported by Wis. Stat. § (Rule) 

809.30(2)(h) ("The person shall file a motion for postconviction 

or postdisposition relief before a notice of appeal is filed 

unless the grounds for seeking relief are sufficiency of the 

evidence or issues previously raised."). However, I believe it 

would have been unreasonable for the court not to consider the 

arguments that Attorney Kagen did make in the court of appeals 

in evaluating the strength of the new arguments against the 

strength of the old.

¶34 In adopting the "clearly stronger" test, this court 

quoted from Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986): 

"When a claim of ineffective assistance of counsel is based on 

failure to raise viable issues, the [trial] court must examine 

the trial court record to determine whether appellate counsel 

failed to present significant and obvious issues on appeal." 

(Emphasis added.)

¶35 Attorney Kagen did not fail to present significant and 

obvious issues if the alternative issues he allegedly should 

have raised are the issues that have been presented by Starks. 
No. 2010AP425.dtp

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Starks's issues are not clearly stronger than the issues argued 

by Attorney Kagen.

¶36 To illustrate, Starks contends that Kagen was 

ineffective for not claiming Attorney Steinle was ineffective 

because Steinle did not call Mario Mills as a defense witness at 

trial. Mills was originally charged, along with Starks, with

first-degree intentional homicide. Before trial, Mills pled 

guilty to furnishing a firearm to Starks, a convicted felon. 

This firearm was the weapon that was used by Starks to kill Lee 

Weddle. Mills was not only present at the incident but also 

present with Starks after the incident when Wayne Rogers called 

Mills to inquire about Weddle. It is somewhat astonishing that 

Starks accuses Attorney Steinle of ineffective assistance for 

not calling Mills as a defense witness simply because Mills, 

after his own plea and after Starks's conviction, signed an 

affidavit that said, "I never seen Tramell Starks shoot anyone." 

Whether this statement is literally true does not help Starks 

because Mills admitted furnishing Starks with a firearm. 

Mills's testimony would have confirmed one felony charge and 

placed a gun in Starks's hand at the time of the shooting. 

Surely, Attorney Steinle could not have expected Mills to admit 

to the killing himself (when other witnesses asserted that 

Starks was the shooter) or to concoct a story that would 

exonerate Starks entirely. This court's Starks opinion makes no 

claim that a separately charged witness's sworn allegations are 

inherently unreliable.
No. 2010AP425.dtp

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¶37 Starks's three other ineffective assistance of counsel 

claims are equally speculative and unpersuasive. I see no basis 

for additional consideration of Starks's substantive claims. 

For instance, the fact that Starks's father and grandmother 

assert that they did not see Starks talking with Trenton Gray at 

a funeral about Starks's desire to kill Carvius Williams does 

not mean the two men never discussed the subject. The circuit 

court completely answered this contention: "There is not a 

reasonable probability that the jury would have found it 

reasonable to believe that both the defendant's grandmother and 

his father had their eyes on the defendant's every single 

movement on the day of the funeral."

¶38 Attorney Steinle was confronted with very difficult 

facts, but he succeeded in persuading the jury to settle on a 

reduced homicide conviction for Starks. Attorney Kagen was far 

more realistic than Starks in trying to find some procedural 

error in the trial than in trying to pin Starks's conviction on 

Attorney Steinle's performance.

PROPER FORUM FOR FILING

¶39 I move now to the principal issue in the motions for 

reconsideration.

¶40 In State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 

(1992), the defendant launched an attack on the effectiveness of 

his appellate counsel by filing a § 974.06 motion in circuit 

court. The circuit court denied the motion on grounds that it 

did not have authority under § 974.06 to grant the relief 

requested. Id. at 511. On review, a unanimous supreme court 
No. 2010AP425.dtp

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concluded that "to bring a claim of ineffective assistance of 

appellate counsel, a defendant should petition the appellate 

court that heard the appeal for a writ of habeas corpus." Id.

at 520 (emphasis added).

¶41 In Knight, there was no claim——at any point——that 

Knight's trial counsel had been ineffective. 

¶42 In State ex rel. Rothering v. McCaughtry, 205 

Wis. 2d 675, 676, 556 N.W.2d 136 (Ct. App. 1996), the defendant 

petitioned the court of appeals for a writ of habeas corpus, 

pursuant to Knight, claiming that his appellate counsel was 

constitutionally deficient in failing to seek withdrawal of his 

guilty plea. Rothering's trial, postconviction, and appellate 

counsel had been one and the same. Rothering, 205 Wis. 2d at 

676. The court of appeals refused to grant the writ of habeas 

corpus on grounds that the defendant was really challenging the 

effectiveness of postconviction counsel and thus his claim for 

relief, if any, should be filed in the circuit court: "We 

conclude that a claim of ineffective assistance of 

postconviction counsel should be raised in the trial court 

either by a petition for habeas corpus or a motion under 

§ 974.06, Stats." Id. at 681 (footnote omitted).

¶43 Unlike Knight, Rothering was a case in which the 

defendant really was disputing the effectiveness of his trial 

counsel by challenging the effectiveness of his postconviction 

counsel in not going after trial counsel.

¶44 The Starks opinion did not dispute the correctness of 

the quoted holdings in Knight and Rothering. The motions for 
No. 2010AP425.dtp

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reconsideration contend instead that this court mischaracterized 

the stage of the proceeding in which the alleged ineffective 

assistance took place. The motions are supported by this 

court's decision in Balliette, 336 Wis. 2d 358, ¶32, in which 

the court said: "When . . . conduct alleged to be ineffective is 

postconviction counsel's failure to highlight some deficiency of 

trial counsel in a § 974.02 motion before the trial court, the 

defendant's remedy lies with the circuit court under either Wis. 

Stat. § 974.06 or a petition for habeas corpus." Id. (citing 

Rothering, 205 Wis. 2d at 679, 681).4

¶45 It must be acknowledged that no one on the court, 

including the writer of this concurrence, recognized the 

incorrectness of our characterization in the Starks opinion. 

After all, the court gave Starks a full review of his claims, 

evaluating the strength of the arguments made and discussed by 

Attorney Kagen in Starks's prior appeal against the arguments 

Starks later proposed, not the strength of the arguments that 

Starks later proposed against the decision of postconviction 

counsel not to make any arguments at all. The situation in 

Starks's first appeal was exactly the same as the situation in 

Knight's first appeal: "postconviction" counsel made no motions 

in circuit court and went straight to appeal. The difference 

 

4 See also State ex rel. Kyles v. Pollard, 2014 WI 38, ¶3, 

___ Wis. 2d ___, ___ N.W.2d ___ (determining that "the court 

where the alleged ineffective assistance of counsel occurred is 

the proper forum in which to seek relief unless that forum is 

unable to provide the relief necessary to address the 

ineffectiveness claim").
No. 2010AP425.dtp

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here is that Starks, unlike Knight, claimed in his § 974.06 

motion that his postconviction counsel was ineffective because 

of the failure to accuse his trial counsel of ineffectiveness.

¶46 One of the dilemmas exposed here is that any

postconviction counsel, no matter how able and conscientious, 

becomes vulnerable to a subsequent § 974.06 motion for 

ineffective assistance of counsel if he does not himself file an 

ineffective assistance of counsel claim against the defendant's 

trial attorney. Such a motion will require the circuit court to 

evaluate the claim and may necessitate——depending upon the 

defendant's skill in drafting his motion——a Machner hearing to 

review the performance of postconviction counsel.

¶47 This is very reminiscent of the concerns expressed by 

former court of appeals judge David Deininger in 2001:

In an increasing number of appeals from the 

denial of motions brought under Wis. Stat. § 974.06, 

especially those brought by pro se inmates, we are 

seeing an assertion that the reason the newly raised 

claims of error were not raised in previous 

postconviction or appellate proceedings is that 

postconviction or appellate counsel rendered 

ineffective assistance by failing to present the 

allegedly meritorious claims. In order to determine 

whether the new claims are properly before the court, 

the circuit court and/or this court must first 

evaluate the "sufficiency" of the proffered reason, 

which, as the majority's present analysis 

demonstrates, will often require a consideration of 

the merits of the underlying, newly asserted claim. 

And, even if we or the circuit court conclude that the 

claim has no merit, and thus that postconviction or 

appellate counsel's failure to raise the claim did not 

represent either deficient performance or prejudice to 

the defendant, the defendant has essentially obtained 

what § 974.06 and Escalona-Naranjo ostensibly deny: 

the consideration of the merits of the defendant's 
No. 2010AP425.dtp

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newly asserted claim, for which sufficient reason has 

not been shown for an earlier failure to raise it.

Further complicating the analysis is the fact 

that many of the newly raised claims, as in this case, 

involve an assertion that trial counsel was 

ineffective for failing to make some request or 

objection during trial or pre-trial proceedings, and 

that subsequent counsel were ineffective for failing 

to raise a claim of ineffective assistance of trial 

counsel. Thus, on a record which contains neither a 

trial court ruling on a now disputed issue, nor a 

Machner hearing on why trial counsel failed to raise 

the issue, we or the circuit court must ponder the 

following question: Is there merit to the now raised 

issue, such that trial counsel was deficient for not 

making a request or objection regarding it, thereby 

prejudicing the defendant, and thereby also rendering 

postconviction and/or appellate counsel's performance 

[deficient] and prejudicial for failing to assert 

trial counsel's ineffectiveness, such that the 

defendant has presented a sufficient reason for the 

failure to raise the issue in earlier postconviction 

or appellate proceedings, which would permit him to 

now bring the issue before the court for a 

consideration of its merits?

Lo, 264 Wis. 2d 1, ¶50 (quoting State v. Lo, No. 01-0843, 

unpublished slip op., ¶¶56-57 (Wis. Ct. App. Dec. 28, 2001) 

(Deininger, J., concurring)).

¶48 In effect, the court is inviting an ineffective 

assistance of counsel claim——at some point——after every criminal 

conviction.

¶49 In any event, no one on the court disputes the basic 

correctness of the holdings in Knight and Rothering as to where 

to file a petition for a writ of habeas corpus challenging the 

effectiveness of appellate counsel or a § 974.06 motion 

challenging the effectiveness of postconviction counsel, for not 

challenging, or deficiently challenging, the alleged ineffective 
No. 2010AP425.dtp

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assistance of trial counsel. Consequently, I believe the court 

should withdraw any language from the Starks opinion that 

suggests otherwise.

¶50 For the reasons stated above, I believe the two 

motions for reconsideration should be denied.

¶51 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this concurrence.