COURT OF APPEALS

DECISION

DATED AND FILED

July 28, 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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2017AP2288-CR Cir. Ct. No. 2005CF381

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

STEVEN A. AVERY,

 DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Manitowoc County: 

ANGELA W. SUTKIEWICZ, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

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. 2017AP2288-CR

2

¶1 PER CURIAM. In 2007, following a jury trial, Steven A. Avery 

was convicted of first-degree intentional homicide, party to the crime, and 

possession of a firearm by a felon. We affirmed his convictions on appeal. The 

issues in this new case concern collateral proceedings: whether the circuit court 

erred in denying Avery’s WIS. STAT. § 974.06 (2019-20)1 motion and two 

supplemental motions without a hearing, as well as his motions to vacate and for 

reconsideration of the first of these motions. We hold that Avery’s § 974.06 

motions are insufficient on their face to entitle him to a hearing and that the circuit 

court did not erroneously exercise its discretion in denying the motions to vacate 

and for reconsideration. Accordingly, we affirm.

OVERVIEW

¶2 We previously summarized the facts of this case in our decision on 

Avery’s direct appeal, see State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 

N.W.2d 216, and we will discuss below those facts relevant to his collateral attack 

on his conviction. But for context, this case began in early November 2005 with 

the disappearance of Teresa Halbach, a twenty-five-year-old professional 

photographer. Volunteer searchers found Halbach’s RAV4 on the forty-acre site 

of Avery’s Auto Salvage, a salvage yard business where Avery and other family 

members lived and worked. It was believed that Halbach had photographed

vehicles at this site several days earlier, per Avery’s request. According to State 

witness Bobby Dassey, Halbach was last seen walking towards Avery’s trailer. 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2017AP2288-CR

3

¶3 After finding the RAV4, police searched the Avery property and, 

over the course of the next four months, discovered and identified evidence 

including: burned bone fragments in and around a burn pit, with DNA matching

Halbach’s; both Avery’s and Halbach’s blood in the RAV4; the remnants of 

electronic devices and a camera, the same models as Halbach’s, in a burn barrel; 

Halbach’s RAV4 key in Avery’s bedroom, with Avery’s DNA on it; Avery’s 

DNA on the hood latch of the RAV4 (deposited, the State later claimed, by 

Avery’s sweaty hands); and a bullet and bullet fragments in Avery’s garage, 

containing Halbach’s DNA. 

¶4 The case was tried over a five week period in February and March of 

2007. The State’s theory was that Avery shot Halbach in the head, in his garage, 

and threw her in the cargo area of the RAV4. He then burned the electronics and 

camera, cremated Halbach in a burn pit, transferred the remains to a burn barrel,

and hid the RAV4 until he could crush it in the Avery car crusher. The defense 

argued that law enforcement was biased against Avery, who was pursuing a 

wrongful conviction lawsuit against Manitowoc County and the Sheriff’s 

Department,

2

and, as a result, planted evidence implicating Avery. The real killer, 

the defense argued, took advantage of this “investigative bias” to also plant 

evidence on the Avery property, once early media publicity made it clear that 

Avery was a key suspect. 

¶5 The jury found Avery guilty of first-degree intentional homicide and 

felon in possession of a firearm. Avery received a life sentence without the 

 

2

 Avery was wrongfully convicted of a 1985 sexual assault and was exonerated in 2003 

on the basis of DNA evidence linking the crime to another person. 
No. 2017AP2288-CR

4

possibility of extended supervision. In 2009, Avery commenced his direct appeal 

by filing a motion for postconviction relief, pursuant to WIS. STAT. § 974.02, 

requesting a new trial. That motion was denied, Avery appealed, and this court 

affirmed in the aforementioned decision. See Avery, 337 Wis. 2d 351, ¶3.

¶6 In 2013, Avery filed a pro se WIS. STAT. § 974.06 motion (the 2013 

motion), requesting a new trial. That motion was denied, and Avery appealed. 

That appeal was stayed and later dismissed on Avery’s motion, shortly after he 

initiated the postconviction proceedings that are the subject of this appeal. In 

2017, Avery filed the first of the six motions that are the subject of this appeal.3 

These motions will be analyzed individually, with further discussion of relevant 

law, but some basic principles apply generally. 

¶7 WISCONSIN STAT. § 974.06 provides a mechanism for vacating, 

setting aside, or correcting a sentence once the time for direct appeal has passed, 

on constitutional or jurisdictional grounds or where “the sentence was in excess of

the maximum authorized by law or is otherwise subject to collateral attack.” 

Sec. 974.06(1); State v. Romero-Georgana, 2014 WI 83, ¶32, 360 Wis. 2d 522, 

849 N.W.2d 668. Section 974.06(4),4 however, creates a procedural barrier to 

 

3

 Avery’s appeal is from two orders: the circuit court’s October 3, 2017 order denying 

his June 2017 postconviction motion and the court’s November 28, 2017 order denying his 

motions to vacate and for reconsideration of the June 2017 motion. We address these as Motions 

#1 through #3. After filing his appeal, Avery moved to supplement the appellate record, and to 

stay the appeal and remand, in two separate motions. We retained jurisdiction and directed Avery 

to raise his claims to the circuit court in the form of supplemental postconviction motions. We 

address these as Motions #4 and #5. In April 2021, Avery filed a motion to this court to stay his 

appeal and remand. We have not yet acted on that motion, so we address and decide it as Motion 

#6.

4

 In full, WIS. STAT. § 974.06(4) states:

(continued)
No. 2017AP2288-CR

5

review, in that it requires the defendant to raise all grounds for relief in his or her 

first (postconviction or appellate) motion. State v. Balliette, 2011 WI 79, ¶¶35-36, 

336 Wis. 2d 358, 805 N.W.2d 334. Thus, a defendant is normally barred from 

raising issues in a § 974.06 motion that were or could have been raised on direct 

appeal or in a previous § 974.06 motion. State v. Escalona-Naranjo, 185 Wis. 2d 

168, 181-82, 517 N.W.2d 157 (1994). An exception to this rule exists where the 

defendant can show a “sufficient reason” for not raising the issue in any prior

postconviction proceeding. Id.; § 974.06; Romero-Georgana, 360 Wis. 2d 522, 

¶¶48-50. 

¶8 Where, as here, a defendant appeals the circuit court’s denial of a 

WIS. STAT. § 974.06 motion without an evidentiary hearing, then the question 

before us is narrow: whether remand for a hearing is warranted because the circuit 

court erred in denying the motion on its face. See Balliette, 336 Wis. 2d 358, ¶38. 

Pursuant to § 974.06(3)(c), the court shall “[g]rant a prompt hearing” unless “the 

motion and the files and records of the action conclusively show that the 

[defendant] is entitled to no relief.” Our supreme court has also determined, 

however, that a baseline level of specificity applies to all postconviction motions, 

including those under § 974.06. See Balliette, 336 Wis. 2d 358, ¶¶42-43, 58-59.

Thus, in order for the reviewing court to meaningfully assess the claim, the 

 

 All grounds for relief available to a person under this section 

must be raised in [the defendant’s] 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.
No. 2017AP2288-CR

6

defendant must allege “sufficient material facts—e.g., who, what, where, when, 

why, and how—that, if true, would entitle [the defendant] to the relief he [or she]

seeks.” State v. (John) Allen, 2004 WI 106, ¶¶2, 23, 274 Wis. 2d 568, 682 

N.W.2d 433; Romero-Georgana, 360 Wis. 2d 522, ¶37. This requirement 

promotes finality once the defendant has been convicted and sentenced,

“minimize[s] time-consuming postconviction hearings unless there is a clearly 

articulated justification for them,” and recognizes that “the pleading and proof 

burdens ... have shifted to the defendant in most situations after conviction.”

Balliette, 336 Wis. 2d 358, ¶¶53, 58. Accordingly, in the context of a § 974.06 

motion, the defendant must describe, with specificity, his or her “sufficient 

reason” for failing to raise the claim in any earlier proceeding—that is, the 

defendant must show why his or her claim is not procedurally barred under § 

974.06(4).

5

 See Romero-Georgana, 360 Wis. 2d 522, ¶37.

¶9 We will further discuss some of the contours of this “sufficient 

reason” exception below, but one point bears mentioning here: ineffective 

assistance of postconviction counsel can be, and often is, cited as the reason for 

the defendant’s not bringing some claim on direct appeal. The specificity 

requirement, however, applies just as much in this context. The defendant cannot 

merely present legal conclusions, summarily arguing that postconviction counsel 

was ineffective for failing to bring the claims he or she now views as meritorious. 

Id., ¶¶36, 42. Instead, to be entitled to a hearing, the defendant must raise 

sufficient material facts demonstrating prior counsel’s ineffectiveness—that is, 

 

5

 Of course, a defendant is not required to do so when there has been no prior 

postconviction proceeding. See State v. Romero-Georgana, 2014 WI 83, ¶35, 360 Wis. 2d 522, 

849 N.W.2d 668
No. 2017AP2288-CR

7

that counsel was constitutionally deficient and that such performance was 

prejudicial to the defendant. Id., ¶¶37-39, 56; see Strickland v. Washington, 466 

U.S. 668, 687 (1984). Importantly, to show deficiency in this context, the 

defendant must allege sufficient facts showing that his or her new claim is “clearly 

stronger” than the claims postconviction counsel in fact brought. RomeroGeorgana, 360 Wis. 2d 522, ¶¶45-46.

¶10 Whether the circuit court erred in not ordering a hearing involves 

two potential inquiries, with separate standards of review. The circuit court must

hold a hearing where the motion is sufficient on its face, unless the record as a 

whole otherwise conclusively demonstrates that the defendant is not entitled to 

relief. Balliette, 336 Wis. 2d 358, ¶¶18, 50; State v. Howell, 2007 WI 75, ¶¶75-77 

& n.51, 301 Wis. 2d 350, 734 N.W.2d 48. Whether a WIS. STAT. § 974.06 motion 

meets this standard—including whether there is a “sufficient reason” for 

overcoming the procedural bar of Escalona-Naranjo—is a question of law that we 

review de novo. Romero-Georgana, 360 Wis. 2d 522, ¶30. If, on the other hand, 

the motion does not raise sufficient facts, “or presents only conclusory allegations, 

or if the record conclusively demonstrates that the defendant is not entitled to 

relief,” then the circuit court has the discretion to grant or deny a hearing. 

Balliette, 336 Wis. 2d 358, ¶18 (quoting John Allen, 274 Wis. 2d 568, ¶9). In 

such case, we review for an erroneous exercise of discretion. Romero-Georgana, 

360 Wis. 2d 522, ¶30.

MOTION #1: JUNE 2017 MOTION

¶11 In August 2016, Avery, now represented by counsel, brought a 

motion for postconviction scientific testing. In November 2016, the circuit court 

granted the motion, permitting Avery to conduct independent testing of nine trial 
No. 2017AP2288-CR

8

exhibits: seven samples of bloodstain cuttings, swabs, or blood flakes taken from 

Halbach’s RAV4; Halbach’s RAV4 key; and a 1996 sample of Avery’s blood. 

¶12 Based largely on the results of this testing and other investigations, 

Avery filed a WIS. STAT. § 974.06 motion in June 2017 (the June 2017 motion), 

requesting a new trial. His motion raises a number of claims6falling into three

categories for purposes of overcoming the Escalona-Naranjo procedural bar. 

First, Avery alleges that trial counsel was ineffective for failing to fully 

investigate, or present expert testimony in support of, his theory that he was 

framed. Second, he brings several claims based on alleged Brady7 violations. 

Third, he raises claims based on the results of new investigations of a bullet, the 

hood latch swab of the RAV4, and the RAV4 key, all of which he characterizes as 

newly discovered evidence.

¶13 The circuit court found that most of these claims were procedurally 

barred under Escalona-Naranjo because Avery had not alleged a “sufficient 

reason” for not raising them in his 2013 motion or on direct appeal. See 

Escalona-Naranjo, 185 Wis. 2d at 181-82. The court further held that the claims 

based on “new scientific tests,” when considered in the context of the full record, 

did not allege sufficient facts that, if true, would entitle Avery to relief. See 

Romero-Georgana, 360 Wis. 2d 522, ¶37. The court noted that the new reports on 

 

6

 Avery reframes some of these claims and arguments on appeal, but our review is of the 

sufficiency of the underlying motion. We analyze that motion on its face, deeming new or newly 

argued issues forfeited. See State v. Huebner, 2000 WI 59, ¶¶10-12 & n.2, 235 Wis. 2d 486, 611 

N.W.2d 727. In addition, some of Avery’s claims, such as his allegations of prosecutorial 

misconduct, are not renewed on appeal; these we deem abandoned and will not discuss. See A.O. 

Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998). These 

principles apply to our analyses of Avery’s subsequent motions.

7

 Brady v. Maryland, 373 U.S. 83 (1963).
No. 2017AP2288-CR

9

the bullet, hood latch swab, and key were “equivocal in their conclusions” and 

“ambiguous”; therefore, given “the totality of evidence submitted at trial ... it 

cannot be said that a reasonable probability exists that a different result would be 

reached at a new trial based on these reports.” Accordingly, the court denied

Avery’s motion without a hearing.

¶14 We review the sufficiency of this motion de novo; if we determine 

that Avery was not entitled to a hearing as a matter of law, we then review the 

circuit court’s decision to deny him a hearing for an erroneous exercise of 

discretion. See id., ¶30. The first, threshold step in this analysis is determining 

whether Avery has stated a sufficient reason for not raising these claims in his 

2013 motion and on direct appeal. 

Ineffective Assistance of Trial Counsel 

¶15 Avery’s claims relating to ineffective assistance of trial counsel are 

not—and cannot—be based on new or newly disclosed evidence unavailable to 

trial counsel. By definition, these claims are based on alleged errors of trial 

counsel, the argument being that Avery was thereby denied his constitutional right 

to counsel. As with any WIS. STAT. § 974.06 claim, Avery must show that there 

was a “sufficient reason” that these claims were not raised on direct appeal and in 

his 2013 pro se motion. See Escalona-Naranjo, 185 Wis. 2d at 181-82. And to 

establish a “sufficient reason” for not raising ineffective assistance of trial counsel

claims on direct appeal, Avery must show that his new claims are “clearly 

stronger” than the claims postconviction counsel actually brought. See RomeroGeorgana, 360 Wis. 2d 522, ¶¶45-46. 

¶16 We begin by considering whether Avery has shown a sufficient 

reason for not having raised these claims in his 2013 pro se petition. We then turn 
No. 2017AP2288-CR

10

to whether Avery has shown a sufficient reason for not raising these claims on 

direct appeal. It is at this point that the Escalona-Naranjo analysis dovetails with 

the merits of Avery’s ineffective assistance of trial counsel claims, because if his

new claims are facially insufficient as a matter of law, then postconviction counsel 

cannot have been ineffective for failing to raise them on direct appeal. Therefore, 

after we analyze the potential procedural bar of the 2013 petition, we turn directly 

to whether Avery’s remaining claims demonstrate a reasonable probability that, 

but for trial counsel’s unprofessional errors, he would not have been convicted at 

trial. See Strickland, 466 U.S. at 694.

Sufficient reason for failure to raise the claims in the 2013 motion

¶17 As a starting point, although Avery may argue ineffective assistance 

of postconviction counsel as a sufficient reason for not raising these claims on 

direct appeal, that argument is not available to excuse failings in his 2013 motion. 

That is because Avery did not have a constitutional right to counsel following his 

direct appeal. As our supreme court recently observed, there is no constitutional 

right to counsel on a collateral attack and, consequently, the “vast majority” of 

WIS. STAT. § 974.06 motions are filed by pro se litigants. See State ex rel. Wren 

v. Richardson, 2019 WI 110, ¶27 & n.21, 389 Wis. 2d 516, 936 N.W.2d 587. The 

exception would swallow the rule if the mere assertion of pro se status were 

sufficient to overcome the procedural barrier of Escalona-Naranjo. This legal 

point precludes successive postconviction motions from turning into something 

akin to Russian nesting dolls, wherein a litigant can simply allege a continuous 

series of ineffective assistance of counsel claims to justify previous failures to 

raise an issue. Instead, where there are successive § 974.06 motions, any new 

motion must be based on something other than ineffective assistance of 

postconviction counsel. 
No. 2017AP2288-CR

11

¶18 Avery appears to recognize this point, foregoing any claim based on 

the mere fact that he was without counsel. Nonetheless, his June 2017 motion 

largely focuses on the quality of his self-representation, providing the following 

justification for not raising any of his current claims in his pro se 2013 motion:

[N]umerous unique circumstances are present here that 

provide sufficient reasons the current claims were not 

previously presented. Mr. Avery had no way of knowing 

the factual and legal basis [for] the claims set forth herein. 

As a learning disabled, indigent prisoner, Mr. Avery simply 

could not have known them. His attempt to file a 

meritorious pleading was thwarted by his lack of legal 

knowledge.

The current motion is the product of over a thousand hours 

of attorney time, hundreds of hours expended by private 

investigators, numerous consultations with experts, the 

expenditure of funds to retain those experts, and more. To 

expect an indigent prisoner acting pro se to compile a 

meritorious motion under these circumstances would be 

unreasonable. Mr. Avery’s lack of legal knowledge, 

cognitive deficiencies and the complexity of this unique 

case provide the sufficient reason that the current claims 

should be addressed on the merits. 

Thus, we construe Avery to offer six (somewhat overlapping) explanations that, 

taken together, might provide a sufficient reason for not raising his claims in 2013: 

(1) he was unaware of the legal basis for the claims, (2) he was unaware of the 

factual basis for the claims, (3) he was acting pro se, (4) he was indigent, (5) he 

has a learning disability, and (6) this case is particularly complex.

¶19 These explanations do not justify Avery’s failure to bring the 

majority of his claims. Again, the quality of Avery’s representation in his prior 

motion cannot in and of itself constitute a sufficient reason for not raising an issue 

earlier. Accordingly, we reject Avery’s first argument that he “lacked awareness 

of the legal basis for a claim.” “Lack of awareness of the legal basis for a claim” 

is a term of art that does not merely mean that Avery was not a lawyer or lacked 
No. 2017AP2288-CR

12

legal knowledge. Rather, it means that he could not previously have anticipated a 

change in the substantive law that opened up a new basis for collateral attack. See 

State v. (Aaron) Allen, 2010 WI 89, ¶44, 328 Wis. 2d 1, 786 N.W.2d 124; State v. 

Howard, 211 Wis. 2d 269, 287-88, 564 N.W.2d 753 (1997), overruled on other 

grounds by State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 633 N.W.2d 765. 

Here, Avery’s claims are based on well-settled law. See, e.g., Romero-Georgana, 

360 Wis. 2d 522, ¶¶39-41.

¶20 As to reasons (2) through (6), Avery gives us bare-bones factual 

conclusions but does not meaningfully explain why the circumstances he describes 

precluded him from raising most of these issues earlier. See John Allen, 274 

Wis. 2d 568, ¶¶12, 23. Regarding reason (2), unawareness of the factual basis of 

the claims, Avery does not explain, and we cannot envision, why he did not have 

all the facts necessary in 2013 to raise these claims (which, after all, are premised 

on the further investigation of evidence and witnesses known to Avery at the time 

of trial). See State v. Tolefree, 209 Wis. 2d 421, 426, 563 N.W.2d 175 (Ct. App. 

1997). As to reason (3), as explained above, a defendant’s pro se status, standing 

alone, cannot excuse his or her failure to raise claims in a WIS. STAT. § 974.06 

motion. 

¶21 With one exception—discussed below—Avery’s remaining reasons 

are similarly deficient. Avery simply claims that he has a learning disability and 

was indigent in 2013, and that his case is complex. He does not cite any law, or 

develop any detailed argument, as to why these facts, alone or taken together, 

explain his failure to raise these claims. It appears well established from federal 

habeas law, from which we can borrow, that reasons such as these are not the sort 

of grounds on which a procedural bar can be avoided. See Harris v. McAdory, 

334 F.3d 665, 668-69 (7th Cir. 2003) (petitioner’s pro se status, borderline mental 
No. 2017AP2288-CR

13

retardation, and organic brain dysfunction did not provide sufficient cause to 

excuse procedural default of ineffective assistance claim; cause must be based on 

an “external impediment”). 

¶22 The one exception we will recognize concerns Avery’s contention 

that, on his own, it would have been impossible for him to have undertaken the 

extensive investigations later carried out by current postconviction counsel, which 

resulted in new theories as to how he was framed and additional factual support 

for previous theories. For example, if Avery believed that forensic testing would 

have shown that his DNA was planted on the RAV4 key, he of course could have

raised the issue in his 2013 motion. But to do so with any chance of success, he 

would have had to allege that postconviction counsel was ineffective for not 

raising an ineffective assistance of trial counsel claim on that basis, and to succeed 

on that claim, he would have had to show that this new claim was “clearly 

stronger” than those actually brought on direct appeal. See Romero-Georgana, 

360 Wis. 2d 522, ¶¶45-46. Absent forensic testing supporting the basis for such a 

showing, this would be an all but impossible task. Thus, “unique circumstances” 

might exist wherein a pro se defendant is unable to perform or pay for an 

investigation but later gains the resources to uncover new material facts and 

develop alternative theories of the crime and, on that basis, can claim a sufficient 

reason for not previously raising claims based on those theories. We do not 

perceive the policies underlying Escalona-Naranjo—namely, the need for finality 

in litigation—to preclude this result. Indeed, to hold otherwise could unfairly 

punish defendants who bring postconviction motions based on all facts known to

or reasonably discoverable by them. For Escalona-Naranjo purposes, claims 

based on newly conducted investigations, which could not have been previously 

undertaken, would appear to be little different than claims based on newly 
No. 2017AP2288-CR

14

discovered evidence, see ¶43, and we will treat them as such in determining 

whether they are procedurally barred by virtue of Avery’s prior pro se 

postconviction motion. 

¶23 That said, the majority of Avery’s ineffective assistance of trial 

counsel claims are not based on investigations that Avery, now represented by 

counsel, was only recently able to perform.

8

 On the other hand, we have identified

 

8 There are a number of claims, some overlapping, that cannot be said to be based on 

new scientific or forensic experiments or investigations by Avery’s experts, and which we 

therefore will not address except to list here. Several of these claims relate to issues that Avery’s 

new experts did explore—and which we discuss in more detail below—but the claims in this list 

are not themselves dependent on the results of new investigations. Several of these claims also 

appear, superficially, to be based on some new test or experiment (such as a recreation with a key 

and a bookshelf), but, crucially, these claims are not dependent on Avery’s ability to hire new 

experts, spend money on new tests, etc. We are allowing Avery to overcome the procedural bar 

of his 2013 petition by demonstrating that he did not have the resources to earlier uncover the 

factual bases for his claims, but this cannot extend to simple experiments or recreations that 

require no expert contribution and/or that could have been easily conducted at some point prior. 

(continued)
No. 2017AP2288-CR

15

seven claims, all premised on the results of forensic testing, that could conceivably 

fall in this category. So as to address, as nearly as allowable, the merits of his

motion, we will assume that Avery has alleged a sufficient reason for not raising 

these seven claims in his 2013 motion. These claims are that trial counsel was 

ineffective for failing to:

1. Present a blood spatter expert, who would have found

that Avery’s blood was planted in the RAV4. 

2. Present a blood spatter expert, who would have found

that Halbach was not thrown in rear of the RAV4 after 

being fatally injured. 

3. Present a blood spatter expert, who would have 

determined that the theory counsel presented at trial as 

 

These claims are that trial counsel was ineffective for failing to: (1) cross-examine some 

of the State’s expert witnesses instead of retaining their own; (2) thoroughly investigate other 

suspects so as to identify a suspect meeting the requirements of State v. Denny, 120 Wis. 2d 614, 

357 N.W.2d 12 (Ct. App. 1984); (3) use available evidence supporting the theory that the RAV4 

was moved onto Avery’s property by the real killer; (4) investigate Avery’s pre-trial belief that 

his blood was taken from blood drippings in his trailer sink and planted in the RAV4 (this claim, 

standing alone, does not rely on new investigations; we discuss related claims below); (5) present 

a DNA expert’s opinions about blood being planted in the RAV4 (Avery does not indicate that 

current postconviction counsel retained such an expert; counsel did retain a “blood spatter 

expert,” whose findings form the basis for other claims discussed below); 

(6) demonstrate that Halbach’s key was planted in Avery’s bedroom, by recreating how the key 

was found; (7) demonstrate that the RAV4 key found in Avery’s trailer was a subkey or 

secondary key, as should have been evident from the 1999 Toyota RAV4 manual; (8) detect and 

raise a Fourth Amendment challenge regarding DNA testing that allegedly violated the scope of a 

search warrant; (9) investigate a “chain of custody fabrication” that allegedly allowed law 

enforcement to illegally collect and then plant Avery’s DNA on the RAV4 hood latch (we discuss 

below claims based on the results of experiments on the RAV4 hood latch); (10) present an expert 

on police practices and investigations, who would have demonstrated errors in the handling of the 

investigation; (11) conduct “a simple experiment” to demonstrate that a witness could not have 

smelled burning plastic (Halbach’s electronics and camera) in Avery’s burn barrel, as the witness 

testified to at trial; and (12) investigate “a variety of topics,” all based on evidence known to 

counsel before trial. Avery also argues that Halbach’s ex-boyfriend was the real killer, but he 

does not present any cognizable claim based on this argument. That is, Avery speculates that the 

ex-boyfriend meets the Denny “legitimate tendency” test for introducing trial evidence that a 

third party committed the crime, but without pointing to any true newly discovered evidence, 

explaining why trial counsel rendered ineffective assistance during his Denny hearing in this 

regard, or otherwise demonstrating why such conclusion entitles him to a new trial. 
No. 2017AP2288-CR

16

to how Avery’s blood was planted in the RAV4 was 

untenable. 

4. Present a trace materials expert, who would have found

that the RAV4 key recovered from Avery’s bedroom

was Halbach’s subkey or secondary key.

5. Present a DNA expert, who would have found that 

Avery’s DNA was planted on the subkey by law 

enforcement. 

6. Present a DNA expert, who would have found that

Avery’s DNA was planted on the RAV4 hood latch. 

7. Present a forensic fire expert, who would have found 

that Halbach’s body was not burned in Avery’s burn pit 

Merits of Avery’s claims of ineffective assistance of trial counsel

¶24 We now turn to whether Avery’s ineffective assistance of trial 

counsel claims have alleged “sufficient material facts—e.g., who, what, where, 

when, why, and how—that, if true, would entitle [him] to the relief he seeks,” see

John Allen, 274 Wis. 2d 568, ¶2, bearing in mind that he is not entitled to a 

hearing where the record conclusively demonstrates otherwise, see Balliette, 336 

Wis. 2d 358, ¶18. In short, Avery must show that a hearing would not be 

frivolous. See Romero-Georgana, 360 Wis. 2d 522, ¶64.

¶25 Avery cannot make this showing. First, he has wholly failed to 

demonstrate deficient performance: that trial counsel’s “representation fell below 

an objective standard of reasonableness” by counsel’s not retaining experts similar 

to those he later retained. See Romero-Georgana, 360 Wis. 2d 522, ¶40 (citation 

omitted). Avery apparently assumes that his findings speak for themselves and 

that, given the strength of his later claims, the necessity for such experts should 
No. 2017AP2288-CR

17

have been obvious at the time of trial.9 Avery also assumes, again without 

explanation, that any experts retained by trial counsel would have reached the 

same conclusions as his later experts. But even accepting these premises, Avery 

has not demonstrated prejudice: that “there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.” See id., ¶41 (quoting Strickland, 466 U.S. at 694). 

¶26 Avery’s first three claims concern trial counsel’s failure to retain a 

blood spatter expert. Avery argues in his motion that counsel was ineffective 

because such an expert would have found that his “blood was planted in the 

RAV4.” His retained expert’s actual findings, however, are not nearly so 

conclusive. The expert did not conclude that Avery’s “blood was planted” or rule 

out Avery as the source of the blood. Rather, he determined that the presence of 

Avery’s blood was “consistent with being randomly distributed from a source 

because his blood is present in some locations but absent in some [other] 

reasonably anticipated locations” and that “[t]he absence of blood stains in these 

 

9

 Relatedly, Avery fails to demonstrate how the defense strategies that trial counsel did 

pursue rendered counsel’s performance constitutionally deficient. As an example, he points to 

trial counsel’s failure to obtain a blood spatter expert but does not address why counsel’s chosen 

strategy for explaining the presence of his blood in the RAV4 represented deficient performance 

at the time of trial, without the benefit of hindsight. This is a repeated shortcoming in Avery’s 

briefing, both to the circuit court and on appeal, and represents exactly the type of “Mondaymorning quarterbacking” that we strive to avoid in evaluating a claim of ineffective assistance of 

counsel. See Weatherall v. State, 73 Wis. 2d 22, 25-26, 242 N.W.2d 220 (1976) 

(“[P]ostconviction counsel ... stress[es] what he would have done differently had he conducted 

the defense at time of trial. Our court has called this hindsight-is-better-than-foresight approach 

to be ‘Monday-morning quarterbacking’ and has made clear that ... it is the right of a defendant 

and trial counsel to select the particular defense, from among the alternatives available, upon 

which they elect to rely.” (footnotes and citation omitted)); Strickland v. Washington, 466 U.S. 

668, 689 (1984) (“Judicial scrutiny of counsel’s performance must be highly deferential. It is all 

too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse 

sentence, and it is all too easy for a court, examining counsel’s defense after it has proved 

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”).
No. 2017AP2288-CR

18

locations is inconsistent with an active bleeder” (the State alleged at trial that 

Avery’s finger was actively bleeding while he was in the RAV4). The expert 

further determined that the bloodstains were “consistent with an explanation other 

than Mr. Avery being in the RAV4 and depositing his blood in those locations 

with his actively bleeding cut finger.”10

¶27 Certainly, these conclusions tend to support Avery’s general theory 

that he was framed, and their presentation may have been useful at trial. But 

Avery’s burden in a postconviction motion is not merely to point to helpful 

evidence but to show how its introduction at trial could reasonably have led to a 

different outcome. See Strickland, 466 U.S. 668 at 694. He cannot meet this 

burden by misrepresenting the expert’s results as “demonstrating” that he was 

framed. Absent additional facts or argument, we cannot assume that such 

measured support for Avery’s frame-up theory would have led to an acquittal.

¶28 Next, Avery argues that counsel was ineffective because a blood 

spatter expert would have refuted the State’s narrative that Halbach was thrown in 

the rear of the RAV4 after being fatally injured. Avery asserts that, to the 

contrary, Halbach “was struck on the head after she opened the rear cargo door” 

and was then “struck repeatedly by” a mallet or hammer—without explaining why 

 

10

 For the purpose of this motion, we accept that these conclusions are based on sound 

methods. It is unclear, however, how this expert determined that a person actively bleeding in the 

RAV4 would have left a different blood pattern than what was found in Halbach’s vehicle. 

According to the expert’s affidavit referenced in the June 2017 motion, he recreated how blood 

could be taken from Avery’s sink and selectively planted in the RAV4. The June 2017 motion 

states that (presumably some different) “blood spatter experiments conducted with actual blood 

on the subject’s middle finger conclusively demonstrate that the blood would have been deposited 

on” additional locations within the RAV4. That experiment is not described in the referenced 

affidavit, however, so we do not know the methodology supporting this conclusion.
No. 2017AP2288-CR

19

an alternative finding as to how she was killed supports his theory that he was 

framed.

¶29 Third, Avery contends that a blood spatter expert could have advised 

counsel that its trial strategy for explaining the presence of his blood in the RAV4 

was flawed (i.e., that such strategy would have failed to persuade the jury). This 

assertion is entirely speculative; as a matter of law, such guesswork falls well short 

of demonstrating ineffective assistance of counsel.

¶30 Fourth, Avery argues that counsel was ineffective for not retaining a 

trace materials expert, who would have found that the RAV4 key recovered from 

Avery’s bedroom was Halbach’s secondary key or subkey. But it is, again, 

completely speculative to assume that the subkey was therefore planted (and not, 

instead, that Halbach herself was using her subkey and not her main key on the 

day of her death). 

¶31 Avery’s fifth and sixth claims concern the retention of a DNA 

expert. According to Avery, such an expert would have determined that his “DNA 

was planted on the key” by law enforcement. Avery again misstates the evidence. 

His expert analyzed DNA from “[a]n exemplar key, reportedly held by Mr. Avery 

as if to start a car, i.e., gripped by ungloved fingers for twelve (12) minutes.” The 

expert determined that ten times less DNA was deposited on the exemplar key 

than on the key recovered by law enforcement. The expert further concluded that 

“[i]f the ... key was indeed ‘enhanced,’ [i.e., tampered with] then it is likely that 

some ... personal item of Mr. Avery’s was used for this purpose,” such as “a 

toothbrush or a cigarette butt.” Thus, once again, the findings of Avery’s expert 

are significantly more ambiguous than what is presented in his motion. We have 

no reason to doubt the truth of these findings (although we note that the expert did 
No. 2017AP2288-CR

20

not observe Avery holding the key), but simply determining that Avery deposited 

significantly less DNA in a controlled experiment does not indicate that Avery 

could not or did not deposit more DNA under other conditions, and it certainly 

does not demonstrate that law enforcement planted DNA on the key. Thus, even 

accepting the truth of these new findings, we cannot conclude that there is a 

reasonable probability that their introduction at trial would have led to a different 

result.

¶32 Avery’s sixth claim is that counsel was ineffective for not retaining a 

DNA expert, who would have determined that DNA from Avery’s sweaty hands 

“was never deposited [by Avery] on the RAV4 hood latch,” demonstrating that 

“Mr. Avery was being framed.” In what is becoming a pattern, Avery has

misrepresented the facts. The DNA expert Avery has now hired did not determine 

that Avery “never deposited” the DNA and did not state that Avery was framed. 

Instead, the expert performed a series of experiments on an identical vehicle,

wherein volunteers opened the car hood using the hood latch. Only four of the 

fifteen volunteers deposited DNA, and those four deposited significantly less 

DNA than present in the swab from Halbach’s RAV4 hood latch. From this 

experiment, the expert extrapolated the possibility that law enforcement could 

have retrieved and relabeled a swab of Avery’s groin (which was collected and 

discarded for exceeding the scope of a search warrant) as coming from the hood 

latch. The expert admitted, however, that “the convenience of this explanation ... 

and the fact that it accounts for the physical findings observed from the analysis ... 

does not prove evidence tampering, or more precisely, evidence reassignment.” 

Thus, again, we are left with facts that, even if true, would not entitle Avery to 

relief: in a controlled experiment, the minority of volunteers who deposited sweat 

on the RAV4 deposited significantly less sweat than on the swab recovered by law 
No. 2017AP2288-CR

21

enforcement. There is no context to these findings—no showing of why Avery, 

under noncontrolled conditions, could not have deposited more sweat than the 

volunteers, much less any showing that the DNA was therefore planted. Without 

such context, this evidence is not exculpatory or even particularly relevant, and 

Avery’s attempt to link it to the alleged reassignment of his groin swab is wholly 

unsupported by any facts of record.

¶33 Avery’s seventh and final claim is that trial counsel was ineffective 

for not presenting a forensic fire expert, who would have found that Halbach’s 

“body was not burned in the Avery burn pit and [that] her bones were therefore 

planted.” Avery’s cited factual support once again does not live up to the advance 

billing. His forensic fire expert did state that he “disagree[d] with [the State’s 

expert’s] opinion that the main destruction of the body took place in” the Avery 

burn pit. But Avery does not explain why, from this conclusion, it follows that 

Halbach’s remains were planted, because he does not explain why he himself 

would have been unable to cremate some portion of Halbach’s body in another 

location—including in his burn barrel, where additional bone fragments were 

found. More important, Avery does not explain where or how prejudice arises, 

given that his own forensic anthropologist testified to this same conclusion at trial. 

Avery’s expert further concluded that, contrary to the State’s theory at trial, 

Halbach’s body could not have been burned to the extent it was burned in only 

four hours. Again, this is a fact without context; at most, presenting such evidence 

at trial would have enabled the jury to weigh two competing expert opinions on 

how Halbach was cremated. Avery again has presented no reasoned basis for 

concluding that the outcome of trial would have been different.

¶34 In sum, the seven ineffectiveness claims in Avery’s June 2017 

motion that are based on new investigations fail on the merits. Avery has not 
No. 2017AP2288-CR

22

shown that trial counsel provided objectively deficient representation by not hiring 

experts similar to those he later hired. Instead, Avery merely assumes that the 

need for such experts should have been obvious at the time, based on the later 

findings of his own experts. These later findings, however, are either equivocal,

irrelevant, or both. In addition, Avery has not explained how these findings would 

have negated or undermined the cumulative effect of the other trial evidence. 

Thus, Avery has failed to show that, even if all these findings were admitted at 

trial, the result would have been different. Consequently, Avery has not alleged 

sufficient material facts entitling him to a hearing on his claims of ineffective 

assistance of counsel.

Brady Violations

¶35 Avery next argues that the State withheld favorable evidence in its 

possession, in violation of Brady v. Maryland, 373 U.S. 83 (1963). He first 

alleges that the State suppressed a voicemail recording that Halbach left on the 

answering machine of her photography client, whom she met on the same day that 

she visited Avery’s property. Next, he alleges that the State withheld an unedited 

video of flyover footage of Avery’s property, and instead released to Avery an 

edited version with just three minutes of footage. Finally, Avery argues that 

“investigators concealed their knowledge that [Halbach’s] RAV4 was driven onto” 

the property of Avery’s next door neighbor.

¶36 Avery does not claim that these alleged Brady violations were 

unknown and undiscoverable at the time of his 2013 motion or on direct appeal. 

His given explanation for not raising any of his new claims in 2013 is general and 

relates to his status as a pro se prisoner litigant; his explanation for not raising his 

new claims on direct appeal does not reference the Brady claims. Thus, Avery has 
No. 2017AP2288-CR

23

not overcome the procedural bar of Escalona-Naranjo by demonstrating a 

sufficient reason for not raising his Brady claims earlier. See Escalona-Naranjo,

185 Wis. 2d at 181-82.

¶37 In any case, Avery’s June 2017 motion does not sufficiently allege 

any Brady violations. “A defendant has a due process right to any favorable 

evidence ‘material either to guilt or to punishment’ that is in the State’s possession

....” State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468

(quoting Brady, 373 U.S. at 87). A defendant is entitled to a new trial based on 

the denial of such right by showing that: (1) the evidence is favorable to the 

defendant, either because it is exculpatory or impeaching; (2) the evidence was 

suppressed by the state, either willfully or inadvertently; and (3) the evidence is 

material. Wayerski, 385 Wis. 2d 344, ¶35. The standard for materiality is the 

same as under the prejudice prong of Strickland: “evidence is material only if 

there is a reasonable probability that, had the evidence been disclosed to the 

defense, the result of the proceeding would have been different.” State v. (Kevin) 

Harris, 2004 WI 64, ¶14, 272 Wis. 2d 80, 680 N.W.2d 737. 

¶38 Avery has not demonstrated any of the above elements for any of his 

claims, but what is clearest on its face is that this evidence—where it even 

exists—is immaterial. Avery’s first claim centers on the fact that, on the day 

Halbach visited his property, she left a voicemail that she could not locate the 

residence of one of her other photography clients, whom she also visited that day. 

Avery argues that had this voicemail been played at trial, it would have “refuted 

the[] theory that [Halbach’s] final appointment was [with] Mr. Avery.” At trial, 

however, the photography client testified that, after Halbach left the voicemail on 

the client’s answering machine, she found the client’s house, took photographs, 

and left within fifteen minutes. Then, approximately twenty to thirty minutes after
No. 2017AP2288-CR

24

Halbach left the voicemail (as established through her phone records), other 

witness testimony placed her as driving to, and then on, Avery’s property. The

voicemail is therefore consistent with the evidence, which is that Halbach left a 

voicemail, visited a client, and then visited Avery’s property. There is no basis for 

Avery’s assumption that the content of the voicemail would have refuted the 

State’s theory about when or how Halbach was killed. 

¶39 Avery’s next claim is that he received an edited version of a flyover 

video of his property that may have contained favorable evidence. As far as we 

can tell, this claim is based only on Avery’s unsubstantiated belief that a second 

video must exist because the airplane was in the air for four hours but the video he 

received was only three minutes long. There is no evidence of a Brady violation 

here because Avery merely speculates that evidence not even known to exist was 

suppressed. 

¶40 Finally, Avery argues that investigators knew, but did not disclose to 

him, that Halbach’s RAV4 was driven onto the property of Avery’s next door 

neighbor. It is difficult to follow this argument, but it is based on an affidavit from 

the neighbor, who does not state that the RAV4 was on his property, but rather

attests to a conversation with law enforcement agents in which they stated their 

belief as to how Halbach’s vehicle was driven onto Avery’s property (presumably, 

after Halbach’s death, but the agents could have been referring to Halbach’s 

driving route on the day of her death). Avery suggests that the information in the 

affidavit supports his claim that law enforcement framed him for the crime by 

driving the RAV4 through the neighbor’s property and planting it on his. This 

argument is unintelligible and, in any case, we cannot perceive any Brady

violation. There was no evidence here to suppress, and the facts in the affidavit 

are inconsequential.
No. 2017AP2288-CR

25

Newly Discovered Evidence

¶41 Finally, Avery raises two11 claims based on newly discovered 

evidence. He contends that “new scientific evidence demonstrates that the 

damaged bullet ... in Mr. Avery’s garage was not shot through [Halbach’s] head 

causing her death.” He also argues that, according to new tests, the swab labeled 

as coming from Halbach’s hood latch (containing Avery’s DNA) was not, in fact, 

taken from the hood latch.12

¶42 In theory, a defendant should be able to more easily overcome the 

Escalona-Naranjo procedural bar when basing claims on newly discovered 

evidence—which, after all, concern evidence not available in prior proceedings. 

This is not the case here, however, as is demonstrated by simply turning to the 

merits of Avery’s claims.

¶43 To obtain a new trial based on newly discovered evidence, a 

defendant must show that: “(1) the evidence was discovered after conviction; 

(2) the defendant was not negligent in seeking evidence; (3) the evidence is 

material to an issue in the case; and (4) the evidence is not merely cumulative.” 

State v. Edmunds, 2008 WI App 33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590

 

11

 A third claim repackages one of Avery’s ineffectiveness claims, arguing that the 

results of the experiment with the RAV4 hood latch (wherein volunteers touched an identical 

RAV4, which was then swabbed and tested) constitute newly discovered evidence. Avery cannot 

have it both ways. Above, we assumed for the purpose of this motion that trial counsel’s failure 

to obtain such results might constitute ineffective assistance of counsel. We will not now analyze 

a claim based on the premise that these same results were undiscoverable at the time of trial. In 

any case, it seems evident that trial counsel could have performed this simple experiment, so it is 

not apparent how the results of this experiment could constitute newly discovered evidence.

12

 This claim is based on different evidence than that forming the basis for Avery’s 

ineffective assistance claim on this same issue. 
No. 2017AP2288-CR

26

(citation omitted). If the defendant meets these criteria, then the circuit court must 

determine “whether a reasonable probability exists that a different result would be 

reached in a trial.” Id. (citation omitted). To be entitled to a hearing on 

postconviction claims of newly discovered evidence, the defendant must allege 

sufficient material facts satisfying these elements. John Allen, 274 Wis. 2d 568, 

¶2.

¶44 Avery cannot meet one of more of these elements for either of his 

claims. As a threshold matter, he has not shown that his purportedly “new”

evidence is, in fact, new. Avery asserts that the equipment yielding his test results 

was “previously unavailable,” was “new technology,” and/or was manufactured in 

2016. But aside from these cursory statements, Avery does not address whether 

technology available at the time of trial could have yielded the same results.13 

¶45 Beyond that, Avery’s evidence is largely irrelevant. The premise of 

his first claim is that, if the damaged bullet found in his garage did not deliver

Halbach’s fatal shot to the head, then he could not be the perpetrator. But the 

State never argued that either of the bullets recovered from Avery’s garage killed 

Halbach. At trial, the State showed that Avery’s gun fired the bullet and that the 

bullet had Halbach’s DNA on it. But the State did not argue that this specific

bullet entered Halbach’s skull or killed her (nor was it necessary that it do so in 

order to implicate Avery in her murder). There is nothing to suggest that shots 

fired into Halbach’s skull were the only shots fired at her or that every bullet fired 

 

13

 For example, the State points out that its trace expert at trial used the exact same 

technology and performed the same type of elemental analysis on charred bone fragments before 

trial that Avery’s expert performed in 2017. Both experts used a “scanning electron microscope 

with an energy dispersive x-ray analyzer” for their analysis, and there is no statement in the 

affidavit of Avery’s expert as to why his test could not have been performed in 2006. 
No. 2017AP2288-CR

27

at her contained skull fragments—there were, after all, eleven casings and only 

two bullets found in the garage. The presence of Halbach’s DNA on a bullet 

found in Avery’s garage is particularly damning evidence—regardless of whether 

it was the bullet that entered her skull—and strongly implicates Avery absent 

evidence that Halbach’s DNA was planted (a supposition that, even now, Avery 

has done little to develop). At the very least, Avery’s new evidence—if it in fact 

is new—is consistent with the State’s theory of the crime.

¶46 Avery next argues that his expert observed the hood latch swab and 

determined that “[s]wabs collected from the hood latches of two exemplar vehicles 

(a 2012 Rav 4 and a 2007 Volvo S60) each showed a considerably heavier loading 

of debris” than the swab from the RAV4 hood latch. The expert apparently 

reached this result, however, by observation alone, concluding that “[w]hereas 

particles on the [RAV4] hood latch swab ... could only be seen with the aid of a 

microscope, a swab from each exemplar vehicle showed a heavy, dark streak of 

collected debris that is clearly visible to the unaided eye.” We are left to wonder 

how new testing methods or equipment could possibly aid this analysis. In any 

event, the expert did not determine that the purported RAV4 swab “was not used 

to swab the hood latch,” as Avery claims—much less that this swab was 

reassigned or otherwise used to frame Avery. There is no possibility that the 

presentation of this evidence would have yielded a different trial result.

Conclusion As To The June 2017 Motion

¶47 Because Avery has not shown that he is entitled to a hearing on any 

claim, we review the circuit court’s denial of a hearing for an erroneous exercise 

of discretion. See Romero-Georgana, 360 Wis. 2d 522, ¶30. We find that the 

court did not err in this regard. We agree with the court’s assessment that, had 
No. 2017AP2288-CR

28

Avery’s “equivocal” and “ambiguous” conclusions been introduced at trial, there 

would have been no reasonable probability of a different result. The circuit court 

appropriately exercised its discretion.

¶48 We have given Avery the benefit of several doubts as to why he did 

not raise these claims earlier. Even considered on the merits, the claims asserted 

in his June 2017 motion are speculative, conclusory, and in some cases 

misleading. The circuit court did not err in denying these claims without a 

hearing.

MOTION #2: OCTOBER 2017 MOTION FOR RELIEF FROM ORDER

¶49 Three days after the circuit court denied his WIS. STAT.

§ 974.06 motion, Avery filed a motion for relief pursuant to WIS. STAT.

§ 806.07(1)(a). The stated basis for the motion was that, a month prior to the 

court’s order, defense counsel and prosecutors had agreed to additional testing of 

Halbach’s RAV4 and of bones found in the Manitowoc County gravel pit, that the 

parties had agreed that Avery would amend the June 2017 motion, and that Avery 

“intended to inform the court that an amended motion would be filed” but “did not 

anticipate the court filing its order” before he could do so.14

 

14

 On appeal, Avery implies that the State misled him about the need to expeditiously 

inform the circuit court of his wish to amend/supplement the June 2017 motion. For example, 

Avery states, “When current postconviction counsel inquired as to whether the circuit court 

should immediately be informed of the agreement, [the prosecutor] stated that once he had 

finalized the scheduling of the RAV-4 examination ... a stipulated order could be presented to the 

circuit court.” This statement appears to be Avery’s counsel’s own uncorroborated description of 

events; there is no basis in the record for this or any related argument that the State 

misrepresented the postconviction process. In any case, as the circuit court explained, the State 

cannot determine whether and how motions to the court are amended or supplemented, and Avery 

had no grounds for assuming otherwise. Moreover, this argument was not presented to the circuit 

court and is thereby forfeited. See Huebner, 235 Wis. 2d 486, ¶¶10-12 & n.2. Accordingly, we 

address this point no further. 
No. 2017AP2288-CR

29

¶50 The circuit court denied the motion, explaining that, after receiving 

the June 2017 motion, “[n]o communication” was made “requesting that the court 

withhold its final decision [or] indicating that the original motion was incomplete 

and would be supplemented.” The court acknowledged that the defense and 

prosecution might very well have discussed amending the June 2017 motion in 

anticipation of the court’s granting a hearing, but

the court was not informed of any such negotiations until 

after the final ruling in this matter had been issued. None 

of the agreements were submitted to the court for its 

approval until after the final decision was made in the 

defendant’s original motion. It is for the court, and not the 

parties, to determine if amendments to motions previously 

filed will be permitted [and] to establish scheduling for 

matters pending before it.... Agreements should have been 

submitted for approval of the court prior to the final 

decision on the original motion being reached. The defense 

cannot try to amend a motion that was filed without 

reservation only after it receives an adverse ruling. 

¶51 WISCONSIN STAT. § 806.07(1)(a) provides that the court “may 

relieve a party ... from a judgment, order or stipulation for ... [m]istake, 

inadvertence, surprise, or excusable neglect.” We review the circuit court’s

decision on a motion for relief under § 806.07(1) for an erroneous exercise of 

discretion, meaning we will sustain the court’s ruling where it applied the 

appropriate law to the facts on record so as to “achiev[e] a reasoned and 

reasonable determination.” Milwaukee Women’s Med. Serv., Inc. v. Scheidler, 

228 Wis. 2d 514, 524, 598 N.W.2d 588 (Ct. App. 1999) (citation omitted). 

¶52 As explained above, a movant is not entitled to an evidentiary 

hearing merely because he or she filed a WIS. STAT. § 974.06 motion. In the 

typical case, the circuit court will evaluate the facial sufficiency of the motion 

before ordering the State’s response or scheduling a hearing. See § 974.06(3); 

Romero-Georgana, 360 Wis. 2d 522, ¶¶30, 37. Thus, circuit courts routinely 
No. 2017AP2288-CR

30

receive and deny § 974.06 motions where there is no basis for a hearing; as one

would expect, courts are not required to, and generally do not, update the movant 

about when a decision on the motion is forthcoming. 

¶53 Avery appears to acknowledge these basic principles of 

postconviction procedure. Nonetheless, he argues that the circuit court 

erroneously exercised its discretion here because, in denying his motion for relief, 

it ignored the existence of a 2007 order.15 This 2007 “order on preservation of 

blood evidence and independent defense testing” directs the State to preserve 

swabs and bloodstain samples collected from the RAV4 and containing Avery’s 

DNA, and allows such items to be submitted for independent testing “without 

further order of this Court.” 

¶54 Avery’s argument with respect to the 2007 order misses the mark 

entirely. Even if all of the items the parties contemplated testing in 2017 had been 

described in this order, the order has no bearing on the presentation, timing, or 

amendment of any WIS. STAT. § 974.06 motion. The circuit court correctly 

concluded that it was not required to revisit its decision on the June 2017 motion 

upon being belatedly informed that Avery wished to amend that motion. Thus, the 

court did not erroneously exercise its discretion in declining to vacate an order 

adverse to Avery so as to allow amendment of “a motion that was filed without 

reservation.”

 

15 The State argues that this argument was forfeited because it was raised for the first 

time on appeal. We agree that, at the very least, the argument was not well developed below. For 

completeness, however, we will exercise our discretion to address this argument on the merits. 

See Huebner, 235 Wis. 2d 486, ¶¶10-12 & n.2.
No. 2017AP2288-CR

31

MOTION #3: OCTOBER 2017 MOTION FOR RECONSIDERATION

¶55 Shortly after filing his WIS. STAT. § 806.07 motion, Avery filed a 

motion to reconsider.

16

 As relevant to this appeal,17 he alleges that newly 

discovered evidence warrants reconsideration of the court’s denial of his 

June 2017 motion. 

¶56 A party may prevail on a motion for reconsideration by presenting 

newly discovered evidence, but such motion is not a platform “to introduce new 

evidence that could have been introduced” as part of the original proceeding. 

Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, 

Ltd., 2004 WI App 129, ¶¶44, 46, 275 Wis. 2d 397, 685 N.W.2d 853. The term 

“newly discovered” presupposes that the evidence was unknown at the time of 

final judgment—that is, it was not under the control or knowledge of the movant, 

or discoverable by reasonable diligence. See id., ¶¶46-48. “We review a trial 

 

16

 The motion to reconsider was followed by several subsequent “supplements,” in which 

the motion was revised. For convenience, we discuss these as a single motion.

17

 In addition to the arguments addressed in this section, Avery’s motion for 

reconsideration argues that the circuit court made manifest errors of fact and law in denying his 

June 2017 motion. We review the June 2017 motion in the first portion of this decision and 

conclude that the court did not err, except as noted in this footnote. Therefore, we address in this 

section only those arguments based on claims of newly discovered evidence. 

In its decision on the June 2017 motion, the circuit court mischaracterized Avery’s 

allegations relating to ineffective assistance of postconviction counsel. Avery raised these 

allegations so as to explain why his claims were not procedurally barred by Escalona-Naranjo, 

185 Wis. 2d 168, 517 N.W.2d 157 (1994) (that is, why he did not raise his claims on direct 

appeal). The circuit court misconstrued Avery to allege ineffective assistance of appellate

counsel and concluded that Avery was required to file a Knight petition with this court in order to 

do so. See State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992). On appeal, Avery 

correctly points out that this was an error. Regardless, our review of the sufficiency of the 

June 2017 motion is de novo, and we conclude that Avery did not demonstrate ineffective 

assistance of postconviction counsel. Therefore, the circuit court’s error was harmless.
No. 2017AP2288-CR

32

court’s decision on a motion for reconsideration under the erroneous exercise of 

discretion standard.” Id., ¶6.

¶57 A motion to reconsider on the basis of new evidence would seem to 

be of doubtful utility in cases, like this, where the movant is free to file successive 

motions. See WIS. STAT. § 974.06(2), (4). Nonetheless, we perceive no legal 

barrier to Avery’s bringing such a motion, and the State does not argue as much, 

except to point out that this motion cannot be the means of avoiding the procedural 

bar of Escalona-Naranjo. In this context, to be entitled to reconsideration on the 

basis of newly discovered evidence, the movant must show that the evidence was 

unknown and not reasonably discoverable when the first 

§ 974.06 motion was filed and that the evidence reasonably relates to those claims 

brought in the first motion. See Koepsell’s Olde Popcorn Wagons, Inc., 275 

Wis. 2d 397, ¶¶44, 46-48. Alternatively, the movant may simply bring a new 

§ 974.06 motion and demonstrate his or her “sufficient reason” for not raising the 

claim in the prior § 974.06 motion by showing that the evidence underlying that 

claim was then unknown and not reasonably discoverable. 

¶58 Avery makes no showing in his motion to reconsider as to why he 

could not, with reasonable diligence, have included this “new” evidence in his 

June 2017 motion. Instead, he uses this third motion as a vehicle for raising new 

claims. None of these claims or evidence, however, have any bearing on the 

claims raised in the June 2017 motion, so it is unclear which original claims the 

circuit court was being asked to reconsider, or why. In any case, the majority of 

this evidence cannot reasonably be considered unavailable or undiscoverable at the 
No. 2017AP2288-CR

33

time Avery filed his June 2017 motion.18 Nor, if we simply treat this motion as a 

new WIS. STAT. § 974.06 motion, does Avery demonstrate why these claims are 

 

18

 Avery’s motion for reconsideration raises claims based on evidence that cannot 

reasonably be considered “newly discovered” (i.e., unavailable and not discoverable through 

reasonable diligence at the time of the June 2017 motion). See Koepsell’s Olde Popcorn 

Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶¶44, 46-48, 275 

Wis. 2d 397, 685 N.W.2d 853. Therefore, we will not address these claims further, except to list 

and briefly discuss them here. These are that: (1) the State withheld evidence that Halbach’s 

vehicle was seen on the street days after her disappearance (claim based on 2017 affidavit of 

witness attesting that, in 2005, he observed a vehicle matching a missing person’s poster 

description of Halbach’s car and informed law enforcement of that fact, but with no showing that 

Avery was unable, through reasonable diligence, to discover this information prior to filing the 

June 2017 motion); (2) trial and postconviction counsel were ineffective for not presenting 

impeachment testimony on key witnesses, or, in the alternative, the State violated Avery’s right to 

due process by knowingly using false testimony at trial (claims based on evidence collected at the 

time of Halbach’s disappearance and presumably known to Avery at the time of trial, with no 

representation that Avery learned of this evidence only after filing the June 2017 motion and 

could not reasonably have discovered it earlier); (3) there is another possible suspect meeting the 

Denny test (claim based on evidence showing how long it takes to drive away from Avery’s 

property); (4) there is another possible suspect meeting the Denny test (claim based on evidence 

gathered by examining images found on a computer; Avery states that the computer search was 

the result of “2017 technology” but does not explain whether technology available earlier would 

have uncovered these images or why, through reasonable diligence, he could not have uncovered 

these images prior to filing the June 2017 motion); (5) alleged Brady violation based on 2005 

evidence purportedly withheld, concerning who might have had possession of Halbach’s day 

planner after her death (Avery does not explain when he received this evidence or why it was not 

reasonably discoverable prior to June 2017); (6) there is another possible suspect meeting the 

Denny test (claim based on statements made to police in 2005 about Avery’s sister, and not 

Avery, requesting that Halbach photograph a car on Avery’s property, but with no showing that 

this evidence was unknown or not reasonably discoverable prior to June 2017); (7) there is 

another possible suspect meeting the Denny test (based on evidence that Avery’s sister attempted 

to hide files on her computer that might link her son to the crime; this information was reported to 

the police prior to trial and Avery does not allege that he was unaware of this evidence at trial or 

explain why the evidence was not reasonably discoverable prior to June 2017). Motion #3 also 

contains arguments that are the subject of Motion #4, and which we will therefore discuss in the 

following section. 

Because these claims were brought in a motion to reconsider, we conclude only that the 

circuit court did not erroneously exercise its discretion in declining to revisit the June 2017 

motion in light of the content of this motion. Neither we nor the circuit court have squarely 

considered whether these claims are procedurally barred under Escalona-Naranjo or whether 

Avery pled sufficient material facts entitling him to a hearing (although our analysis overlaps 

with the former inquiry). Such consideration would have to come on a separately filed WIS.

STAT. § 974.06 motion, and we express no opinion as to whether such claims would be barred in 

the event such a motion is filed. 
No. 2017AP2288-CR

34

not procedurally barred under Escalona-Naranjo (setting aside the question of 

why the claims were not alleged in the June 2017 motion, Avery has not explained 

why they were not alleged in the 2013 motion or on direct appeal).19

¶59 We do note that buried in the motion are two claims based on 

evidence that appears on the face of the claims to be “newly discovered.” 

According to Avery, in October 2017, his sister, Barb Tadych (who lived on the 

Avery property and whose son, Bobby Dassey, Avery identifies as an alternative 

suspect in the crime) told him two pieces of information that would impeach her 

son’s testimony about last seeing Halbach walk toward Avery’s trailer on the day 

of her disappearance. In Avery’s view, his sister “admitted that she knew that 

[Halbach] had left the property” on the day in question. This evidence, however,

is equivocal and does not clearly establish that Halbach in fact left the property on 

the day of her death or that any witness was aware of or lied about this fact at 

trial.20 Moreover, the evidence does not bolster any claim in the June 2017 motion 

 

19

 On appeal, Avery inexplicably argues that the State is “estopped from raising ... 

procedural bar arguments” relating, presumably, to both this October 2017 motion to reconsider 

and his earlier June 2017 motion—based on the sole fact that the State represented in 

September 2017 that it would not oppose amendment of the June 2017 motion. Assuming 

without deciding that the doctrine of estoppel might apply to the postconviction process under 

some circumstances, here, the State’s representation clearly had no bearing on a motion already 

filed and, as a matter of law, could not relieve Avery of his burden in any subsequent WIS. STAT.

§ 974.06 motion to demonstrate why newly raised claims were not procedurally barred. 

20

 The first piece of evidence is recorded statements in an October 2017 phone call 

between Avery and Barb Tadych and her husband, Scott Tadych. Avery identifies the full 

relevant portion of the transcript as follows:

Steven Avery: Bobby’s home.

Barb Tadych : He wasn’t always home.

Steven Avery: Well, you—well, most of the time he was home.

Barb Tadych : No.

Scott Tadych: He doesn’t know fucking shit.

Steven Avery: And he said he [sic] left. She left.

Scott Tadych: That’s right.

(continued)
No. 2017AP2288-CR

35

so as to warrant reconsideration of that motion. Even viewed on its own merits, 

the evidence does not entitle Avery to a WIS. STAT. § 974.06 hearing because he 

has not shown that it is material. See Edmunds, 308 Wis. 2d 374, ¶13. At best, 

we have two unsworn statements by Barb Tadych that Dassey told her something 

that is potentially inconsistent with his trial testimony. This is hearsay that would 

be inadmissible at a new trial, meaning that it cannot constitute newly discovered 

evidence as a matter of law. See State v. Bembenek, 140 Wis. 2d 248, 253, 409 

N.W.2d 432 (Ct. App. 1987).

¶60 Avery chose to frame these claims in the context of a motion to 

reconsider, but without applying that legal standard or (in the alternative) 

explaining why he had a “sufficient reason” for not bringing the claims in previous 

motions, pursuant to Escalona-Naranjo. As discussed in the above section on the 

 

Barb Tadych : Yeah, she left.

Steven Avery: Yeah.

Barb Tadych : Yeah.

Steven Avery: Well, he didn’t testify for [sic] that.

Barb Tadych : [sighs]

The second piece of evidence is an October 2017 posting on Barb Tadych’s 

Facebook page. Avery identifies the full relevant portion of the posting as 

follows:

Barb Tadych: Well I have your answer for all of you 

that was wondering, just got off the 

phone with Bobby and I asked him and 

he told me that: He seen her 

[presumably, Halbach] pull in but that 

was it because he left to go hunting then. 

He said that is the truth.

[Commenter

or Facebook 

friend]: so he never seen her walk towards 

steven home

Barb Tadych: No.
No. 2017AP2288-CR

36

June 2017 motion, we are willing to give Avery the benefit of the doubt, where 

possible, as to why he did not raise certain claims in 2013 or on direct appeal. But 

we cannot ignore the law, and thus we cannot simply determine whether the merits 

of his motion-to-reconsider claims warrant an evidentiary hearing, where the only 

(narrow) question before us is whether the circuit court erroneously exercised its 

discretion in not reconsidering the June 2017 motion on the basis of purported new 

evidence contained within those claims.21 

¶61 We conclude that the circuit court did not erroneously exercise its 

discretion in denying this motion. The court noted that Avery provided no 

explanation for filing the June 2017 motion while “considerable investigation was 

still being conducted by the defense”:

Knowing that not all the facts were ... ready for 

presentation to the court, and with no deadline for filing his 

motion set by the court or statute, the defendant proceeded 

to file the motion prematurely....

The motion was pending before this court for a few months 

before the court issued its ruling. During that period, the 

defendant did not ask the court to stay its ruling pending 

the conclusion of testing, request time to supplement the 

motion or take any other action requesting that the court 

delay its final decision in this matter. The motion was 

submitted to this court and the court ruled on the motion.

 

21

 Although the merits of these claims are not properly before us, we have reviewed them 

in our broader review of this appeal. We note that the evidentiary basis for some of these claims 

is lacking. For example, one claim is based on Avery’s assertion that Ryan Hillegas, Halbach’s 

ex-boyfriend, later possessed a day planner that was in her car on the day of her death. The 

evidence Avery submits, however, does not and cannot reasonably be construed to support this 

conclusion. Moreover, other claims do not appear on their face to entitle Avery to a hearing. For 

example, one claim, as far as we can tell, is based on a recreation of what Halbach’s movements 

would have been had she driven away from Avery’s property on the date of her death. From this 

experiment—which is unsupported by any explanation as to how Avery might prove the 

underlying hypothetical scenario, that Halbach did in fact leave—Avery seeks to implicate Bobby 

Dassey and Scott Tadych, his brother-in-law, in Halbach’s murder. 
No. 2017AP2288-CR

37

This explanation is reasonable and sound, and represents an appropriate exercise 

of discretion.

MOTION #4: JULY 2018 SUPPLEMENTAL MOTION

¶62 Avery appealed from the circuit court’s October 2017 and November 

2017 orders denying his June 2017 motion and his motions to vacate and 

reconsider, respectively. In May 2018, Avery moved this court directly “to 

supplement the Record on Appeal with a CD disclosed to Defendant for the First 

time on April 17, 2018.” Avery asserted that supplementation of the appellate 

record was appropriate because the contents of the CD related to claims already 

presented to the circuit court. We stated that this assertion “misses the point, 

which is that we are not a fact-finding court and cannot consider items not 

presented to the circuit court.” We determined, however:

Based on the assertion that Avery recently received 

previously withheld discovery or other new information, 

we retain jurisdiction but remand this case to enable Avery 

to file an appropriate supplemental postconviction motion 

in the circuit court ... within thirty days of the date of this 

order. The circuit court shall hold proceedings on the 

supplemental postconviction motion within sixty days after 

the motion is filed.

¶63 In July 2018, Avery filed his motion to supplement (the July 2018 

motion), alleging a Brady violation.

22 Recall that, prior to trial, Avery 

unsuccessfully moved to introduce third-party liability evidence, pursuant to State 

v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). In his July 2018 

 

22

 The State points out that a motion already decided (i.e., the June 2017 motion) cannot 

be “supplemented” and that, therefore, the July 2018 motion is a successive motion. Regardless, 

this court has determined and ordered that the July 2018 motion (as well as the subsequent 

March 2019 motion, or Motion #5) shall be treated as a supplement to the June 2017 motion. 
No. 2017AP2288-CR

38

motion, Avery alleges that the State withheld significant evidence both favorable 

to his Denny motion and relevant for impeachment purposes: a final investigative 

report of Detective Mike Velie, saved on a CD (the Velie CD). Velie created the 

report through forensic examination of the hard drive of a computer used by 

Dassey, whom Avery identifies as a possible Denny suspect. The Velie CD 

contains “thousands of images” of violent pornography that, Avery argues, “reveal 

a propensity for sexual violence” by Dassey (Avery elsewhere attempts to explain

why, of several people who used the computer, only Dassey could have 

downloaded these images). The CD also contains “a timeline” that purportedly 

“impeaches [Dassey’s] trial testimony” and “criteria, word searches, registry, 

recovered pornography, internet history, windows registry, and all MSN 

messages.” According to Avery, he did not receive the Velie CD until April 2018.

¶64 The circuit court determined that there was no Brady violation 

because there was no evidence suppressed. We agree.23 It is undisputed that the 

computer was examined and its contents copied to seven DVDs. It is undisputed 

that Avery’s counsel received these seven DVDs prior to trial. Finally, it is 

undisputed that, with limited and irrelevant exception,24 the Velie CD does not 

 

23

 As this claim was to be treated as a supplemental motion, pursuant to this court’s 

order, Avery was not required to allege a “sufficient reason” under Escalona-Naranjo for not 

raising the claim in his June 2017 motion. We assume without deciding that Avery had a 

sufficient reason for not raising this claim in his 2013 motion or on direct appeal, based on the 

purported unavailability of the evidence. 

24

 Velie attests: 

The only information on the CD titled “Dassey computer, Final 

Report, Investigative Copy” that is not contained in the 7 DVDs 

would be the typical administrative and procedural files, folders, 

and techniques routinely used by a digital forensic examiner 

during a forensic examination of digital evidence.

(continued)
No. 2017AP2288-CR

39

contain any additional information than what is on the seven DVDs. 

Consequently, the Velie CD is not suppressed evidence but merely an 

investigative summary of evidence provided to Avery.

¶65 Avery appears to acknowledge these facts on appeal but argues that 

he should have had access to information derived from Velie’s “unique word 

searches,” pornographic images “refined” for relevancy, and the like. This is not 

the law: Brady on its terms applies to favorable and material suppressed evidence, 

and Avery has presented no authority extending this principle to the prosecution’s 

withholding of secondary compilations or analyses of such. See United States v. 

McGuinness, 764 F. Supp. 888, 896 (S.D.N.Y. 1991) (“Brady applies only to 

facts that are not already known to the defendant. The government need not 

facilitate the compilation of exculpatory material that, with some industry, defense 

counsel could marshall on their own.” (citations omitted)).

 

Avery’s computer expert attests that Avery did not receive “critical information” about how Velie 

analyzed the computer but does not conclude that the Velie CD contains additional information 

not provided to Avery:

In my opinion, based upon a reasonable degree of certainty in the 

field of computer forensic science, the CD contains information 

and files extracted from the 7 DVDs that, in Detective Velie’s 

opinion, were relevant to the investigation of Ms. Halbach’s 

murder. 

While the information contained on the CDs is derived from the 

forensic image contained across the DVDs, trial defense counsel 

was not provided critical information including the criteria used

by Detective Velie in performing his forensic computer 

examination as well as the results of that examination.

(Emphasis added.)
No. 2017AP2288-CR

40

¶66 Avery raises two related arguments concerning the disclosure of the 

DVDs themselves. He argues that the State deliberately misled him about the 

importance of the DVDs by stating in an email that they “did not include much of 

evidentiary value.” Even if this statement mischaracterized the evidence, 

however, an off-the-cuff description of disclosed evidence cannot form the basis 

for a Brady violation. Avery further argues that he was only provided the DVDs 

approximately one month before his Denny hearing, leaving him “completely 

impaired” in his ability to introduce relevant evidence in that proceeding. But this 

argument properly concerns alleged ineffective assistance of trial counsel (see 

below), because such conclusory statements do not adequately explain why trial 

counsel could not have analyzed the DVDs in time for the motion hearing, sought 

to postpone the hearing, or taken any number of other steps to effectively leverage 

this evidence.

¶67 In the July 2018 motion, Avery does indeed argue that trial counsel 

was ineffective for failing to forensically examine the seven DVDs prior to trial. 

He does so summarily, however, and in a manner that leaves us unable to 

meaningfully analyze this claim. Regarding potential use of this evidence in his 

Denny motion, Avery does not address the prejudice prong of the Strickland test, 

which, in our view, encompasses at least two key inquiries. To admit evidence at 

trial that Dassey could have killed Halbach, Avery would have had to provide 

some evidence at the pretrial Denny hearing directly connecting Dassey to the 

crime. See State v. Scheidell, 227 Wis. 2d 285, 296, 595 N.W.2d 661 (1999)

(evidence that another party committed the crime may be admissible pursuant to 

Denny if the defendant can show: (1) the third party’s motive, (2) the third party’s 

opportunity to commit the crime, and (3) some evidence directly connecting the 

third party to the crime). That Dassey possibly possessed violent pornographic 
No. 2017AP2288-CR

41

images might have conceivably satisfied a separate requirement, motive, but is 

insufficient in and of itself to allow admission of third-party liability evidence.25 

See id. Avery failed to meet the “direct connection” requirement in his original 

Denny motion and has not presented additional evidence on this point in Motion

#4. Thus, even assuming trial counsel was deficient in not analyzing the DVDs, 

Avery cannot demonstrate a reasonable probability of a different outcome at the 

Denny hearing or at trial.26 See Strickland, 466 U.S. at 694. 

¶68 Regarding the use of this evidence for impeachment purposes, even

accepting that the CD contains “a timeline that impeaches [Dassey’s] trial 

testimony” (we are skeptical of this point, see note 25), Avery does not explain

how impeaching Dassey about his use of the computer would have changed the 

 

25

 Although only tangentially relevant to our decision, we note that Avery’s counsel 

misrepresented some key facts underlying this claim in the motion to the circuit court and 

briefing to this court. Avery asserts that only Dassey could have downloaded the images, created 

folders containing photographs of Halbach, and “search[ed] for key terms relevant to the 

murder.” He states that Dassey “was the only individual at home” when this computer activity 

took place, but references for support only the affidavit of his computer expert, who does not and 

cannot opine on Dassey’s schedule, and a sheriff’s department interview with Dassey containing 

none of this information. Avery also characterizes the pornographic images as “bear[ing] a 

striking resemblance to [Halbach] and to the nature of the crime committed against her.” As far 

as we can tell, there is no support for this conclusion in the evidence on record. That Avery 

misrepresented the facts is immaterial to deciding his Brady and ineffectiveness claims. We 

point them out because of the high-profile nature of this case, the greater possibility that 

interested members of the public will read the briefing and motions, and the resulting need, where 

misrepresentations are particularly egregious, to note where Avery’s arguments wholly stray from 

the facts. 

26

 As discussed below, we are not addressing Avery’s most recent filing to this court (see 

our discussion of Motion #6), which seeks to directly connect Dassey to Halbach’s murder. If 

Avery wishes to raise that claim, he will need to bring a new WIS. STAT. § 974.06 motion. That 

motion would need to survive both Escalona-Naranjo scrutiny and be found to have merit—in 

which case, the evidence presented might supply the missing “direct connection.” In that event, 

the Velie CD evidence might become relevant to showing Dassey’s motive, and might bear on 

whether Dassey is, or should have been, a viable Denny suspect. We express no opinion on the 

merit of any such § 974.06 motion, as all such issues would be for the circuit court to decide in 

the first instance. 
No. 2017AP2288-CR

42

outcome of the trial. At most, the jury would have disbelieved Dassey’s testimony 

that, on the day Halbach last visited the Avery property: he saw Halbach walk 

towards Avery’s trailer, he did not see her leave the property, Halbach’s RAV4 

was in the driveway when he left to go hunting, and the RAV4 was gone when he 

returned several hours later (Avery identifies these as the key pieces of testimony). 

Certainly, this testimony bolstered the State’s theory that Halbach visited Avery 

on that day and did not leave the Avery property thereafter, but absent this 

testimony, the State still possessed significant forensic (and other) evidence 

implicating Avery in a crime committed on his property. Without any showing or 

argument as to why the impeachment of Dassey would have undermined the 

cumulative effect of the other evidence, we cannot conclude that the trial’s 

outcome would have been different. We conclude that the circuit court did not err 

in denying the July 2018 motion without a hearing.

MOTION #5: MARCH 2019 SUPPLEMENTAL MOTION

¶69 In January 2019, Avery again moved this court directly to stay the

appeal and remand for the circuit court’s consideration of specific claims relating 

to the State’s 2011 release to Halbach’s family of suspected human bone 

fragments. We determined that, “given the specific circumstances of this case,” 

we would stay the appeal and remand, pursuant to WIS. STAT. § 808.075(5), for 

action on this issue. We again ordered remand to the circuit court to permit Avery

to pursue a supplemental postconviction motion on specific claims, and we 

directed the court to conduct any necessary proceedings. The circuit court denied 

the motion without a hearing.

¶70 The gist of Motion #5 is that the State released to Halbach’s family 

suspected human bone fragments recovered from the Manitowoc County gravel 
No. 2017AP2288-CR

43

pit, thereby violating: (1) a circuit court order; (2) WIS. STAT. § 968.205, 

requiring the state to preserve certain biological material evidence connected to a 

criminal conviction; and (3) Avery’s constitutional rights. As a WIS. STAT.

§ 974.06 motion may raise only jurisdictional, constitutional, and like claims, we 

consider only the third argument. See § 974.06(1); Balliette, 336 Wis. 2d 358, 

¶34; State v. Carter, 131 Wis. 2d 69, 81-82, 389 N.W.2d 1 (1986).

¶71 Avery alleges that, in 2011, the State improperly released to 

Halbach’s family bone fragments from the gravel pit, which Avery wished to test 

to determine if they contained Halbach’s DNA and might thereby indicate that 

Halbach was not killed on Avery’s property. Avery argues that “[t]he State, by its 

actions in returning [the] bones ... has implicitly admitted that the bones were not 

only human but that they belonged to Ms. Halbach.” Avery frames this as a 

violation of Arizona v. Youngblood, 488 U.S. 51, 57-58 (1998), under which a 

defendant’s due process rights are violated where the state either (1) fails to 

preserve “apparently exculpatory” evidence or (2) acts in bad faith by failing to 

present “potentially exculpatory” evidence. See State v. Greenwold, 189 Wis. 2d 

59, 67-68, 525 N.W.2d 294 (Ct. App. 1994). 

¶72 Avery represents that he was not aware, and could not reasonably 

have been aware, of the release of the bones until after he filed his fourth motion. 

We will assume, therefore, that this claim is not procedurally barred under 

Escalona-Naranjo. 
No. 2017AP2288-CR

44

¶73 The State argues that the Youngblood analysis only properly applies 

to the destruction of pretrial evidence. We agree generally but need not explore 

this point, because Avery’s claim fails on its own terms.27

¶74 The premise of Avery’s argument is that the State released to 

Halbach’s family evidence that was either apparently or potentially exculpatory: 

bone fragments from the gravel pit that may have been Halbach’s. This evidence, 

when first collected, was labeled as containing some human bone fragments. At 

trial, however, the undisputed testimony of the State’s forensic anthropologist was

that, on further analysis, the bone fragments could not be definitively identified as 

human, much less as belonging to Halbach. On this record, therefore, this 

evidence is not apparently exculpatory: it does not indicate that another person

killed Halbach. See Youngblood, 488 U.S. at 56 n.* (evidence is not “apparently 

exculpatory” where those having custody over it did not know of its exculpatory 

 

27

 Youngblood and progeny concern whether the destruction of pretrial evidence violates 

a defendant’s due process right to a fair trial, the remedy being dismissal of charges. See Arizona 

v. Youngblood, 488 U.S. 51, 54-58 (1998); State v. Greenwold, 189 Wis. 2d 59, 65-69, 525 

N.W.2d 294 (Ct. App. 1994). We recognize that State v. Parker, 2002 WI App 159, ¶¶13-14, 

256 Wis. 2d 154, 647 N.W.2d 430, somewhat summarily states, “We see no reason why this line 

of cases [addressing the pretrial destruction of evidence] should not apply to the situation at 

hand”—that situation being the destruction of evidence posttrial but before the direct appeal was 

concluded. As there the defendant’s argument was merely that the destruction of evidence 

deprived him of his right to appeal and the right to effective assistance of appellate counsel, it 

appears that the Parker court was simply noting a potential constitutional violation separate and 

apart from any Youngblood violation. Parker, 256 Wis. 2d 154, ¶4. We do not readily perceive 

how Youngblood itself—concerning the right to a fair trial and dismissal of charges as a potential 

remedy—applies to a claim brought on a collateral attack. We agree with the State that District 

Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52, 67-72 (2009), supports 

this conclusion; there the United States Supreme Court found that respondent did not have the 

same due process right in the postconviction context to access evidence in control of the state. 

See Reid v. State, 984 N.E.2d 1264, 1267 (Ind. Ct. App. 2013) (“Osborne ... indicates that an 

individual does not have a right under the Due Process Clause to access lost or destroyed 

evidence during post-conviction proceedings.” (citation omitted)). Because Avery has not 

alleged a Youngblood violation, we need not delve more fully into this point. 
No. 2017AP2288-CR

45

value and the evidence “was simply an avenue of investigation that might have led 

in any number of directions”).

¶75 Nor can Avery establish that this evidence is potentially exculpatory, 

because even assuming that these bone fragments are Halbach’s, Avery does not 

explain the significance of this fact. The apparent thrust of Avery’s claim is that,

if Halbach’s bones were found in the gravel pit, then she was killed by someone 

else. But as Avery never explains why he himself would have been unable to 

dispose of Halbach’s remains in the gravel pit, this line of reasoning is wholly 

speculative. Moreover, Avery cannot show bad faith, meaning “(1) the officers 

were aware of the potentially exculpatory value or usefulness of the evidence they 

failed to preserve; and (2) the officers acted with official animus or made a 

conscious effort to suppress exculpatory evidence.” See State v. Luedtke, 2015 

WI 42, ¶46, 362 Wis. 2d 1, 863 N.W.2d 592 (citation omitted). The record 

reflects only that the State released bone fragments of indeterminate origin after 

Avery’s direct appeal was fully litigated, when there appeared no direct or 

immediate need to preserve this evidence. And contrary to Avery’s argument, the 

very fact that the State released the bones does not mean that these are Halbach’s 

or that the State acted in bad faith to “destroy” this evidence. The Halbach family 

requested these bone fragments for purposes of its own—likely for closure—but 

that does not vest these fragments with evidentiary significance.28

 

28

 Avery suggests that the State also acted in bad faith in 2018, during the postconviction 

process, by actively misleading him about whether it still possessed the bone fragments. The 

point at which to measure the State’s bad faith, however, is when it allegedly destroyed the 

evidence—here, in 2011, when it released the bone fragments to Halbach’s family. See State v. 

Luedtke, 2015 WI 42, ¶41, 362 Wis. 2d 1, 863 N.W.2d 592 (defendant must show that “the State 

acted in bad faith by destroying evidence that was potentially exculpatory” (emphasis added; 

citations omitted)).
No. 2017AP2288-CR

46

MOTION #6: APRIL 2021 MOTION TO STAY AND REMAND

¶76 On November 9, 2020, we notified the parties that this case had been 

submitted to the court for decision on briefs. On April 12, 2021, Avery filed 

another motion with this court to stay his appeal and remand for evaluation of a 

new claim. This claim concerns an alleged Brady violation, the factual basis for 

which Avery purportedly obtained on April 11, 2021. Specifically, the claim is 

based on the affidavit of Thomas Sowinski, a Manitowoc motor route driver who

attests that, days after Halbach’s death, while on his paper route in the early 

morning hours, he spotted a shirtless Dassey and an unidentified older man 

pushing Halbach’s vehicle down Avery Road towards the junkyard. Sowinski 

further attests that, after he delivered the paper, Dassey attempted to block his exit, 

causing him to swerve and drive into a shallow ditch. Sowinski claimed to have 

called the Manitowoc sheriff’s office later that day to report what he had seen but 

was told they “already know who did it.” He also claims to have attempted to 

contact Avery’s trial attorneys after Season 1 of Making a Murderer, but never 

heard back from them. 

¶77 When Avery filed this motion, we had already twice stayed his 

appeal, each time because he asserted that the new claims related to those 

previously litigated and that it would be most expeditious to resolve them as part 

of the instant appeal. By the time Avery filed this new motion, however, we had 

already evaluated the legal and factual bases for claims already raised. We 

therefore were, and are, in the position to conclude that this newly raised Brady 

claim bears little or no relation to those claims already before us. This is, instead, 

a distinct issue that the circuit court should resolve on a standalone basis through a 

new WIS. STAT. § 974.06 motion. 
No. 2017AP2288-CR

47

¶78 Moreover, Avery’s latest motion arrived while our decision on his 

appeal was forthcoming. It would be an inefficient use of court resources to now, 

and once again, delay this appeal’s resolution. We appreciate that Avery likely 

wishes us to consider this new Brady claim in the context of claims previously 

raised, but we must weigh that implicit consideration against those discussed 

above. Simply put, Avery’s appeal cannot continue indefinitely. Accordingly, 

this decision operates as an order denying Avery’s April 12, 2021 motion to stay 

and remand. If Avery wishes to raise this claim, he must file a new WIS. STAT.

§ 974.06 motion with the circuit court. Pursuant to Escalona-Naranjo, Avery will 

need to demonstrate why he could not have previously raised this claim, including 

in his June 2017 motion, before the merits can be reached. 

CONCLUSION

¶79 Avery raises a variety of alternative theories about who killed 

Halbach and how, but as the State correctly notes, a WIS. STAT. § 974.06 motion is 

not a vehicle to retry a case to a jury. A criminal defendant is constitutionally 

entitled as of right to a jury trial and, if convicted, a direct appeal. If he or she 

later seeks to collaterally attack the conviction on constitutional or jurisdictional 

grounds, a § 974.06 motion is appropriate. But key to any § 974.06 motion are

sufficient, nonconclusory showings both as to why the issue was not raised in an 

earlier postconviction proceeding and why the claim has facial merit. These

requirements are not optional and cannot be met through broad conclusions or by 

misstating evidence. 

¶80 We express no opinion about who committed this crime: the jury 

has decided this question, and our review is confined to whether the claims before

us entitle Avery to an evidentiary hearing. We conclude that the circuit court did 
No. 2017AP2288-CR

48

not erroneously exercise its discretion in denying hearings on Motions #1, #4, and 

#5; in not vacating its order on Motion #1; and in not reconsidering its ruling on 

Motion #1. As for Motion #6 and the portion of Motion #3 (the motion to 

reconsider) raising new claims, we leave open the possibility that Avery may raise 

these claims in a new WIS. STAT. § 974.06 motion. We remind Avery, however, 

that he will need to overcome the Escalona-Naranjo procedural bar on these 

claims, which includes providing a sufficient reason for not raising them in his 

June 2017 motion. Moreover, Avery will need to satisfy the previously discussed 

specificity requirements before such claims may proceed to a hearing. See John 

Allen, 274 Wis. 2d 568, ¶¶2, 23. 

By the Court.—Orders affirmed.

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

809.23(1)(b)5.