State v. Martez Columbus Fennell

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.
July 29, 2025
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. 2023AP634 Cir. Ct. No. 2016CF712

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARTEZ COLUMBUS FENNELL,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARK A. SANDERS, Judge. Affirmed.

Before White, C.J., Geenen, and Colón, 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. Martez Columbus Fennell, pro se, appeals from an
order that denied his postconviction motion filed under WIS. STAT. § 974.06
No. 2023AP634

(2023-24).1 He claims that his trial counsel was ineffective in numerous ways and
that his postconviction counsel was ineffective in turn for failing to raise or to
adequately address the allegations of trial counsel’s ineffectiveness that Fennell
alleges now. We conclude that the claims are barred. Accordingly, we affirm.

BACKGROUND

¶2 The State charged Fennell with one count of first-degree reckless
homicide by use of a dangerous weapon as a party to a crime and one count of
possessing a firearm while a felon. We described the underlying events in detail
in a prior decision, State v. Fennell (Fennell I), No. 2020AP487-CR, unpublished
slip op. (WI App May 25, 2021). Only a brief overview is required here.

¶3 On November 22, 2015, at 5:07 a.m., police responded to a reported
shooting in the 8000 block of West Congress Street. There, they found T.H. dead
with multiple gunshot wounds. At 5:11 a.m. that same day, a woman brought
Fennell to the hospital. He had five gunshot wounds. Pursuant to its protocol, the
hospital notified law enforcement, which began an investigation. Police spoke to
the woman accompanying Fennell, and she said that Fennell had been shot near
84th and West Congress Streets. She also gave police a cellphone and said that it
belonged to Fennell. Police obtained a warrant to search the phone and found four
text messages sent by Devone Jackson earlier that night. The messages implicated
Fennell in T.H.’s shooting death.

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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¶4 The matter proceeded to a jury trial. The jury found Fennell guilty
of first-degree reckless homicide by use of a dangerous weapon as a party to a
crime and acquitted him of possessing a firearm while a felon.

¶5 Fennell, by postconviction counsel, filed a postconviction motion
under WIS. STAT. RULE 809.30, alleging that his trial counsel was ineffective for
failing to seek to suppress the four text messages. The circuit court denied the
motion, and this court affirmed, concluding that trial counsel’s performance was
neither deficient nor prejudicial to the defense. Fennell I, No. 2020AP487-CR,
¶30. Additionally, we rejected Fennell’s challenge to the sufficiency of the
evidence. Id., ¶41.

¶6 Fennell, proceeding pro se, then filed the postconviction motion
underlying this appeal. He alleged again that his trial counsel was ineffective for
failing to pursue suppression of the text messages that police found on his phone.
He also raised new claims that his trial counsel was ineffective for failing to: move
to suppress the statements that he made to police; move to suppress his bloody
clothing that police collected at the hospital; impeach the detective who testified
about retrieving the bloody clothes; and object to portions of the jury instructions
and verdict forms pertaining to the allegation that Fennell or a co-actor used a
dangerous weapon to commit the homicide. Fennell alleged that his
postconviction counsel was ineffective in turn for inadequately raising the claim
relating to suppression of the text messages and for failing to raise the remaining
claims. The circuit court denied the motion without a hearing. Fennell appeals.

DISCUSSION

¶7 Pursuant to WIS. STAT. § 974.06(4), a person who wishes to litigate a
second or subsequent postconviction motion must demonstrate a sufficient reason

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for failing to raise or adequately address his or her claims in prior postconviction
proceedings. State v. Escalona-Naranjo, 185 Wis. 2d 168, 184, 517 N.W.2d 157
(1994). Ineffective assistance of postconviction counsel may, in some
circumstances, constitute a sufficient reason for an additional postconviction
motion, but a bare allegation of ineffective assistance of postconviction counsel
will not suffice to clear the procedural bar imposed by § 974.06. State v. Romero-
Georgana, 2014 WI 83, ¶36, 360 Wis. 2d 522, 849 N.W.2d 668. Rather, a
convicted person must “make the case” of postconviction counsel’s ineffective
assistance. State v. Balliette, 2011 WI 79, ¶67, 336 Wis. 2d 358, 805 N.W.2d 334.

¶8 To “make the case” that postconviction counsel was ineffective, a
convicted person must satisfy the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Balliette, 336 Wis. 2d 358, ¶¶28, 67. The test
is familiar and governs allegations of ineffective assistance levelled against both
trial counsel and postconviction counsel. Id., ¶¶21, 28. Specifically, a person
must show a deficiency in counsel’s performance and prejudice as a result.
Strickland, 466 U.S. at 687.

¶9 To satisfy Strickland’s deficiency prong, a convicted person must
show that counsel’s actions or omissions “fell below an objective standard of
reasonableness,” and the person must demonstrate how he or she will establish
deficient performance if granted a hearing. Balliette, 336 Wis. 2d 358, ¶¶67-68.
To satisfy the prejudice prong, a person must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id., ¶24 (citation omitted). Our case law
provides a well-settled methodology for the convicted person to apply, requiring
the person to allege “sufficient material facts—e.g., who, what, where, when, why,

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and how—that, if true, would entitle him to the relief he seeks.” State v. Allen,
2004 WI 106, ¶2, 274 Wis. 2d 568, 682 N.W.2d 433.

¶10 Whether counsel’s performance was deficient and whether the
deficiency was prejudicial are questions of law that we review independently.
State v. Reinwand, 2019 WI 25, ¶18, 385 Wis. 2d 700, 924 N.W.2d 184. We may
consider either the deficiency or the prejudice prong of the analysis first, and if the
convicted person fails to make an adequate showing as to one prong, we need not
address the other. Strickland, 466 U.S. at 697. When assessing the adequacy of
the allegations, we consider only the four corners of the postconviction motion,
not the appellate briefs. Allen, 274 Wis. 2d 568, ¶27.

¶11 We begin by considering Fennell’s allegation that his postconviction
counsel was ineffective for failing to raise viable claims for relief in the original
postconviction motion. When a convicted person alleges that postconviction
counsel was ineffective for failing to raise claims, proof of the deficiency prong
requires the person to allege and show that the neglected issues were “clearly
stronger” than the issues that postconviction counsel pursued. Romero-Georgana,
360 Wis. 2d 522, ¶¶4, 46. This requirement reflects that postconviction counsel is
not required to raise every arguably meritorious claim but instead is free to select
the strongest issues from among those available to maximize the likelihood of
success on direct review. Smith v. Robbins, 528 U.S. 259, 288 (2000). The
burden is on the convicted person to satisfy the clearly stronger standard with
allegations of sufficient material fact that answer “ʻwho, what, where, when, why,
and how.’” Romero-Georgana, 360 Wis. 2d 522, ¶58 (citation omitted).

¶12 In this case, Fennell acknowledged in his postconviction motion that
he must satisfy the “clearly stronger” standard, but he did not complete the

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required analysis. Instead, he offered conclusory assessments of his past and
current claims. Specifically, he asserted that the issues he raised on his own behalf
were “significant, obvious, and clearly stronger” than the issue that his
postconviction counsel raised in the original postconviction motion; and he stated
that his new arguments were “stronger, winning arguments,” while counsel’s
arguments were “weaker (losing) issues and arguments[.]” He did not
demonstrate, however, that postconviction counsel’s selection of issues was
objectively unreasonable, nor did he analyze the comparative merits of the new
claims in relation to the original postconviction claim.

¶13 Fennell thus offered only his opinion about the relative strengths of
the various claims and did not provide the factual basis required for a reviewing
court to assess those strengths. See Allen, 274 Wis. 2d 568, ¶21. Accordingly,
Fennell failed to make the case that his postconviction counsel performed
deficiently by ignoring claims that were clearly stronger than those that counsel
pursued. See Romero-Georgana, 360 Wis. 2d 522, ¶62 (explaining that courts
“will not assume ineffective assistance from a conclusory assertion”).

¶14 Because Fennell did not demonstrate that postconviction counsel
performed deficiently, we need not and will not address prejudice. See Strickland,
466 U.S. at 697. Further discussion of claims that postconviction counsel did not
pursue in Fennell I is unwarranted.

¶15 Fennell separately alleged that his postconviction counsel was
ineffective for inadequately raising the claim presented in Fennell’s original
postconviction motion, namely, trial counsel’s alleged ineffectiveness for failing
to seek suppression of the four text messages from Jackson. According to Fennell,
his postconviction counsel “underdeveloped” one argument in support of

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suppression and failed to provide sufficient legal authority for a second argument.
Fennell further asserted that if his postconviction counsel had made and developed
the arguments he proposed, the outcome of his original postconviction motion
would have been different because those arguments “would have compelled a
finding that trial counsel’s failure to file a motion to suppress the text messages
constituted” ineffective assistance. The circuit court properly concluded that this
claim was barred because Fennell previously litigated it.

¶16 In Fennell I, we determined that Fennell did not suffer any prejudice
from trial counsel’s performance in regard to the admission of the text messages,
even assuming some deficiency in trial counsel’s performance in failing to seek to
suppress them. Instead, we explicitly “agree[d] with the circuit court that ‘there is
no reasonable probability that the outcome of the trial would have been different’
without the text messages.” Id., No. 2020AP487-CR, ¶33. Fennell may not
relitigate this issue. State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512
(Ct. App. 1991) (stating that a matter once litigated in a postconviction proceeding
cannot be relitigated in a subsequent postconviction motion “no matter how
artfully the defendant may rephrase the issue”). For all the foregoing reasons, we
affirm.

By the Court.—Order affirmed.

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

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