COURT OF APPEALS

DECISION

DATED AND FILED

January 10, 2024

Samuel A. Christensen

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. 2022AP2054 Cir. Ct. No. 2005CF210

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DARYISE L. EARL,

 DEFENDANT-APPELLANT.

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

WYNNE P. LAUFENBERG, Judge. Affirmed. 

Before Gundrum, P.J., Grogan and Lazar, JJ. 

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2022AP2054

2

¶1 PER CURIAM. Daryise L. Earl, pro se, appeals the order denying 

his WIS. STAT. § 974.06 (2021-22)1 postconviction motion. Although Earl raises 

multiple arguments in his appellate brief, the primary issue on appeal is whether the 

circuit court erred when it denied his motion without holding an evidentiary hearing. 

We affirm.

¶2 This is the fourth time Earl has appealed a decision in his case to this 

court. In late 2006 and early 2007, Earl and his cousin, Johnny Herring, were 

convicted of first-degree intentional homicide as party to a crime for the 2000 

murder of Michael Bizzle as well as armed robbery as party to a crime. Herring was 

tried first and then testified at Earl’s trial after being granted immunity. In a 

conversation before being called to testify, Herring told the prosecutor that he and 

Earl had been in Bizzle’s van with Bizzle and Michael Nesby. Herring said he and 

Earl robbed Nesby and that after Nesby fled, Earl shot and robbed Bizzle. When 

testifying at Earl’s trial, however, Herring said that it was actually Nesby who shot 

and robbed Bizzle. The prosecutor then impeached Herring with his prior statement 

that he and Earl had committed the homicide and robbery. As noted, the jury found 

Earl guilty. 

¶3 Earl’s first postconviction motion after trial alleged ineffective 

assistance by his trial counsel and was tied in large part to trial counsel’s failure to 

present Nesby as the perpetrator and for not objecting to Herring’s testimony. Earl’s 

motion also alleged prosecutorial misconduct and due process violations. The 

circuit court denied Earl’s motion after an evidentiary hearing. Earl appealed his 

judgment and the order denying his postconviction motion, and this court affirmed. 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP2054

3

State v. Earl, No. 2009AP1274-CR, unpublished slip op. (WI App Aug. 11, 2010). 

The Wisconsin Supreme Court denied Earl’s petition for review in December 2010, 

and in September 2011, it denied his writ of habeas corpus asserting his appellate 

counsel provided ineffective assistance by abandoning his claims that his trial 

counsel acted ineffectively.

¶4 In May 2012, Earl filed a pro se WIS. STAT. § 974.06 motion with the 

circuit court asserting that his postconviction counsel provided ineffective 

assistance for failing to raise a number of additional issues and requested an 

evidentiary hearing. Earl’s motion alleged the following issues should have been 

raised: (1) the State’s delay in charging him caused him prejudice; (2) the police 

unlawfully took his fingerprints; (3) Herring’s statement should have been excluded 

from his trial; (4) the prosecutor engaged in misconduct by allowing false testimony 

and in failing to correct material misrepresentations by witnesses; (5) his due 

process rights were violated; and (6) his age at the time of the crime was not 

considered at sentencing. 

¶5 The circuit court granted a hearing on one of the issues, but ultimately 

denied Earl’s motion in its entirely. Earl appealed from the order denying his 

motion, and in September 2014, we issued our second opinion rejecting Earl’s 

arguments and affirming the circuit court’s order. State v. Earl, No. 2013AP1478, 

unpublished op. and order (WI App Sept. 3, 2014). We held, as a matter of law, 

that Earl failed to establish his postconviction counsel provided ineffective 

assistance because Earl did not call postconviction counsel to testify at the 

evidentiary hearing. Id. at 5 n.4. 

¶6 In June 2018, Earl filed a second pro se WIS. STAT. § 974.06 motion 

seeking a new trial in the interest of justice. He alleged the State failed to comply 
No. 2022AP2054

4

with the discovery requirements of WIS. STAT. § 971.23 and Brady v. Maryland, 

373 U.S. 83 (1963). He claimed the State should have turned over police reports in 

another case, State v. Xavier Rockette, because those reports referenced S.C.,2 who 

testified against Earl, and he claimed he could have used information from those 

reports to impeach S.C. The circuit court denied Earl’s motion, concluding that the 

failure to disclose the police reports did not constitute a Brady violation because: 

 Evidence of impeachment is material if the witness 

whose testimony is attacked “supplied the only evidence 

linking the defendant(s) to the crime,” United States v. 

Petrillo, 821 F.2d 85, 90 (2d Cir. 1987), or “where the likely 

impact on the witness’s credibility would have undermined 

a critical element of the prosecution’s case.” United States 

v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995). Impeachment 

evidence is not material, and thus a new trial is not required 

“when the suppressed impeachment evidence merely 

furnishes an additional basis on which to impeach a witness 

whose credibility has already been shown to be 

questionable.” Id.

¶7 The circuit court concluded that because “Earl’s attorney did have the 

opportunity to cross examine [S.C.] at trial[,]” the “additional ground for 

impeachment would not ... have produced a different verdict.” The court found that 

even if the failure to disclose violated the discovery statute and regardless of 

“whether or not it was inadvertent, the evidence sought by Earl does not constitute 

a Brady violation under the case law” because this court had already concluded in 

our decision in Earl’s direct appeal that the Record contained very damaging 

evidence from other witnesses who testified that Earl admitted to killing Bizzle. 

Earl appealed the circuit court’s order to this court.

¶8 In November 2020, we rejected Earl’s arguments in our third opinion 

in his case, State v. Earl, No. 2018AP2432, unpublished slip op. (WI App Nov. 4, 

 

2

 This court will use initials to reference S.C. See WIS. STAT. RULE 809.19(1)(g).
No. 2022AP2054

5

2020), where we held that Earl’s arguments were procedurally barred by State v. 

Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994). In doing so, 

we rejected his claim that his recent discovery of the nondisclosed police reports 

constituted a Brady violation that gives him a sufficient reason to collaterally attack 

his now sixteen-year-old conviction. We explained:

 Earl asserts that he only recently discovered evidence 

relevant to his claim of innocence, such as police reports 

from Rockette in 2018. In his own WIS. STAT. § 974.06 

motion underlying this appeal, however, Earl put forth that a 

private investigator alerted [his trial counsel] in January 

2006—a full year before trial—of the State’s failure to fully 

disclose all of the police investigative reports related to the 

Bizzle homicide, that Earl himself gave the private 

investigator the copies of the reports, and that Earl told her 

he got the copies of the reports from Rockette. Earl thus 

could have obtained an affidavit from Rockette at that time. 

Earl, No. 2018AP2432, ¶14 (footnote omitted). We also rejected his Brady claim 

on the merits. See Earl, No. 2018AP2432, ¶¶16-18. In March 2021, our supreme 

court denied Earl’s request to review our decision. 

¶9 In June 2022, Earl filed another WIS. STAT. § 974.06 motion in the 

circuit court seeking a new trial,3and it is this motion that is the subject of Earl’s 

current appeal. Like prior motions, this motion again alleges: (1) a Brady violation; 

(2) ineffective assistance of trial counsel; and (3) a violation of the discovery statute, 

WIS. STAT. § 971.23. It also alleged that the real controversy of the Bizzle homicide 

had not been fully tried. The circuit court denied the motion without holding a 

hearing, ruling that Earl’s motion was procedurally barred by Escalona-Naranjo

and that he failed to set forth a sufficient reason to overcome the bar. See State v. 

 

3

 About one month later, Earl filed another motion requesting that he be allowed to call 

witnesses. 
No. 2022AP2054

6

Romero-Georgana, 2014 WI 83, ¶5, 360 Wis. 2d 522, 849 N.W.2d 668. Earl 

appeals.

¶10 “We need finality in our litigation.” Escalona-Naranjo, 185 Wis. 2d 

at 185. Thus, any claim that could have been raised in a prior postconviction motion 

or on direct appeal cannot form the basis for a subsequent motion under WIS. STAT.

§ 974.06 unless the defendant demonstrates a sufficient reason for failing to raise 

the claim earlier. Escalona-Naranjo, 185 Wis. 2d at 185. A defendant may not 

relitigate a matter previously litigated, “no matter how artfully the defendant may 

rephrase the issue.” State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 

(Ct. App. 1991). Whether a claim is procedurally barred and whether a sufficient 

reason exists for the failure to previously assert the claim present questions of law 

we review de novo. State v. Kletzien, 2011 WI App 22, ¶¶9, 16, 331 Wis. 2d 640, 

794 N.W.2d 920.

¶11 The claims Earl asserts in his current WIS. STAT. § 974.06 motion are 

repetitive of those we have already rejected—he simply attempts to reframe them. 

Specifically, Earl’s Brady violation, ineffective assistance of trial counsel, and 

discovery violation/prosecutorial misconduct claims have all been previously 

litigated and rejected in prior appeals. With respect to Earl’s claim that the real 

controversy has not been tried, as we explained in our November 2020 decision: 

“[WISCONSIN STAT. §] 752.35 does not permit us to go behind an order denying a 

§ 974.06 postconviction motion to reach the judgment of conviction.” Earl, 

No. 2018AP2432, ¶23. Because Earl has previously raised these same arguments, 

his current § 974.06 motion is procedurally barred, and he fails to provide a 

sufficient reason for us to address them. 
No. 2022AP2054

7

¶12 In summary, Earl has now litigated a direct appeal with the assistance 

of counsel and three pro se WIS. STAT. § 974.06 motions. While we understand he 

believes his trial counsel should have acted differently and that he believes the State 

failed to disclose police reports, he has argued those issues by attempting to reframe 

them with each motion he files and has been afforded three decisions—four 

including this one—from this court. Moreover, our November 2020 decision 

carefully and thoroughly explained why he is procedurally barred from re-raising 

these same issues, and despite concluding Earl was procedurally barred, this court 

still addressed the merits of his Brady claims in that decision. Accordingly, the 

circuit court did not err in summarily denying Earl’s current motion and properly 

concluded that Earl is procedurally barred from repeatedly re-arguing the same 

issues over and over. 

By the Court.—Order affirmed.

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

RULE 809.23(1)(b)5.