State v. Alonzo Lee Peavy

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.
March 24, 2026
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. 2024AP2568 Cir. Ct. No. 1993CF932522A

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALONZO LEE PEAVY,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Milwaukee County:
MICHELLE A. HAVAS, Judge. Affirmed.

Before White, C.J., Colón, P.J., and Donald, 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. 2024AP2568

¶1 PER CURIAM. Alonzo Lee Peavy, pro se, appeals from the order
denying his postconviction motion filed pursuant to WIS. STAT. § 974.06 (2023-
24),1 and from the order denying his motion for reconsideration. Upon review, we
affirm.

BACKGROUND

¶2 Peavy was convicted in 1993 of first-degree intentional homicide
and attempted first-degree intentional homicide, both with the use of a dangerous
weapon and as a party to a crime, relating to a shooting that occurred at a tavern
on North Avenue in Milwaukee. Peavy and his cousin, Jamal Purifoy, were both
charged with killing Tina Terry, the tavern’s owner, and attempting to kill Chris, 2
who was working as a bouncer that night.

¶3 Chris testified at Peavy’s trial that three men, later identified as
Peavy, Purifoy, and a third man, Anthony Johnson, entered the tavern at
approximately 2:15 a.m. Chris told them it was closing time and they should
leave. Chris testified that Peavy then pulled out a gun and shot him in the chest.
Chris started struggling with Peavy and Purifoy, and he was shot a second time, in
the groin, by Purifoy. Chris saw Peavy shoot Tina. He was then shot two more
times, in the wrist and the buttocks.

¶4 Another employee from the tavern also testified. He identified
Peavy as the person who shot Chris during the initial verbal exchange when the

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
We use a pseudonym for this victim, pursuant to WIS. STAT. RULE 809.86.

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No. 2024AP2568

men came in the bar. The employee further stated that one of the men took money
out of the cash register before fleeing the tavern.

¶5 Also testifying for the State was Johnson, the third man who entered
the tavern with Peavy and Purifoy. Johnson testified that it was Purifoy who had
shot Chris, and that Peavy shot Terry.

¶6 Additionally, one of the investigating detectives testified that the gun
used in the shooting was defective. He explained that Chris had told them that
during the altercation “there appeared to be something strange or funny going on
with the people that were shooting the gun and the handling of this gun as if they
had to do something to this gun before each shot.” The detective then questioned
Peavy about this, who stated that the gun they had used had a defect where after it
was fired “you would have to take your hand and manually turn the cylinder to get
the next bullet in line before the gun would fire.” Peavy said that once the gun
was fired, “if you just pull the trigger, the cylinder would not rotate.”

¶7 Peavy testified in his own defense. He claimed the altercation
started as an argument between Purifoy and Chris. Peavy said that Chris pulled
out “something silver” from a pouch, which Peavy believed to be a gun. Peavy
said he heard a shot, but he did not know who had shot whom. Peavey admitted
he shot Terry after he had taken the gun from Purifoy; he said he heard her behind
him and “panicked,” thinking his “life was in danger.”

¶8 Peavy requested jury instructions for the lesser-included offenses of
second-degree intentional homicide and attempted second-degree intentional
homicide, based on imperfect self defense. The circuit court denied this request,
concluding the evidence did not support giving the lesser-included instructions.
The jury convicted Peavy as charged.

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No. 2024AP2568

¶9 Peavy, by counsel, filed postconviction motions alleging several
errors by the circuit court. Specifically, he argued that the court erred by not
providing jury instructions for the lesser-included offenses based on imperfect self
defense; that the court improperly struck witness testimony, which violated his
confrontation rights; and that the court improperly permitted the State to recall
Peavy for purposes of inquiring about his prior criminal conviction. After a
hearing, the circuit court denied the motions.

¶10 Peavy appealed, raising only the argument relating to the circuit
court’s failure to provide his requested jury instructions. This court concluded
that, based on the evidence, the circuit court did not err in refusing to provide the
instructions for lesser-included offenses based on imperfect self defense. We
therefore affirmed Peavy’s judgment of conviction and the order denying his
postconviction motions, see State v. Peavy, No. 94-3286-CR, unpublished slip op.
(WI App Sept. 12, 1996), and our supreme court denied Peavy’s petition for
review.

¶11 In April 2024, Peavy filed the pro se WIS. STAT. § 974.06
postconviction motion underlying this appeal.3 In that motion, he alleged both his
trial counsel and postconviction counsel were ineffective for failing to
(1) “investigate” Purifoy’s actions that night and obtain a statement from him;
(2) “investigate” the nature, extent and location of Terry’s wound, which Peavy
believes demonstrates that he did not intend to kill her; and (3) “investigate” the
State’s “manipulative intent” in charging Peavy with intentional homicide and

3
In the intervening years, Peavy successfully challenged his restitution order, which was
vacated in December 2017.

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No. 2024AP2568

attempted homicide rather than robbery and felony murder, which would have
reduced his sentence exposure.

¶12 The circuit court found that Peavy failed to establish that his current
claims were clearly stronger than those claims brought in his direct appeal.
Furthermore, the court found his current claims lacked merit. It therefore denied
his motion without a hearing. This appeal follows.

DISCUSSION

¶13 In a motion brought under WIS. STAT. § 974.06, a defendant must
demonstrate that there is a “sufficient reason” that the claims in that motion were
not raised in a prior motion or direct appeal. State v. Escalona-Naranjo, 185
Wis. 2d 168, 185-86, 517 N.W.2d 157 (1994). 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.

¶14 “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.” Id., ¶36. However, “a defendant who alleges in a
[WIS. STAT.] § 974.06 motion that his postconviction counsel was ineffective for
failing to bring certain viable claims must demonstrate that the claims he wishes to
bring are clearly stronger than the claims postconviction counsel actually
brought.” Romero-Georgana, 360 Wis. 2d 522, ¶4. “The ‘clearly stronger’
standard is appropriate when postconviction counsel raised other issues before the
circuit court, thereby making it possible to compare the arguments now proposed
against the arguments previously made.” Id., ¶46.

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¶15 In other words, a defendant is precluded from raising any claim in a
WIS. STAT. § 974.06 motion if that claim could have been brought on direct
appeal, see Escalona-Naranjo, 185 Wis. 2d at 185, unless he or she can
demonstrate that the claim is “clearly stronger” than the claims appellate counsel
previously brought, see Romero-Georgana, 360 Wis. 2d 522, ¶4. If the defendant
cannot establish that claims brought under § 974.06 are clearly stronger, then the
claims are procedurally barred. Romero-Georgana, 360 Wis. 2d 522, ¶¶4-5.

¶16 In addressing the clearly stronger standard in his motion, Peavy
provides no meaningful comparison of his current claims to those previously
brought by his postconviction counsel. See id., ¶46. Rather, he simply makes a
conclusory statement that his current claims are stronger because they would have
led to a different outcome as “reasonable doubt would have been established.” As
such, in addition to failing to overcome the procedural bar, Peavy also failed to
sufficiently plead his claims. State v. Allen, 2004 WI 106, ¶15, 274 Wis. 2d 568,
682 N.W.2d 433 (“It has been said repeatedly that a postconviction motion for
relief requires more than conclusory allegations.”).

¶17 In his appellate brief, Peavy expands on his clearly stronger
argument by asserting that it does not apply to his claims. In support, he cites
State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, abrogated by
State ex rel. Warren v. Meisner, 2020 WI 55, 392 Wis. 2d 1, 944 N.W.2d 588, in
which the majority stated that the clearly stronger standard does not apply to every
type of ineffective assistance claim, “such as the failure to investigate.” Id., ¶60
n.12. This note was in response to a point made by the dissent in Starks regarding
the “practical application” of the clearly stronger test; specifically, that counsel has
a duty to “make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary,” and therefore a reviewing court

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No. 2024AP2568

would not need to determine whether a claim not previously raised was clearly
stronger if “the allegation of ineffectiveness is premised upon a failure to
adequately investigate a claim in the first place.” Id., ¶99 (Bradley, J. dissenting)
(citation omitted).

¶18 First, we review only the allegations contained in the four corners of
a postconviction motion. Allen, 274 Wis. 2d 568, ¶27. Furthermore, Peavy’s
labeling of his current ineffective assistance claims as a “failure to investigate”
does not necessarily reflect the true nature of the claims, particularly with regard
to his second and third claims. See Amek bin-Rilla v. Israel, 113 Wis. 2d 514,
521, 335 N.W.2d 384 (1983) (explaining that courts review a pro se litigant’s
pleadings based on the allegations contained within them, not the labels). And,
regardless of the label Peavy has given his claims, they nevertheless fail on the
merits.

¶19 To prevail on a claim of ineffective assistance of counsel, a
defendant must prove both that trial counsel’s performance was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). To prove that counsel was constitutionally deficient, the defendant
“must show that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. To prove prejudice, the defendant must establish
“that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. at 694. The
court need not address both prongs of the test if the defendant “cannot make a
sufficient showing” on one. State v. Mayo, 2007 WI 78, ¶61, 301 Wis. 2d 642,
734 N.W.2d 115.

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No. 2024AP2568

¶20 Furthermore, to establish that postconviction counsel was
ineffective, the defendant “bears the burden of proving that trial counsel’s
performance was deficient and prejudicial.” State v. Ziebart, 2003 WI App 258,
¶15, 268 Wis. 2d 468, 673 N.W.2d 369. The “ultimate determination of whether
counsel’s performance was deficient and prejudicial to the defense are questions
of law which this court reviews independently.” State v. Johnson, 153 Wis. 2d
121, 128, 449 N.W.2d 845 (1990).

¶21 Peavy focuses particularly on his first claim that his trial and
postconviction counsel were ineffective for failing to investigate Purifoy and
obtain a statement from him regarding the events of that night. Indeed, Peavy
attached to his motion an affidavit by Purifoy, in which he states that neither
Peavy nor Johnson knew he intended to rob the tavern, nor did they know he was
armed. Purifoy further admits to shooting Chris during the altercation because he
thought Chris was reaching for a gun, and to taking money from the cash register.
Finally, Purifoy states that he was never contacted by counsel for Peavy to provide
a statement, although counsel told Peavy that Purifoy had refused an interview.

¶22 Peavy argues this statement by Purifoy “bolsters his defense” that he
did not shoot Chris, nor did he “intentionally end[] the life of Terry,”
demonstrating that both trial and postconviction counsel were ineffective for
failing to investigate this.4 However, as the circuit court pointed out, there are
several “complications” implicated in this claim. First, Purifoy had “placed a
great deal of culpability upon Peavy” in his statements to police after the shooting.

4
Peavy does, however, acknowledge that he was convicted of being a party to a crime
for the attempted first-degree intentional homicide count relating to Chris’s shooting, as well as
for Terry’s death.

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No. 2024AP2568

In fact, the State provided an excerpt from Purifoy’s plea hearing on October 18,
1993, where Purifoy claimed that Peavy had shot Chris as well as Terry. 5 Thus,
regardless of whether Peavy’s trial counsel sought an interview from Purifoy,
Purifoy’s testimony at his plea hearing supports the decision by counsel not to call
him as a witness for Peavy’s trial.

¶23 Moreover, Purifoy did not resolve his own case relating to this
incident until after Peavy’s trial. It therefore seems unlikely that Purifoy’s counsel
would have permitted him to testify on behalf of Peavy, as Purifoy’s testimony
could have then been used against him. Additionally, as the circuit court
observed, the “familial relationship” between Peavy and Purifoy suggests that
there may be “some level of reduced credibility” to Purifoy’s purported testimony.

¶24 “[A] particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference
to counsel’s judgments.” State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d
709, 616 N.W.2d 126 (citation omitted). Given all of the “complications”
surrounding Purifoy’s statement, Peavy has not established that counsel performed
deficiently in failing to call Purifoy as a witness at trial. See Strickland, 466 U.S.
at 691.

¶25 Peavy’s second claim is that his trial counsel failed to “investigate”
the nature, extent and location of Terry’s fatal wound. However, Peavy does not
actually challenge the manner in which Terry died. Indeed, the medical

5
Purifoy pled no contest to one count of attempted first-degree intentional homicide and
one count of first-degree reckless homicide, both while using a dangerous weapon and as a party
to a crime. See State v. Purifoy, No. 95-1387-CR, unpublished slip op. (WI App Apr. 9, 1996).

9
No. 2024AP2568

examiner’s report established that Terry was shot in the chest near her shoulder,
with the bullet perforating her spinal cord resulting in her death. There was
nothing further to investigate as to the cause of her death.

¶26 Rather, Peavy’s claim relates to the intentional homicide charge for
Terry’s death. Put another way, Peavy argues that his trial counsel should have
more zealously challenged that it was not Peavy’s intent to kill Terry. Peavy notes
that he did not aim for “any of [Terry’s] vital organs,” since the bullet entered her
chest through her shoulder. Nevertheless, during his testimony, Peavy admitted to
shooting Terry at close range when she ran up behind him, with a defective gun
that required the cylinder to be manually turned before firing. Furthermore, the
record reflects that counsel did in fact address the element of intent for the
homicide charge during his closing argument.

¶27 We are not persuaded that Peavy has established that his trial
counsel performed deficiently with regard to challenging Peavy’s intent to kill
Terry. It was up to the jury to weigh the evidence, including the defective gun and
the credibility of Peavy’s testimony about his lack of intent, to determine whether
the State had met its burden of proving first-degree intentional homicide. See
State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990) (“It is the
function of the trier of fact, and not of an appellate court, to fairly resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.”). Peavy’s argument that counsel could have put
forth a more compelling argument regarding intent during the trial is mere
speculation, and a challenge to counsel’s representation must be based on more
than speculation. See Leighton, 237 Wis. 2d 709, ¶38.

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No. 2024AP2568

¶28 In a similar vein, Peavy’s third claim is that trial counsel was
ineffective for failing to “investigate” the State’s decision to charge him with
intentional homicide as opposed to felony murder. The charging decision requires
no investigation. The State has “broad discretion” in determining whether to
charge an accused and which offenses to charge, because it is “answerable to the
people of the state and not to the courts or the legislature” regarding the manner in
which it exercises that discretion. See State v. Krueger, 224 Wis. 2d 59, 67-68,
588 N.W.2d 921 (1999). “An attorney does not perform deficiently by failing to
make a losing argument.” State v. Jacobsen, 2014 WI App 13, ¶49, 352 Wis. 2d
409, 842 N.W.2d 365.

¶29 Nevertheless, Peavy argues that counsel should have addressed this
issue by “developing and presenting the facts of the robbery to the jury.”
However, the jury did hear testimony from the employee that one of the men took
money out of the cash register before fleeing the tavern. Peavy fails to explain
how any further argument by counsel regarding the robbery would have affected
the charges brought against him. See Krueger, 224 Wis. 2d at 67-68.

¶30 In fact, we observe that Peavy’s argument for this claim appears to
be an attempt to relitigate the issue of providing jury instructions for lesser-
included offenses. This is not permitted. See State v. Witkowski, 163 Wis. 2d
985, 990, 473 N.W.2d 512 (Ct. App. 1991) (“A matter once litigated may not be
relitigated in a subsequent postconviction proceeding no matter how artfully the
defendant may rephrase the issue.”).

¶31 In short, Peavy fails to demonstrate that his trial counsel performed
deficiently, and his claims therefore fail. See Strickland, 466 U.S. at 688; Mayo,

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No. 2024AP2568

301 Wis. 2d 642, ¶61. As a result, he also has not established that his
postconviction counsel was ineffective. See Ziebart, 268 Wis. 2d 468, ¶15.

CONCLUSION

¶32 Peavy’s ineffective assistance of counsel claims are either
procedurally barred, see Romero-Georgana, 360 Wis. 2d 522, ¶5, or fail on the
merits, see Strickland, 466 U.S. at 687. Accordingly, we affirm the orders
denying his postconviction motion and motion for reconsideration.

By the Court.—Orders affirmed.

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

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