Opinion
Case No. 96-2766.
Opinion Released: November 6, 1997. Opinion Filed: November 6, 1997. This opinion will not be published. See RULE 809.23(1)(b)5, STATS.
APPEAL from an order of the circuit court for Dane County: JACK F. AULIK, Judge. Affirmed.
Before Eich, C.J., Dykman, P.J., and Vergeront, J.
Jose Aldazabal appeals from an order denying his second § 974.06, STATS., motion for postconviction relief. The trial court summarily denied relief under the holding in State v. Escalona-Naranjo , 185 Wis.2d 168, 173, 517 N.W.2d 157, 159 (1994). We affirm.
Aldazabal was convicted of delivery of cocaine within 1000 feet of a community center in 1993. In 1994, he filed a motion for postconviction relief pursuant to § 974.06, STATS. The trial court denied relief and Aldazabal appealed. We affirmed the order denying postconviction relief in a decision released in December 1995. State v. Aldazabal , No. 94-3244, unpublished slip op. (Wis.Ct.App. Dec. 21, 1995). After the supreme court denied review of our decision, Aldazabal again filed for relief under § 974.06, STATS. The trial court's order denying relief on that second motion is the subject of this appeal.
The record also contains a subsequent trial court order denying what the trial court refers to as Aldazabal's third petition for a writ of habeas corpus. If Aldazabal did, in fact, file a third motion or petition for relief, it does not appear in the record. It is also not identified in Aldazabal's notice of appeal as a subject of this appeal.
Without sufficient reason, a defendant cannot obtain relief under § 974.06, STATS., on any issue that was or could have been raised in an earlier motion under that section, in an earlier § 974.02, STATS., motion or in an earlier appeal. See State v. Tolefree , 209 Wis.2d 421, 425-26, 563 N.W.2d 175, 177 (Ct.App. 1997) (citing Escalona-Naranjo , 185 Wis.2d at 184-86, 517 N.W.2d at 163-64); § 974.06(4). One of the issues Aldazabal raises in his brief was, in fact, resolved in his prior appeal and cannot be relitigated. See, e.g., State v. Witkowski , 163 Wis.2d 985, 990, 473 N.W.2d 512, 514 (Ct.App. 1991). With respect to the other issues, he has advanced no reason for failing to raise them in his initial motion. The trial court therefore properly denied the motion summarily, without addressing its merits.
By the Court. — Order affirmed.