State v. Huandra J. Murray

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 19, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1243 Cir. Ct. No. 2015CF1197

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

HUANDRA J. MURRAY,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Brown County:
MARC A. HAMMER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Huandra Murray, pro se, appeals an order denying
his motion for postconviction relief and a subsequent order denying his motion for
No. 2021AP1243

reconsideration. Murray argues that the circuit court erred by: (1) concluding he
had failed to establish a Brady1 violation; and (2) failing to hold the State in
contempt for its alleged violation of a postconviction discovery order.

¶2 We conclude that Murray’s Brady claim is procedurally barred. We
further conclude that the circuit court did not erroneously exercise its discretion by
declining to hold the State in contempt. We therefore affirm.

BACKGROUND

¶3 The State charged Murray with multiple crimes based on allegations
that he had attacked and sexually assaulted a woman with whom he lived and
shared a child. In September 2016, a jury found Murray guilty of second-degree
sexual assault, false imprisonment, and second-degree recklessly endangering
safety, but not guilty of misdemeanor battery and intimidation of a victim. The
circuit court imposed sentences totaling seven years’ initial confinement followed
by ten years’ extended supervision, consecutive to another sentence that Murray
was then serving.

¶4 Murray subsequently filed a postconviction motion for resentencing
under WIS. STAT. RULE 809.30 (2021-22),2 which the circuit court denied. Murray
then appealed both his judgment of conviction and the order denying his
postconviction motion. On appeal, however, Murray abandoned his claim that he
was entitled to resentencing and instead argued that a comment the court made in

1
See Brady v. Maryland, 373 U.S. 83 (1963).
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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front of the jury constituted plain error warranting a new trial. We rejected that
argument and affirmed Murray’s judgment of conviction.

¶5 In October 2020, Murray, pro se, filed a second postconviction
motion “for [an] evidentiary hearing for a Brady violation.”3 (Formatting altered.)
Murray alleged that in response to a pretrial discovery request filed by his trial
attorney in the instant case, the district attorney’s office had produced recordings
of eight of his jail phone calls. He claimed, however, that the district attorney’s
office actually possessed recordings of “[h]undreds” of his jail phone calls and had
provided those recordings to his probation agent “in order to get [him] revoked” in
a separate case.

¶6 The circuit court initially denied Murray’s postconviction motion by
letter, without a hearing, explaining, “Nowhere in your submitted materials is
there any suggestion that you have met the minimal requirements necessary for the
court to hold an evidentiary hearing on a Brady violation.” In response, Murray
asserted that he was unable to prove the first component of a Brady violation—
i.e., that the evidence at issue was favorable to him—without access to the
recorded jail phone calls. Murray further claimed that the district attorney’s office
had “ignored” his repeated requests to turn over the recordings.

¶7 On January 25, 2021, the circuit court ordered the State to duplicate
all of the recordings in its files and provide them to Murray. In response, the State
sent Murray copies of the same eight phone calls that were previously provided to

3
Murray characterized his October 2020 motion as arising under WIS. STAT.
RULE 809.30. On appeal, the State asserts—and Murray concedes—that the motion was actually
filed pursuant to WIS. STAT. § 974.06.

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his trial attorney and introduced into evidence at trial. Murray then asked the
court to find the State in contempt for failing to comply with the January 25, 2021
order. Murray again alleged that the district attorney’s office had recordings of
“hundreds” of his jail phone calls in its possession.

¶8 The circuit court ultimately held a hearing on Murray’s
postconviction motion and contempt motion. Following the hearing, the court
determined that the district attorney’s office “did not commit contemptible action”
because it had given Murray all of the recordings in its possession. The court also
denied Murray’s Brady claim, concluding that Murray had failed to meet his
burden to establish a Brady violation. Murray later filed a motion for
reconsideration, which the court denied. This appeal follows.4

DISCUSSION

I. Brady claim

¶9 As discussed above, the circuit court denied Murray’s Brady claim
on the merits, concluding that Murray had failed to establish a Brady violation.
We affirm the court’s denial of the Brady claim on different grounds. See State v.
Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (2010) (“[W]e
may affirm the circuit court’s order on different grounds.”). Namely, we agree
with the State that the Brady claim is procedurally barred.

4
Although Murray appeals both the order denying his postconviction motion and the
order denying his motion for reconsideration, he does not develop any arguments on appeal
specifically pertaining to the motion for reconsideration. Accordingly, we do not separately
address the circuit court’s denial of that motion.

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¶10 When the time for pursuing postconviction relief or an appeal under
WIS. STAT. § 974.02 has expired, a defendant may seek postconviction relief under
WIS. STAT. § 974.06. Sec. 974.06(1). However, a defendant is precluded from
raising any claim in a § 974.06 motion that could have been raised in a prior
postconviction motion or on direct appeal, unless the defendant demonstrates a
sufficient reason for his or her previous failure to raise the claim. See § 974.06(4);
State v. Escalona-Naranjo, 185 Wis. 2d 168, 173, 181-82, 517 N.W.2d 157
(1994). Accordingly, a successive postconviction motion “must allege specific
facts that, if proved, would constitute a sufficient reason for failing to raise” a
claim in a prior postconviction motion or on direct appeal. State v. Allen, 2010
WI 89, ¶91, 328 Wis. 2d 1, 786 N.W.2d 124. Whether a § 974.06 motion alleges a
sufficient reason for failing to bring available claims earlier is a question of law
that we review de novo. State v. Romero-Georgana, 2014 WI 83, ¶30, 360
Wis. 2d 522, 849 N.W.2d 668.

¶11 Here, Murray’s postconviction motion did not identify any reason—
let alone a sufficient reason—for his failure to raise his Brady claim on direct
appeal. For instance, Murray’s motion did not allege that he had a sufficient
reason for failing to raise his Brady claim on direct appeal because the recorded
jail phone calls constituted newly discovered evidence. In any event, we agree
with the State that the record does not support a claim that the calls were newly
discovered evidence. As the State notes, the record shows that recordings of the
jail phone calls were provided to Murray’s revocation attorney during revocation
proceedings in a separate case. The revocation proceedings were completed in
January 2016, well before Murray’s September 2016 trial in the instant case.
While Murray claims that he has never heard the recordings, he does not dispute
that his revocation attorney had copies of the recordings, nor does he allege that he

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was unaware of the recordings’ existence prior to his conviction in this case.
Murray was a party to the calls, and he does not allege he was unaware prior to his
conviction that the calls had been recorded. Because the recordings were not
discovered after Murray’s conviction, they do not qualify as newly discovered
evidence. See State v. McAlister, 2018 WI 34, ¶31, 380 Wis. 2d 684, 911 N.W.2d
77.

¶12 Murray’s postconviction motion also failed to allege that his
postconviction/appellate attorney was ineffective by failing to obtain the
recordings of the jail phone calls and raise a Brady claim on direct appeal. See
Romero-Georgana, 360 Wis. 2d 522, ¶36 (“In some instances, ineffective
assistance of postconviction counsel may be a sufficient reason for failing to raise
an available claim in an earlier motion or on direct appeal.”). In his reply brief,
Murray asserts—for the first time—that his “[a]ppellate counsel had the
responsibility to raise the [Brady] issue [on direct appeal] and did not” do so. To
the extent Murray means to argue that he had a sufficient reason for failing to raise
his Brady claim on direct appeal because his postconviction/appellate attorney was
constitutionally ineffective, this argument comes too late. Murray was required—
but failed—to allege specific facts in his postconviction motion to support an
ineffective assistance of postconviction/appellate counsel claim. See Allen, 328
Wis. 2d 1, ¶91.

¶13 Furthermore, to demonstrate that his postconviction/appellate
attorney was ineffective by failing to raise a Brady claim on direct appeal, Murray
would need to show that the Brady claim is clearly stronger than the issues
counsel actually raised. See Romero-Georgana, 360 Wis. 2d 522, ¶4. Murray has
not developed any argument that his Brady claim meets the “clearly stronger”
standard. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.

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1992) (court of appeals need not address undeveloped arguments). Moreover, the
record does not provide any basis to conclude that Murray would be able to make
such a showing. To prevail on his Brady claim, Murray would need to show,
among other things, that the recorded jail phone calls are “favorable” to him. See
State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468. Murray
has never asserted that the recordings contain favorable evidence. In fact, when
the circuit court asked Murray if he had any evidence that the calls were favorable
to his defense, Murray conceded that he did not.5 On this record, there are no
grounds to conclude that Murray’s Brady claim is clearly stronger than the issues
raised on direct appeal.

¶14 Because Murray has not presented a sufficient reason for failing to
raise his Brady claim on direct appeal, the claim is procedurally barred under WIS.
STAT. § 974.06(4) and Escalona-Naranjo. We therefore affirm the circuit court’s
denial of the Brady claim.

II. Contempt motion

¶15 Murray also argues that the circuit court erred by denying his motion
to hold the State in contempt. “We review a circuit court’s use of its contempt
power for [an] erroneous exercise of discretion.” Monicken v. Monicken, 226
Wis. 2d 119, 124, 593 N.W.2d 509 (Ct. App. 1999). We will uphold the court’s
discretionary decision as long as the court examined the relevant facts, applied a
proper standard of law, and used a demonstrated rational process to reach a

5
Murray claims that he has no way of knowing whether the calls contain favorable
evidence because he does not have access to the recordings. As the State aptly notes, however,
“[t]he jail calls that Murray wants are his jail calls …. If anyone would know if any of his jail
calls included evidence favorable to his defense, Murray would.”

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reasonable conclusion. LeMere v. LeMere, 2003 WI 67, ¶13, 262 Wis. 2d 426,
663 N.W.2d 789. When reviewing a discretionary decision, we accept the court’s
factual findings unless they are clearly erroneous, but we review any questions of
law independently. Monicken, 226 Wis. 2d at 125.

¶16 “A person may be held in contempt if he or she refuses to comply
with an order made by a competent court.” Id. Here, the order in question
required the State to duplicate all of the recorded phone calls in its files and
provide them to Murray. In response to that order, the State provided Murray with
a disk containing eight recorded phone calls—the same calls that had previously
been provided to Murray’s trial attorney and introduced into evidence at trial. As
discussed above, Murray sought to hold the State in contempt, asserting that the
district attorney’s office actually had “hundreds” of recorded phone calls in its
possession. In support of that claim, Murray stated that during his revocation
hearing in a separate case, his probation agent had testified that she received
recordings of “hundreds” of his jail phone calls from the district attorney’s office.

¶17 In response to Murray’s contempt motion, the prosecutor informed
the circuit court by letter that her office had performed “an exhaustive search” and
confirmed that it “did not have any calls of the Defendant in [its] possession other
than the ‘eight calls’ the State ALREADY turned over several times to the
Defendant and his counsel.” The prosecutor further stated that she had spoken
with Murray’s probation agent and determined that the agent obtained recordings
of Murray’s phone calls directly from the jail, not from the district attorney’s
office.

¶18 The prosecutor also provided the circuit court with an October 2015
email exchange between Murray’s probation agent and a lieutenant from the

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Jail Division of the Brown County Sheriff’s Office. In the emails, Murray’s agent
asked the lieutenant to provide “phone calls between Mr. Murray and his victim,”
and the lieutenant responded that CDs containing those calls would be ready the
following morning. During the hearing on Murray’s postconviction motion and
contempt motion, Murray’s probation agent confirmed that she had received
recordings of the phone calls directly from the jail and had not received any
recordings from the district attorney’s office.

¶19 On this record, the circuit court concluded that the State had not
committed a “contemptible action”—that is, the State did not violate the court’s
order requiring it to produce copies of the recordings in its files—because the
State had given Murray all of the recordings in its possession. Stated differently,
the court reasoned that the State could not be held in contempt “for failing to turn
over materials that [it] did not have.” The court’s finding that the State had given
Murray all of the recordings in its possession is supported by the evidence
summarized above and is not clearly erroneous. Based on that finding, the court
reasonably determined that the State had not committed a contemptible action. As
such, the court did not erroneously exercise its discretion by failing to hold the
State in contempt.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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