State v. Lo

2003 WI 107, 665 N.W.2d 756, 264 Wis. 2d 1, 2003 Wisc. LEXIS 485

• Court: Wisconsin Supreme Court
• Decided: July 11, 2003
• Docket: 01-0843
• Status: Published

Opinions

DAVID T. PROSSER, J.

¶ 1. This is a review of an unpublished decision of the court of appeals affirming an order of the Circuit Court for La Crosse County, Ramona A. Gonzalez, Judge. State v. Anou Lo, No. 01-0843, unpublished slip op. (Wis. Ct. App. Dec. 28, 2001).

¶ 2. The petitioner, Anou Lo, asks that we overrule our decision in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) (Escalona), in which we held that any claim that could have been raised on direct appeal or in a previous Wis. Stat. § 974.06 (1999-2000)¹ postconviction motion is barred from being raised in a subsequent § 974.06 postconviction motion, absent a sufficient reason. Lo also requests that we retroactively apply our decision in State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, and thereby grant him a new trial so that a jury can be properly instructed on the elements of imperfect self-defense.

¶ 3. This case raises the question of whether our ruling in Escalona achieves a desired finality in the criminal appeals process and does so in a fair and efficient manner. We are mindful of the important interests and values articulated by counsel and of the practical difficulties identified by Judge Deininger in his concurring opinion. Lo, No. 01-0843, unpublished slip op., ¶¶ 56-58 (Deininger, J., concurring).

¶ 4. Having considered the arguments, we decline to overrule our holding in Escalona. We continue to believe that it represents the correct interpretation of Wis. Stat. § 974.06. With the understanding that Esca-lona is the law, the court will seek opportunities to work with the State and the defense bar to fashion remedies that fairly address the problems identified by the court of appeals.

¶ 5. The petitioner contends that our decision in Head should be applied retroactively. For the reasons set forth in Part IV of this opinion, we hold that Head should not be applied retroactively to litigants in collateral proceedings.

I — I

¶ 6. Some of the facts of this case are in dispute. In the summer of 1995, members of TMC, a street gang in La Crosse, were involved in various shootings directed at friends and acquaintances of Anou Lo.² As a result, one of Lo's acquaintances gave him a handgun for protection.

¶ 7. On July 6, 1995, Lo met friends with the intention of accompanying them to Trane Park. While the group was in transit, Lo learned that several TMC members had gathered at Hood Park, and he asked his group to go there. At Hood Park, Koua Vang, a member of TMC, and Hue Lee, a friend of Vang, were playing marbles with some young children. Hue Lee observed the car in which Lo was a passenger circle twice around the park. Then Lo entered the park with one of his friends, while the driver of the car and other passengers stayed behind.

¶ 8. In the park, Lo yelled at Vang from a distance of 40 to 50 feet. An argument developed. Lo confronted Vang about rumors that the TMCs were out to get Lo's stepbrother. Vang claims that, during the argument, Lo asked him if he wanted to die. Vang became excited and Hue Lee tried to calm him down. In time, Lo and Vang decided to back off and go their separate ways.

¶ 9. Lo claims that as he was attempting to leave the park, he saw Vang try to grab something underneath his shirt, from the front waistband of his pants. Thinking that Vang was trying to get a gun, Lo drew his own gun and fired it in Vang's direction four times. Lo and his friend then ran away.

¶ 10. Vang was shot in the back of his right arm. At the time of the shooting, he was in fact carrying a gun in the front of his pants, but he denied reaching for it, explaining that he was simply putting marbles in his pocket.

¶ 11. Lo was 16 years old at the time of the shooting. He was waived into criminal court and tried as an adult. On January 12,1996, a jury found Lo guilty of attempted first-degree intentional homicide while armed and first-degree reckless endangerment while armed. The circuit court sentenced Lo on February 26, 1996, to consecutive terms of 20 years incarceration on the attempted homicide conviction and 9 years on the reckless endangerment conviction.

¶ 12. After his conviction, Lo acquired new counsel and filed postconviction motions pursuant to Wis. Stat. § 974.02 and Wis. Stat. § (Rule) 809.30. In one of these motions, he challenged the effectiveness of his trial counsel. After an evidentiary hearing, Lo's motions were denied. Lo appealed two claims that he had raised in postconviction motions, including the claim of ineffective assistance of counsel. The court of appeals affirmed the conviction and the denial of postconviction relief. State v. Lo, No. 97-0023-CR, unpublished slip op. (Wis. Ct. App. June 25, 1998). Lo then made an unsuccessful pro se attempt at federal habeas relief.

¶ 13. On March 6, 2000, Lo, again pro se, requested an order from the circuit court asking for information he needed to file a § 974.06 motion. In a Memorandum Decision and Order dated May 16, 2000, the circuit court denied the request on grounds that Lo could get the information from his prior attorneys. On January 17, 2001, Lo made a pro se § 974.06 motion, which was denied by the circuit court because the claims were barred pursuant to Escalona in that the issues could and should have been raised on direct appeal.³ The court of appeals affirmed the circuit court decision. In a concurring opinion, Judge Deininger raised questions whether Escalona!s construction of § 974.06(4) had achieved its goal of bringing finality to postconviction litigation. Lo, No. 01-0843, unpublished slip op., ¶¶ 55-58.

I — I

¶ 14. Once again this court is called upon to review the proper construction of § 974.06(4). The construction of a statute is a question of law and is reviewed de novo. Escalona, 185 Wis. 2d at 175-76. Our goal is to discern and give effect to the intent of the legislature. County of Jefferson v. Renz, 231 Wis. 2d 293, 301, 603 N.W.2d 541 (1999).

¶ 15. Although our decision in Escalona discussed the origins and purpose of § 974.06, see Escalona, 185 Wis. 2d at 176-78, 181-82, we take this opportunity to augment that discussion and reinforce our holding that claims of error that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 motion, absent a showing of a sufficient reason.

¶ 16. Section 974.06 was created by the Wisconsin legislature in 1969 as the first uniform postconviction procedure in the state's history.⁴ Heather M. Hunt, Note, State v. Escalona-Naranjo: A Limitation on Criminal Appeals in Wisconsin ?, 1997 Wis. L. Rev. 207, 210. The decision to institute a uniform postconviction remedy was made by the Criminal Rules Committee of the Judicial Council. Id. at 211 The decision was influenced by a letter from Justice Myron L. Gordon, who expressed dissatisfaction over the time that the Wisconsin Supreme Court spent reviewing habeas corpus matters and recommended that circuit courts handle such petitions. Id. (citing Minutes of Meeting of the Judicial Council 2 (June 16, 1967)).

¶ 17. In establishing a uniform postconviction remedy, the Criminal Rules Committee set forth a procedure "under sec. 974.06 [that] was 'designed to replace habeas corpus as the primary method in which a defendant can attack his conviction after the time for appeal has expired.'" Escalona, 185 Wis. 2d at 176 (citing Howard B. Eisenberg, Post-Conviction Remedies in the 1970's, 56 Marq. L. Rev. 69, 79 (1972)). Section 974.06 was modeled after 28 U.S.C. § 2255 (2000).⁵ However, subsection (4) was taken from section 8 of the 1966 Uniform Post-Conviction Procedure Act (1966 UPCPA or 1966 Uniform Act). Hunt, supra, at 211. Section 974.06(4) reads as follows:

All grounds for relief available to a person under this section must be raised in his or her 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.

Wis. Stat. § 974.06(4).

¶ 18. There is no dispute that the language of § 974.06(4) was adapted from section 8 [Waiver of or Failure to Assert Claims] of the 1966 UPCPA, see Unif. Post-Conviction Procedure Act § 8, 11A U.L.A. 375 (Master ed. 1995), even though the UPCPA was not adopted in its entirety by the Wisconsin legislature. Escalona, 185 Wis. 2d at 177-78. The comment to § 974.06(4) acknowledges that subsection (4) came from the UPCPA and asserts that it was "designed to compel a prisoner to raise all questions available to him in one motion." Comment to Wis. Stat. Ann. § 974.06 (West Supp. 1998).

¶ 19. The stated legislative intent is consistent with the purpose of the 1966 UPCPA. The UPCPA was drafted to curtail the explosion of federal habeas corpus petitions in the federal courts that resulted from an absence of an "all-embracing system of post-conviction relief capable of affording the prisoner a forum for his claims based on the United States Constitution." 1966 UPCPA Commissioners' Prefatory Note, 11A U.L.A. 269-270.

¶ 20. To accomplish this goal, the Commissioners advocated "constructive action" at the state level to eliminate the "abuses" of habeas corpus. Id. at 269. This strategy involved (1) providing a single, unitary, post-conviction remedy to be used in place of all other state remedies (except direct review); (2) providing a remedy for all grounds for attacking the validity of a conviction or sentence in a criminal case; and (3) requiring a defendant to present all of his or her claim(s) for attack on a conviction or sentence in his or her initial postcon-viction proceeding, unless there exists a sufficient reason why the claim(s) were not raised in the initial proceeding. See id. at 270-71; see also Escalona, 185 Wis. 2d at 177 n.8.

¶ 21. The second objective noted above, that of providing "a remedy for all grounds for attacking the validity of a conviction or sentence in a criminal case," was embodied in section (l)(a) of the 1966 Uniform Act. Section (l)(a) defined the scope of the remedy under the 1966 Uniform Act.⁶ The remedy was described as "similar" to the remedy afforded by 28 U.S.C. § 2255. Comment, 11A U.L.A. 275. In fact, however, it was a broader remedy than 28 U.S.C. § 2255. Wisconsin chose not to adopt section 1 of the UPCPA. Instead, it adopted language "taken directly from 28 U.S.C. § 2255." Comment, ch. 255, Laws of 1969.

¶ 22. The third objective noted above was embodied in section 8 of the 1966 Uniform Act, and section 8 was the source of § 974.06(4).

¶ 23. Two years after the new procedure took effect, in Peterson v. State, 54 Wis. 2d 370, 195 N.W.2d 837 (1972), this court described the function of a § 974.06 motion:

The postconviction motion under sec. 974.06, Stats., is not a substitute for a motion for a new trial. A sec. 974.06 motion can be made only after the defendant has exhausted his direct remedies which consist of a motion for a new trial and appeal. A sec. 974.06 motion is limited in scope to matters of jurisdiction or constitutional dimensions. The motion must not be used to raise issues disposed of by a previous appeal.

Id. at 381 (footnotes omitted).

¶ 24. The Peterson decision discussed the scope of the § 974.06 motion, saying that such issues as "sufficiency of the evidence, jury instructions, error in admission of evidence, and other procedural errors cannot be reached by a § 974.06 motion." Id. It did not, however, engage in an explicit textual analysis addressing the issue of when a claim was barred because of some prior proceeding.

¶ 25. In Bergenthal v. State, 72 Wis. 2d 740, 242 N.W.2d 199 (1976) (Bergenthal II), four years after Peterson, the court gave § 974.06 an expansive interpretation. Bergenthal was convicted of first-degree murder and endangering safety by conduct regardless of human life. State v. Bergenthal, 47 Wis. 2d 668, 671, 178 N.W.2d 16 (1970) (Bergenthal I). At his trial, Bergenthal contended that certain materials enclosed in a brown sealed envelope possessed by the State were exculpatory and subject to in camera inspection. Bergenthal II, 72 Wis. 2d at 743. The circuit court ruled that the evidence was not exculpatory. Id. at 746.

¶ 26. In his post-verdict motion, Bergenthal raised 100 claims of error, one of which was the circuit court's failure to disclose the contents of the envelope. Bergenthal I, 47 Wis. 2d at 673-74. Following the denial of his postconviction motion, all of Bergenthal's claims were raised on appeal except the court's failure to disclose the contents of the envelope. Id.

¶ 27. After Bergenthal's conviction was affirmed by this court, Bergenthal filed a § 974.06 motion challenging the circuit court's failure to disclose the items in the envelope. Bergenthal II, 72 Wis. 2d at 742-43. The circuit court incorrectly assumed that the issue surrounding the brown sealed envelope had been considered and rejected by this court. Operating on that assumption, the circuit court concluded that the opinion of this court on direct appeal had. disposed of the issue. It denied the motion, observing that a § 974.06 motion could not be used as a vehicle for a second appeal on grounds already reviewed. Id. at 745. This court disagreed, stating that "[e]ven though the issue might properly have been raised on appeal, it presents an issue of significant constitutional proportions and, therefore, must be considered in this motion for post-conviction relief." Id. at 748 (citing Loop v. State, 65 Wis. 2d 499, 222 N.W.2d 694 (1974)).

¶ 28. The significance of the Bergenthal II holding was that it permitted a criminal defendant to raise a ground for relief in a § 974.06 motion that could have been raised on direct appeal but was not, without the defendant showing a sufficient reason why the issue had not been raised. After Bergenthal II, a criminal defendant was not required to show a reason why an issue had not been raised until the defendant filed a second or subsequent § 974.06 motion. As a result, a criminal defendant had the right to a § 974.02 motion after trial, followed by a direct appeal, plus another chance to raise claims in a § 974.06 motion, even if the grounds claimed in the § 974.06 motion were available at the time of the § 974.02 motion and direct appeal. In reaching this conclusion, the Bergenthal II court pointed to § 974.06(3)⁷ but it did not construe § 974.06(4).

¶ 29. In Escalona, this court revisited the question of whether a claim that could have been raised on direct appeal was barred from being raised in a § 974.06 motion absent a showing of a sufficient reason. The case involved Bárbaro Escalona-Naranjo, who was convicted in February 1986 of two counts of possession of controlled substances with intent to deliver. Escalona, 185 Wis. 2d at 173-74. Prior to sentencing, Escalona-Naranjo's trial counsel filed a motion to vacate the conviction and requested a competency hearing at which Escalona-Naranjo was found to be competent for sentencing. Id. at 174. After sentencing in September 1986, a notice of intent to seek postconviction relief was filed by defense counsel under Wis. Stat. § (Rule) 809.30(2)(b). Id. Postconviction motions requesting a new trial, competency redetermination, and resentenc-ing were filed pursuant to § 974.02. Id. The circuit court denied the motions and the court of appeals affirmed. Id. at 174-75.

¶ 30. Escalona-Naranjo then filed a § 974.06 motion in July 1990, which was amended in February 1991, claiming ineffective assistance of trial counsel. Id. at 175. In response to Escalona-Naranjo's § 974.06 motion, the State contended that Escalona-Naranjo had simply rephrased issues that had already been raised in the 1986 § 974.02 motion and appeal. Id. The circuit court agreed with the State and the court of appeals certified the case to this court. Id.

¶ 31. In affirming the circuit court's decision, this court overruled the holding in Bergenthal II and held that a criminal defendant was required to consolidate all postconviction claims into his or her original, supplemental, or amended motion. Id. at 181-82. If a criminal defendant fails to raise a constitutional issue that could have been raised on direct appeal or in a prior § 974.06 motion, the constitutional issue may not become the basis for a subsequent § 974.06 motion unless the court ascertains that a sufficient reason exists for the failure either to allege or to adequately raise the issue in the appeal or previous § 974.06 motion. Id. at 181-82.⁸ In reaching this holding, Escalona analyzed the plain language of § 974.06(4) and its origin, namely, the 1966 UPCPA, and found the legislative history to be decisive.

¶ 32. Escalona correctly concluded that all grounds for postconviction relief under § 974.06 must be raised in the petitioner's original, supplemental, or amended motion. Id. at 181.⁹ Further, the majority interpreted an "original, supplemental, ’or amended motion" to encompass both a § 974.06 motion and the direct appeal. Id. The dissent argued that the term "motion" referred to a previous motion brought under § 974.06 and was not intended to include direct review. Id. at 191-94 (Abrahamson, J., dissenting).

¶ 33. Lo adopts the Escalona dissent's textual analysis. He also argues that the relationship between section 8 of the 1966 UPCPA and two predecessor sections from the 1955 version of the UPCPA (1955 Uniform Act) supports the Escalona dissent's position that a direct appeal and a § 974.06 postconviction motion are to be treated differently under § 974.06.

¶ 34. Lo presents a scholarly discussion of the 1955 Uniform Act, as well as the 1966 UPCPA, describing how language from section 1 of the 1955 Uniform Act was incorporated into section 8 of the 1966 UPCPA. Lo explains that section 1 of the 1955 Uniform Act made postconviction relief available under the Act, "provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction or in any other proceeding that the petitioner has taken to secure relief from his conviction." 11A U.L.A. 267 (emphasis added). This section plainly precluded consideration of issues adjudicated or waived in a direct appeal. By contrast, Lo argues, section 8 of the 1955 Uniform Act dealt with successive petitions under that Act.¹⁰

¶ 35. In the 1966 Uniform Act, language from 1955 section 1 was consolidated into the new section 8 as follows:

All grounds for relief available to an applicant under this Act must be raised in his original, supplemental or amended application. 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 applicant has taken to secure relief may not be the basis for a subsequent application, 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 application.

11A U.L.A. 375.

¶ 36. Lo contends that the phrase "any ground finally adjudicated or not so raised" is tied to the "original, supplemental or amended application" under the Act, not to any previous appeal, and that only a ground "knowingly, voluntarily and intelligently waived" is tied to the applicant's direct appeal. This reading of the 1966 Uniform Act, he argues, provides the proper interpretation of current § 974.06(4), which reads:

All grounds for relief available to a person under this section must be raised in his or her 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.

¶ 37. We cannot agree with Lo's construction of the statute. Section 974.06(4) begins with the sentence: "All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion." Wis. Stat. § 974.06(4) (emphasis added). Some grounds for relief are not available under § 974.06. For instance, if a ground for relief does not satisfy a criterion in subsection (1), it is not available. See Peterson, 54 Wis. 2d at 381.

¶ 38. More important, however, the second sentence of the subsection spells out three additional grounds that are not available without sufficient reason, namely (1) grounds that have been finally adjudicated; (2) grounds that were not raised in a previous proceeding; and (3) grounds that were knowingly, voluntarily and intelligently waived.

¶ 39. Under the plain language of subsection (4), any grounds "knowingly, voluntarily and intelligently waived" are waived "in the proceeding that resulted in the conviction or sentence," because there is no break between the waiver language and the phrase "in the proceeding that resulted in the conviction or sentence." Wis. Stat. § 974.06(4). Lo concedes as much.

¶ 40. Nonetheless, Lo contends that the phrase "any grounds finally adjudicated or not so raised" has no link to the phrase "in the proceeding that resulted in the conviction or sentence." If this were true, it would mean that a "ground" "finally adjudicated" by this court in a direct appeal from a conviction would be subject to a § 974.06 motion before a circuit judge. This is an unacceptable reading of the statute. "The motion must not be used to raise issues disposed of by a previous appeal." Peterson, 54 Wis. 2d at 381.

¶ 41. The phrase "or not so raised" is inextricably linked to the phrase "finally adjudicated." Lo cannot have one without the other. This means that "not so raised" also is tied to "the proceeding that resulted in the conviction or sentence." Lo's interpretation of the subsection would permit a defendant to consciously skip grounds for relief on direct appeal and then raise them in a § 974.06 motion.

¶ 42. We acknowledge that the phrase "original, supplemental or amended motion" could be made more clear. The Escalona court interpreted the term "motion" in that phrase to include both a previous § 974.06 motion and a direct appeal. Escalona, 184 Wis. 2d at 181. This interpretation is buttressed by § 974.06(2), which provides: "A motion for such relief is part of the original criminal action, is not a separate proceeding and may be made at any time." Wis. Stat. § 974.06(2) (emphasis added). This subsection describes a proceeding different from a proceeding in federal court under 28 U.S.C. § 2255, which is regarded as an independent civil proceeding. Heflin v. United States, 358 U.S. 415, 418 n.7 (1959). It is also different from a proceeding under the UPCPA, which is also regarded as civil. See Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991) (applying Iowa's version of § 974.06).

¶ 43. However, if the phrase "original, supplemental or amended motion" were interpreted as applying only to a motion under § 974.06, that would not help the defendant.

Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence [e.g., trial, postconviction motion, and direct appeal] or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion [e.g., a motion after appeal under § 974.06], 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.

Wis. Stat. § 974.06(4) (emphasis added). In other words, a court may find that the defendant has asserted a ground for relief "in the original, supplemental or amended motion" which, for sufficient reason, "was not asserted or inadequately raised" "in the proceeding that resulted in conviction or sentence or in any other proceeding the person has taken to secure relief." If the phrase "the original, supplemental or amended motion" were interpreted to mean the defendant's first motion under § 974.06, then the "sufficient reason" requirement would apply to only a second § 974.06 motion. This would make no sense in terms of either policy or grammar.

¶ 44. Consequently, we reaffirm our holding in Escalona that all claims of error that a criminal defendant can bring should be consolidated into one motion or appeal, and claims that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 postconviction motion absent a showing of a sufficient reason for why the claims were not raised on direct appeal or in a previous § 974.06 motion. Escalona, 185 Wis. 2d 168.¹¹

¶ 45. Escalona declared that "we need finality in our litigation." Id. at 185. This statement comports with concerns expressed by the National Conference of Commissioners on Uniform State Laws in 1966. The Prefatory Note to the 1966 Uniform Act states:

If a person has been unconstitutionally imprisoned while the numerous state remedies are pursued for from two to ten years, the situation is abhorrent to our sense of justice. On the other hand, if the greatest number of applications for post-conviction relief are groundless, the wear and tear on the judicial machinery resulting from years of litigation in thousands of cases becomes a matter of serious import to courts and judges. The element of expense is not to be ignored.

11A U.L.A. 270.

¶ 46. It is apparent that the Commissioners' concerns with expense and "years of litigation" reflect a goal of finality in the criminal appeals process. This finality is inherently related to the purpose of vindicating justice via a simplified and adequate postconviction remedy. Our construction of § 974.06(4) furthers these mutually related concerns without compromising fairness. Escalona was correct in asserting that the purpose of the UPCPA was "to compel a prisoner to raise all grounds regarding postconviction relief in his or her original, supplemental, or amended motion, thereby cutting off successive frivolous motions." Escalona, 185 Wis. 2d at 177.

¶ 47. This court's ruling in Escalona is supported by courts in other jurisdictions that have adopted the 1966 UPCPA in whole or in part. See, e.g., Hoffman v. State, 868 P.2d 516 (Idaho Ct. App. 1994); Berryhill v. State, 603 N.W.2d 243 (Iowa 1999); Gassler v. State, 590 N.W.2d 769 (Minn. 1999); Carter v. State, 936 P.2d 342 (Okla. Crim. App. 1997); Drayton v. Evatt, 430 S.E.2d 517 (S.C. 1993).

¶ 48. The same result is seen in federal court decisions interpreting 28 U.S.C. § 2255. See, e.g., United States v. Samuelson, 722 F.2d 425 (8th Cir. 1983); Torres v. United States, 469 F.2d 651 (9th Cir. 1972); Mixen v. United States, 469 F.2d 203 (8th Cir. 1972), cert. denied, 412 U.S. 906 (1973); Overton v. United States, 450 F.2d 919 (5th Cir. 1971); Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967), cert. denied, 389 U.S. 882 (1967); United States v. Edmonson, 922 F. Supp. 505 (D. Kan. 1996), aff'd 107 F.3d 22 (10th Cir. 1997), cert. denied, 521 U.S. 1128 (1997).

¶ 49. We conclude that Escalona correctly interpreted Wis. Stat. § 974.06(4) and remains good law.

I — I I — I HH

¶ 50. In the order granting the petition for review, we asked the parties to address points raised by Judge David Deininger in his concurring opinion in State v. Lo, No. 01-0843, unpublished slip op. In his opinion, Judge Deininger identified complications resulting from the Escalona decision. He wrote insightfully:

In an increasing number of appeals from the denial of motions brought under Wis. Stat. § 974.06, especially those brought by pro se inmates, we are seeing an assertion that the reason the newly raised claims of error were not raised in previous postconviction or appellate proceedings is that postconviction or appellate counsel rendered ineffective assistance by failing to present the allegedly meritorious claims. In order to determine whether the new claims are properly before the court, the circuit court and/or this court must first evaluate the "sufficiency" of the proffered reason, which, as the majority's present analysis demonstrates, will often require a consideration of the merits of the underlying, newly asserted claim. And, even if we or the circuit court conclude that the claim has no merit, and thus that postconviction or appellate counsel's failure to raise the claim did not represent either deficient performance or prejudice to the defendant, the defendant has essentially obtained what § 974.06 and Escalona-Naranjo ostensibly deny: the consideration of the merits of the defendant's newly asserted claim, for which sufficient reason has not been shown for an earlier failure to raise it.

Further complicating the analysis is the fact that many of the newly raised claims, as in this case, involve an assertion that trial counsel was ineffective for failing to make some request or objection during trial or pre-trial proceedings, and that subsequent counsel were ineffective for failing to raise a claim of ineffective assistance of trial counsel. Thus, on a record which contains neither a trial court ruling on a now disputed issue, nor a Machner hearing on why trial counsel failed to raise the issue, we or the circuit court must ponder the following question: Is there merit to the now raised issue, such that trial counsel was deficient for not making a request or objection regarding it, thereby prejudicing the defendant, and thereby also rendering postconviction and/or appellate counsel's performance and prejudicial for failing to assert trial counsel's ineffectiveness, such that the defendant has presented a sufficient reason for the failure to raise the issue in earlier postconviction or appellate proceedings, which would permit him to now bring the issue before the court for a consideration of its merits?

Lo, No. 01-0843, unpublished slip op., ¶¶ 56-57.

¶ 51. The State supports these observations and asserts in its brief: "The problem is not Escalona-Naranjo's, interpretation of § 974.06. The problem is that courts have erroneously assumed that ineffective assistance of § 809.30 counsel is a sufficient reason to permit a defendant to raise previously unraised issues in a successive § 974.06 motion. That assumption is wrong." The State thereafter proposes that the proper procedure for challenging the effectiveness of appellate counsel is to petition the court of appeals for a writ of habeas corpus. If the court of appeals determines that the petitioner's claim is meritorious, the remedy is a new appeal.

¶ 52. Lo and the two amici, the Frank J. Remington Center and the Office of State Public Defender, vigorously criticize this proposed remedy.

¶ 53. Lo devoted most of his argument to the proposition that Escalona was wrongly decided and should be overruled. His mission was not to attempt to find the best way to implement Escalona. His mission was to bury the case.

¶ 54. This court determined in State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992), that a defendant claiming ineffective assistance of appellate counsel should petition the appellate court that heard the appeal for a writ of habeas corpus. In State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996), the court of appeals drew a distinction between the performance of appellate counsel and the performance of postconviction counsel and directed that claims of ineffective assistance of postcon-viction counsel be raised in the circuit court "either by a petition for habeas corpus or a motion under § 974.06, Stats." Id. at 681. Among other things, the Rothering court determined that (1) appellate counsel is not deficient for failing to brief waived issues, id. at 681 n.6; and (2) postconviction counsel may be ineffective in failing to preserve issues that could have been raised on direct appeal, id. at 682. It also raised questions about what constitutes "sufficient reason" to raise an issue that could have been raised in a direct appeal. Id.

¶ 55. The State contends that the Rothering decision was erroneous. It proposes concentrating review of ineffective assistance by postconviction and appellate counsel in a single habeas corpus petition in the court of appeals. It also proposes standards for pleading and reviewing ineffective assistance of appellate counsel.

¶ 56. Some of the answers to these issues may be more a matter of wise policymaking than statutory interpretation. To promote reasonable finality, we are interested in the rules and practices in other jurisdictions, including the federal courts, as well as a discussion of a variety of options, before we attempt to fashion a solution. We are concerned about fairness to both defendants and the government and potential shifts in workload among courts.

¶ 57. We are not convinced that this case is the appropriate vehicle to answer the multiple questions that have been raised. The issues have not been fully joined. Consequently, we defer judgment with the intent of seeking new opportunities to review the issues.

IV

¶ 58. We next address whether our. decision in State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, should be applied retroactively to cases on collateral review. If applied retroactively, Lo's conviction for attempted first-degree homicide would probably be reversed on the basis that the jury instruction for unnecessary defensive force (imperfect self-defense) did not require the State to prove beyond a reasonable doubt that Lo did not actually believe that he was in imminent danger of death or great bodily harm.

¶ 59. We pause for a moment to restate the procedural history. At trial, Lo argued that he shot Koua Vang in self-defense. The circuit court determined that the defendant had adequately raised the issue and gave the standard jury instructions on both perfect and imperfect self-defense. Lo's trial counsel offered no alternative instruction on imperfect self-defense and made no objection to the instruction.

¶ 60. Lo's postconviction counsel filed a motion claiming ineffective assistance of trial counsel. However, he made no claim about the deficiency of the jury instruction on imperfect self-defense. On appeal from the conviction and the denial of the postconviction motion, he made no complaint about the jury instruction on imperfect self-defense. Lo's appeal was decided by the court of appeals on June 25,1998. This was more than four years before the Head decision was released on July 11, 2002.

¶ 61. Lo filed a § 974.06 motion on January 17, 2001. The motion did not raise the issue presently before the court and was denied. The court of appeals affirmed the denial in a 30-page opinion by Judge Roggensack on December 28, 2001. We granted Lo's pro se petition for review on April 29, 2002, before the Head case was decided. In short, Lo never challenged the imperfect self-defense jury instruction on the ground before us now until he filed his brief in this court. As a result, if we were to retroactively apply the decision in Head to this case, we would arguably open to collateral attack 10 years of homicide convictions that involved the standard jury instruction on imperfect self-defense. We decline to apply Head retroactively to cases on collateral review.

¶ 62. Our decision in Head may fairly be described as a "new rule" because it imposes a new obligation on the State and because it was not dictated by precedent existing at the time of the defendant's conviction.¹² Graham v. Collins, 506 U.S. 461, 467 (1993) (citing Teague v. Lane, 489 U.S. 288, 301 (1989)). At the same time, we did not overrule State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993); we modified its holding. Head, 255 Wis. 2d 194, ¶ 104.

¶ 63. As we noted in State v. Howard, 211 Wis. 2d 269, 282, 564 N.W.2d 753 (1997), overruled on other grounds by State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, the United States Supreme Court set the parameters for the federal doctrine of non-retroactivity in collateral proceedings in its Teague decision. New rules merit retroactive application on collateral review only in two instances. "First, a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.' " Teague, 489 U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting in part)). "Second, a new rule should be applied retroactively if it requires the observance of 'those procedures that are implicit in the concept of ordered liberty.'" Id. (citing Mackey, 401 U.S. at 693) (Harlan, J., concurring in part and dissenting in part) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937))). In Graham, the Court defined the second element of retroactivity on collateral review as one involving a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Graham, 506 U.S. at 478. The Court explained that this retroactivity exception is meant to apply to only a small core of rules that are implicit in the concept of ordered liberty. Id.

¶ 64. The statutes at issue in Head are Wis. Stat. §§ 940.01(2)(b) and 940.05. Wisconsin Stat. § 940.01 provides that "whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony." Subsection (2) then provides:

(2) Mitigating Circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s.940.05:

(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.

¶ 65. Subsection (3) sets out the burden of proof:

(3) Burden of Proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).

¶ 66. The first-degree intentional homicide statute (§ 940.01) interacts with the second-degree intentional homicide statute (§ 940.05), which reads in part:

(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:

(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01(2) did not exist as required by s. 940.01(3).

¶ 67. Our holding in Head modified this court's ruling in Camacho "to the extent that it states that Wis. Stat. § 940.01(2)(b) contains an objective threshold element requiring a defendant to have a reasonable belief that she was preventing or terminating an unlawful interference with her person in order to raise the issue of unnecessary defensive force (imperfect self-defense)." Head, 255 Wis. 2d 194, ¶ 104. The Head court concluded that

when imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference. If the jury concludes that the person had an actual but unreasonable belief that she was in imminent danger of death or great bodily harm, the person is not guilty of first degree murder but should be found guilty of second-degree intentional homicide.

Id., ¶ 103 (emphasis added).

¶ 68. Head did not shift the burden of proof to the State. The State always had the burden of proof on imperfect self-defense. Instead, it required the State to prove beyond a reasonable doubt that the defendant did not have an actual belief that he or she was in imminent danger of death or great bodily harm or an actual belief that the force used was necessary to defend the endangered person. Head requires the State to prove actual belief as opposed to reasonable belief, but this modification involves proof of a fairly subtle difference in state of mind.

¶ 69. In Lo's case, the circuit court determined that Lo had adequately raised self-defense, and it presented perfect and imperfect self-defense jury instructions to the charge of attempted first-degree intentional homicide.¹³ Consequently, the circuit court used Wis JI — Criminal 1014, which applied this court's decision in Camacho and defined imperfect self-defense to require that Lo "reasonably believed" that, by shooting Koua Vang, he prevented or terminated an unlawful interference with his person. The jury instruction provided:

[i]f the defendant intended to kill Koua Vang; his acts demonstrated unequivocally, under all the circumstances, that he intended to kill and would have killed Koua Vang, except for the intervention of another person or some extraneous factor; and he did not reasonably believe that he was preventing or terminating an unlawful interference with his person or did not actually believe the force used was necessary to prevent imminent death or great bodily harm to himself, the defendant is guilty of attempted first degree intentional homicide.

(Emphasis added.)

¶ 70. The new rule announced in Head does not satisfy either of the Teague tests for retroactivity in a collateral proceeding. The first test does not apply because Lo's conduct was not decriminalized. The State's proof on a claim of unnecessary defense force was modified. No reasonable argument can be made that the old burden — an objective threshold of reasonableness — was or is beyond the power of the criminal lawmaking authority to proscribe.

¶ 71. The second test does not apply because substituting the words "actually believe that he was preventing or terminating a lawful interference with his person," for "reasonably believe that he was preventing or terminating an unlawful interference with his person" is not a watershed rule of criminal procedure, implicating fundamental fairness and the concept of ordered liberty.

¶ 72. The argument is made that the Head decision created a change in substantive law. In Bousley v. United States, 523 U.S. 614, 620 (1998), the Supreme Court drew a distinction between a new procedural rule and a new rule of substance, reasoning that

decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct" 'beyond the power of the criminal law-making authority to proscribe,'"... necessarily carry a significant risk that a defendant stands convicted of "an act that the law does not make criminal."

Id. at 620 (quoting Teague, 489 U.S. at 311 (quoting Mackey, 401 U.S. at 692) (Harlan, J., concurring in part and dissenting in part), and Davis v. United States, 417 U.S. 333, 346 (1974), respectively)). The Court concluded that changes in substance are not governed by the Teague decision. Id. at 621.

¶ 73. The Head case redefined the burden on the State to disprove mitigating circumstances in a prosecution for first-degree intentional homicide. The State always had the burden of proof on the elements of unnecessary defensive force. It always had to prove these elements beyond a reasonable doubt. The elements of the crime remain the same. Hence, the only change resulting from Head, as it affects this case, is a change in the jury instructions as to how the State disproves the presence of mitigating circumstance. We see this as different from proving an additional element.

¶ 74. In any event, the Supreme Court observed in Wainwright v. Stone, 414 U.S. 21 (1973), that a state is not constitutionally compelled to make retroactive its new construction of a statute. Id. at 24; see also United States v. Johnson, 457 U.S. 537, 542 (1982). To the extent that a state chooses to depart from Teague principles in a collateral proceeding, it ought to have a clear understanding of the impact of its decision on finality.¹⁴

¶ 75. In Teague, Justice O'Connor explained that "considerations of finality" are significant and compelling in the criminal context. Teague, 489 U.S. at 309. "Application of constitutional rules not in existence at the time a conviction becomes final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect." Id. "The past cannot always be erased by a new judicial declaration." Id. at 308 (quoting Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940)). These policy considerations are the foundation for § 974.06.

¶ 76. Writing in Mackey v. United States, 401 U.S. 667, Justice Harlan wrote:

Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.

Id. at 682-83 (Harlan, J. concurring).

¶ 77. Two interests that often weigh in favor of non-retroactivity are reliance on prior law and the effect of retroactivity on the administration of justice. Those interests clearly apply here.

¶ 78. First, there is no value to the system of criminal justice to apply a new rule retroactively to settled cases against those who faithfully followed the rules in place at the time of a person's criminal conviction. To illustrate, there is no deterrent value and no educational value in reversing a conviction entered by Judge Gonzalez, who relied on and followed to the letter the jury instruction dictated by this court's decision in Camacho. Consequently, even to consider retroactivity, the value to criminal defendants from the retroactive application of a new rule ought to substantially outweigh the value of upholding settled judgments.

¶ 79. Second, the retrial of Lo and others in his position would impose a heavy burden on the entire system of criminal justice. According to the Wisconsin Department of Corrections, there were 1333 persons convicted of first-degree intentional homicide incarcerated in Wisconsin institutions on December 31, 2002.¹⁵ Every defendant who received or requested an instruction on imperfect self-defense after Camacho but before Head could argue that his or her conviction should be reconsidered and that he or she should be given a new trial.

¶ 80. Third, persons convicted of first-degree intentional homicide are sentenced to life in prison. The State might be unable to retry many first-degree intentional homicide cases because of the passage of time and the death or unavailability of witnesses.

¶ 81. Fourth, the fact that a defendant did not receive the revised imperfect self-defense instruction at trial does not mean that the State could not or did not actually meet its burden of proof at trial. In Lo's case, for example, the State was entitled in 1996 to overcome his affirmative defense if it proved beyond a reasonable doubt that Lo did not reasonably believe that he was preventing or terminating an unlawful interference with his person, or Lo "did not actually believe the force used was necessary to prevent imminent death or great bodily harm to himself." The latter element has not changed. Lo's jury might well have noted that Koua Vang was shot in the back of his right arm, when he was 40 to 50 feet away from Lo.

¶ 82. Errors in jury instructions often give rise to new rules. But corrections in jury instructions seldom lead to retroactivity in collateral proceedings. See Gilmore v. Taylor, 508 U.S. 333 (1993) (unconstitutionality of pattern jury instruction); Engle v. Isaac, 456 U.S. 107, 119-21 (1982) (burden of proof for self defense).

¶ 83. In Lo's case the jury was not precluded from considering imperfect self-defense. It was given two options on self-defense. In addition, the jury was instructed that a person who provokes an attack is not allowed to use or threaten force in self-defense against the attack. If the person provokes an attack that causes him to reasonably believe that he is in imminent danger of death or great bodily harm then he may respond with self-defense. However, this person cannot threaten or use force likely to cause death or great bodily harm unless he reasonably believe he has exhausted every other reasonable means to escape or avoid death or great bodily harm.

¶ 84. The court's instruction was correct at the time it was given and it would be only slightly different today. We conclude that the instructional error recognized in Head need not be applied retroactively to Anou Lo. Such a result would disregard the State's reliance on prior law and have a deleterious effect on the administration of justice. We agree with the sentiments of the late Justice Powell, who wrote in Schneckloth v. Bustamonte, 412 U.S. 218 (1973),

No effective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial and that every incarceration is unfounded. At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation but rather should look forward to rehabilitation and to becoming a constructive citizen.

Id. at 262 (Powell, J., concurring).

V

¶ 85. For the reasons set forth, we affirm this court's ruling in Escalona and we hold that Head is not to be applied retroactively to cases on collateral review. Therefore, we affirm Anou Lo's conviction.

By the Court. — The decision of the court of appeals is affirmed.

1 All subsequent references to the Wisconsin Statutes are to the 1999-2000 volumes unless otherwise indicated.

2 An investigator for the City of La Crosse Police Department acknowledged that Lo was not a member of a gang at this time. He was only associated with members of the street gang referred to as the Imperial Gangsters.

3 Lo's § 974.06 motion identified numerous grounds for relief: the trial court's failure to instruct on reckless endangerment as a lesser included offense of the attempted homicide; admission of evidence that Lo had sexually assaulted another youth; admission of evidence that Lo was on juvenile supervision; failure to identify specifically who was endangered under Count 2; reversal was warranted in the interests of justice; errors in the jury instructions and prosecutorial misconduct and ineffectiveness of counsel to properly object; failure to exclude "other acts" evidence and ineffectiveness of trial counsel for not properly objecting to such evidence; ineffectiveness of counsel for not retaining a ballistic expert; presence of a biased juror on the jury; and defective jury instructions regarding reasonable doubt and imperfect self-defense. For purposes of this opinion, we concern ourselves not with any specific substantive claim Lo addresses, but with the sufficient reason given by Lo for not having raised these claims earlier, which was ineffective assistance of both postconviction and appellate counsel.

4 Section 974.06 was created by chapter 255, section 63, Wis. Laws of 1969, which was effective July 1, 1970.

5 28 U.S.C. § 2255 was enacted June 25, 1948, ch. 646, 62 Stat. 967 (1948), and amended May 24, 1949, § 114, ch. 139, 63 Stat. 105.

6 Section 1 of the 1966 Uniform Post-Conviction Procedures Act reads in part:

§ 1. [Remedy — To Whom Available — Conditions].

(a) Any person who has been convicted of, or sentenced for, a crime and who claims:

(1) that the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this state;

(2) that the court was without jurisdiction to impose sentence;

(3) that the sentence exceeds the maximum authorized bylaw;

(4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

(6) that his sentence has expired, his probation, parole, or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other Testraint; or

(6) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;

may institute, without paying a filing fee, a proceeding under this Act to secure relief.

Unif. Post-Conviction Procedure Act § 8, 11A U.L.A. 274-75 (Master ed. 1995).

7 Wisconsin Stat. § 974.06(3) provides:

Unless the motion and the files and records of the action conclusively show that the person is entitled to no relief, the court shall:

(a) Cause a copy of the notice to be served upon the district attorney who shall file a written response within the time prescribed by the court.

(b) If it appears that counsel is necessary and if the defendant claims or appears to be indigent, refer the person to the state public defender for an indigency determination and appointment of counsel under ch. 977.

(c) Grant a prompt hearing.

(d) Determine the issues and make findings of fact and conclusions of law. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the person as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the person or resentence him or her to grant a new trial or correct the sentence as may appear appropriate.

8 In State v. Klimas, 94 Wis. 2d 288, 288 N.W.2d 157 (Ct. App. 1979), the court of appeals "relied on the Bergenthal conclusion that all constitutional issues must be considered in postconviction relief proceedings." State v. Escalona-Naranjo, 185 Wis. 2d 168, 182 n.11, 517 N.W.2d 157 (1994). However, this court overruled the language in Klimas that allowed all constitutional issues to be considered in postconviction motions regardless of whether such constitutional issues could have been raised earlier. Id.

9 Support for this conclusion can he found in the note to § 63, ch. 255, Laws of 1969, which reads: "Sub. (4) is taken from the Uniform Post-Conviction Procedure Act and is designed to compel a prisoner to raise all questions available to him in one motion." Note to § 63, ch. 255, Laws of 1969 (emphasis added).

10 The 1955 Uniform Post-Conviction Procedure Act reads in part:

§ 1. [Remedy — To Whom Available — Conditions].—Any person convicted of a felony and incarcerated under sentence of [death or] imprisonment who claims that the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding under this Act to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction or in any other proceedings that the petitioner has taken to secure relief from his conviction.

§ 8. [Waiver of Claims]. — All grounds for relief claimed by a petitioner under this Act must be raised in his original or amended petition, and any grounds not so raised are waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.

11 Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal. Therefore, in Loop v. State, 65 Wis. 2d 499, 222 N.W.2d 694 (1974), where the defendant filed a § 974.06 motion challenging his conviction without having previously filed a § 974.02 motion or pursued a direct appeal, he was permitted to raise a constitutional issue not raised on direct appeal because no direct appeal had been sought. We agree with this analysis. However, we reaffirm Escalona's criticism of that part of Loop which stated: "Issues of constitutional dimension can be raised on direct appeal and can also be raised on 974.06 motions." Loop, 65 Wis. 2d at 502; see also Escalona, 185 Wis. 2d at 184-85 (discussing Loop). If, after a direct appeal, a § 974.06 motion was filed hut it did not raise a constitutional claim, then that claim is barred if it could have been raised on direct appeal and there is no showing of a "sufficient reason" as to why it was not raised.

12 "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989).

13 Lo's claim of self-defense was based on the fact that Koua Vang was a member of the TMCs; that the TMCs had threatened to "get" Lo and his brothers; that there had been other shootings committed by TMC members prior to the incident between Lo and Vang; that, before Lo shot Vang, Vang had made a quick move to his waistband; and that Vang did in fact have a gun in his pants when Lo shot him.

14 This court has adopted the rule from Griffith v. Kentucky, 479 U.S. 314 (1987), for retroactivity of a new rule of criminal procedure. State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152 (1993). That rule provides: "a new rule for the conduct of criminal prosecutions is to he applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Id. at 694. The Griffith text distinguishes cases that are pending on direct review and are not yet final from cases on collateral review. This explains why there is a more stringent test for the retroactivity of new criminal "rules" in collateral proceedings.

15 Wisconsin Department of Corrections report on "Frequency of Each Offense by Statute and Offenses Description 12/31/2002 Incarcerated Adult Population," (CIPIS) Monthly Report File (month ending 12/31/2002).