COURT OF APPEALS

DECISION

DATED AND FILED

May 27, 2020

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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP730 Cir. Ct. No. 2013CF209

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARIO EMMANUEL JAMES,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County: 

T. CHRISTOPHER DEE, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, 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. 2019AP730

2

¶1 PER CURIAM. Mario Emmanuel James, pro se, appeals the order 

denying his WIS. STAT. § 974.06 (2017-18)1 motion without a hearing. James 

argues that his postconviction counsel was ineffective for not raising stronger 

claims and that he has newly discovered evidence. We disagree and affirm. 

I. BACKGROUND

¶2 This court has previously summarized the relevant facts of James’s 

case. See State v. James, No. 2016AP981-CR, unpublished slip op. ¶¶2-9 (WI 

App Sept. 19, 2017). For purposes of this appeal, it suffices to state that a jury 

found James guilty of one count of armed robbery with the use of force as a party 

to a crime and one count of burglary, arming himself with a dangerous weapon 

while within the burglarized enclosure, as a party to a crime. This court affirmed 

the judgment of conviction and the order denying James’s motion for 

postconviction relief. See id., ¶1. The Wisconsin Supreme Court subsequently 

denied James’s petition for review. 

¶3 In the underlying WIS. STAT. § 974.06 motion, James argued that his 

postconviction counsel was ineffective for not arguing that the State violated 

Brady v. Maryland, 373 U.S. 83 (1963), and for not arguing that trial counsel was 

ineffective. James additionally argued that he had newly discovered evidence and 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2019AP730

3

that he was entitled to a new trial in the interest of justice. The postconviction 

court denied James’s motion without a hearing.2 

¶4 This appeal follows. We provide additional background information 

as needed below.

II. DISCUSSION

¶5 A defendant must “raise all grounds regarding postconviction relief 

in his or her original, supplemental or amended motion.” State v. EscalonaNaranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994); WIS. STAT. § 974.06. 

He or she is procedurally barred from using § 974.06 to raise new issues absent a 

sufficient reason for not raising the issues earlier. See Escalona, 185 Wis. 2d at 

184-85; § 974.06(4). 

¶6 We must decide whether James’s postconviction motion is sufficient 

on its face to entitle him to an evidentiary hearing. A hearing is required “only 

when the movant states sufficient material facts that, if true, would entitle the 

defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 

N.W.2d 433. Whether the motion alleges sufficient material facts is a question of 

law. Id., ¶9. If it does, the circuit court must hold a hearing. Id. If it does not, or 

if it presents only conclusory allegations, or if the record conclusively shows the 

defendant is not entitled to relief, the decision to grant or deny a hearing is left to 

 

2

 The Honorable T. Christopher Dee decided James’s WIS. STAT. § 974.06 motion, and 

we refer to him as the postconviction court. The Honorable Jonathan D. Watts presided over the 

jury trial and sentenced James, and the Honorable Frederick C. Rosa denied James’s WIS. STAT.

§ 974.02 postconviction motion. We refer to both as the circuit court. 
No. 2019AP730

4

the circuit court’s discretion. Id. “We review a circuit court’s discretionary 

decisions under the deferential erroneous exercise of discretion standard.” Id.

A. Postconviction Counsel’s Ineffectiveness

¶7 We begin with James’s arguments that postconviction counsel was 

ineffective. To prove ineffective assistance of counsel, a defendant must show 

both that counsel’s performance was deficient and that the deficiency prejudiced 

his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant 

“must prevail on both parts of the test to be afforded relief.” Allen, 274 Wis. 2d 

568, ¶26. We independently review “the legal questions of whether deficient 

performance has been established and whether it led to prejudice rising to a level 

undermining the reliability of the proceeding.” State v. Roberson, 2006 WI 80, 

¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation omitted). However, “[a] court 

need not address both components of this inquiry if the defendant does not make a 

sufficient showing on one.” State v. Smith, 2003 WI App 234, ¶15, 268 Wis. 2d 

138, 671 N.W.2d 854.

¶8 Ineffective assistance of postconviction counsel may be a sufficient 

reason for failing to raise a claim in a prior motion. State v. Romero-Georgana, 

2014 WI 83, ¶36, 360 Wis. 2d 522, 849 N.W.2d 668. As part of showing deficient 

performance, “a defendant who alleges in a [WIS. STAT.] § 974.06 motion that his 

postconviction counsel was ineffective for failing to bring certain viable claims 

must demonstrate that the claims he wishes to bring are clearly stronger than the 

claims postconviction counsel actually brought.” Id., ¶¶4, 45-46. However, we 

need not analyze whether James’s new claims are clearly stronger than the ones 

previously raised. As set forth below, James has not demonstrated that he was 

prejudiced by postconviction counsel’s alleged deficiencies.
No. 2019AP730

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1. Brady Violation

¶9 In his WIS. STAT. § 974.06 motion, James argued that postconviction 

counsel was ineffective for not arguing that the State violated Brady by failing to 

disclose his cell phone data. To establish a Brady violation, a defendant must 

show that the State suppressed the evidence in question, that the impeachment or 

exculpatory evidence was favorable to him or her, and that the evidence was 

material to the determination of his or her guilt or punishment. State v. Rockette, 

2006 WI App 103, ¶39, 294 Wis. 2d 611, 718 N.W.2d 269. 

¶10 According to James, “[t]he non[]disclosed cell phone data and report 

is favorable to [him] because the data retrieved from the phone, when analyzed ... 

will conclude that [he] was in fact not present to have committed the crime[.]” 

However, at a pretrial hearing, James requested the cell phone data at issue. In 

response, the State informed the circuit court that it had not had James’s cell 

phone data analyzed so as to determine his location. As summed up by the 

postconviction court in its decision, “the State did not have a chart establishing the 

whereabouts of [James]’s phone during the period in question because it never 

pursued an investigation into the matter.” 

¶11 Given that the evidence James sought did not exist, the State did not 

violate Brady by suppressing it. Because this claim is meritless, James has not 

established prejudice by postconviction counsel’s failure to pursue it. See State v. 

Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662 (Ct. App. 1994).

2. Alibi Defense and Cell Phone Data

¶12 James additionally argued that postconviction counsel was 

ineffective for not arguing that trial counsel was ineffective for failing to 
No. 2019AP730

6

investigate his alibi defense and for not pursuing the cell phone data. We address 

each argument in turn.

¶13 Regarding his alibi defense, James argued that if trial counsel had 

investigated, he would have discovered that James was in court “the entire 

morning of October 27, 2010,” the day of the crime. James claimed that he told 

trial counsel to discuss this with the attorney who represented him during the 

October 27, 2010 court proceeding. Armed with the information relating to his 

presence in court, James asserted he would have had “strong proof” refuting coactor Anthony Santiago’s trial testimony about when James picked Santiago up 

that day. 

¶14 The victim testified that the robbery occurred around noon on 

October 27, 2010. Santiago testified that James first came and picked him up 

“[e]arlier that day like around noon.” James’s motion does not allege facts that 

would establish an alibi. His morning court appearance does not account for his 

whereabouts at the time the crimes occurred. James has not established prejudice 

by postconviction counsel’s failure to pursue this issue. See Strickland, 466 U.S. 

at 694 (establishing prejudice requires a showing that that but for counsel’s 

unprofessional errors, there is a reasonable probability that the result of the trial 

would have been different).

¶15 Next, James argued that postconviction counsel was ineffective for 

not challenging trial counsel’s unreasonable decision not to pursue exculpatory

cell phone evidence. 

¶16 During trial, the State presented expert testimony that two of James’s 

co-actors made calls near the victim’s home. If he was present at the crime, James 

argues that there would have been similar cell phone data for his phone. Had trial 
No. 2019AP730

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counsel sought the missing cell phone data and used it effectively, James claimed

that the jury would have had exculpatory factual evidence placing him in a

different location at the time of the crime. 

¶17 James’s argument that his cell phone data was exculpatory is 

speculative. Where a claim of ineffective assistance of counsel is based solely on 

speculation, it fails to meet the prejudice prong of Strickland. See State v. 

Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 616 N.W.2d 126 (explaining 

that “[a] defendant must base a challenge to counsel’s representation on more than 

speculation”); see also State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d 749 

(1999). 

B. Newly Discovered Evidence 

¶18 Next, James argued that he has newly discovered evidence that 

Santiago committed perjury during James’s trial. The test for reviewing a request 

for a new trial based on newly discovered evidence is well established:

In order to set aside a judgment of conviction based 

on newly[ ]discovered evidence, the newly[ ]discovered 

evidence must be sufficient to establish that a defendant’s 

conviction was a manifest injustice. When moving for a 

new trial based on the allegation of newly[ ]discovered 

evidence, a defendant must prove: (1) the evidence was 

discovered after conviction; (2) the defendant was not 

negligent in seeking the evidence; (3) the evidence is 

material to an issue in the case; and (4) the evidence is not 

merely cumulative. If the defendant is able to prove all 

four of these criteria, then it must be determined whether a 

reasonable probability exists that had the jury heard the 

newly[ ]discovered evidence, it would have had a 

reasonable doubt as to the defendant’s guilt.

A reasonable probability of a different outcome 

exists if there is a reasonable probability that a jury, 

looking at both the [old evidence] and the [new evidence], 

would have a reasonable doubt as to the defendant’s guilt. 

A court reviewing newly[ ]discovered evidence should 
No. 2019AP730

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consider whether a jury would find that the 

newly[ ]discovered evidence had a sufficient impact on 

other evidence presented at trial that a jury would have a 

reasonable doubt as to the defendant’s guilt. This latter 

determination is a question of law. Manifest injustice has 

been shown and a new trial must be ordered when: (1) the 

four factors of newly[ ]discovered evidence are established; 

and (2) a court determines that had a jury heard the 

newly[ ]discovered evidence, it would have had a 

reasonable doubt as to the defendant’s guilt.

State v. Plude, 2008 WI 58, ¶¶32-33, 310 Wis. 2d 28, 750 N.W.2d 42 (internal 

quotations and citations omitted; brackets in Plude).

¶19 James argued that Santiago perjured himself when he testified about 

his plea agreement with the State. James claimed that he discovered, after 

reviewing Santiago’s sentencing transcript, that Santiago lied to the jury when he 

said that he did not have an agreement with the State that linked his testimony 

against James to the State’s sentencing recommendation. 

¶20 During James’s trial, the State asked Santiago about the agreement 

he entered into when he pled guilty to armed robbery and possessing firearms as a 

felon for his role in the underlying crimes. Santiago testified: “I believe the plea 

bargain was [twenty] in, ten out.” When questioned further, Santiago explained 

that he was not promised anything to testify, but that he hoped the State would 

recommend a lesser sentence. 

¶21 At Santiago’s sentencing, the State confirmed that when Santiago 

pled guilty, its sentencing recommendation was twenty years’ initial confinement, 

to be followed by ten years’ extended supervision. The State additionally

explained that after Santiago entered his plea, he agreed to testify against James at 

trial, “[a]nd the agreement was that he was testifying and agreeing to testify in the 

hopes of some consideration on his open case, being this case.” 
No. 2019AP730

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¶22 The State’s explanation is consistent with Santiago’s testimony. 

Consequently, James’s claim that he has presented newly discovered evidence that

Santiago falsely testified about the plea agreement he had with the State fails. 

¶23 Next, James argued that Santiago lied to the jury about his military 

service. During James’s trial, Santiago testified that he was in the military for six 

years and was in combat in Iraq for eighteen months. James claimed that he has 

newly discovered evidence in the form of a letter from the National Personnel 

Records Center, which states that Santiago was in the army reserves from 

November 2004 through May 2008 and that he performed “no active duty ... other 

than for training purposes.” 

¶24 Even if we conclude that the letter satisfies the first four criteria of 

the newly discovered evidence test, James’s claim still fails. During his 

testimony, Santiago admitted that he initially lied to the police and also admitted 

that he committed the underlying armed robbery. We are wholly unconvinced that 

a jury would have had a reasonable doubt as to James’s guilt if Santiago had been 

impeached—and had his credibility been further challenged—with a letter 

suggesting that he embellished his military service. See id., ¶33.

¶25 James does not renew the argument he made in his postconviction 

motion that reversal is appropriate in the interest of justice because the real 

controversy was not fully tried. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 

Wis. 2d 475, 493, 588 N.W.2d 285 (Ct. App. 1998) (“[W]hen a party fails to argue 

an issue in its main appeal brief, the appellate court may treat the issue as having 

been abandoned, even though the issue was presented to the [circuit] court.”). 

Instead, on appeal, he argues that we can use our authority under WIS. STAT.
No. 2019AP730

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§ 752.35 to order a new trial on grounds that his newly discovered evidence claim 

establishes a manifest injustice. 

¶26 WISCONSIN STAT. § 752.35, however, provides that we may order a 

new trial in the interest of justice only on two grounds: “that the real controversy 

has not been fully tried, or that it is probable that justice has for any reason 

miscarried[.]” Because James has not argued that either of these grounds apply 

and because we have already concluded that his evidence does not satisfy the 

newly discovered evidence test, this claim fails. 

¶27 Accordingly, we affirm the order of the postconviction court 

denying James’s WIS. STAT. § 974.06 motion without a hearing.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.