Case 2023AP001556 Petition for Review Filed 02-07-2025 Page 1 of 31

FILED
Case No. 02-07-2025
CLERK OF WISCONSIN

In the SUPREME COURT

Supreme Court of the

State of Wisconsin
STATE OF WISCONSIN,

Plaintiff-Respondent,

v.

STEVEN A. AVERY,

Defendant-Appellant-Petitioner.

_______________________________________
On Review of the Decision of the Wisconsin Court of Appeals,
District II, Appeal No. 2023AP1556.
On Appeal from the Circuit Court of Manitowoc County,
Criminal Division, No. 2005CF381.
The Honorable Angela W. Sutkiewicz, Presiding Judge.

PETITION FOR REVIEW

KATHLEEN T. ZELLNER STEVEN G. RICHARDS

Admitted Pro Hac Vice WI Bar No. 1037545
IL Bar No. 6184574 EVERSON & RICHARDS, LLP
KATHLEEN T. ZELLNER & ASSOCIATES, P.C. 127 Main Street
2001 Butterfield Road Casco, Wisconsin 54205
Suite 1025 (920) 837-2653
Downers Grove, Illinois 60515 [email protected]
(630) 955-1212
[email protected]

Attorneys for Defendant-Appellant-Petitioner

COUNSEL PRESS ∙ (866) 703-9373 PRINTED ON RECYCLED PAPER

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TABLE OF CONTENTS
Page
ISSUES PRESENTED....................................................................................................................... 6
CRITERIA FOR GRANTING REVIEW...................................................................................... 6
I. Issue One - Misapplication of State v. Edmunds and Brady v. Maryland ................. 7
II. Issue Two - Misapplication of State v. Denny ........................................................... 7
III. Issue Three - Misapplication of State v. Balliette ...................................................... 8
STATEMENT OF THE CASE ........................................................................................... 8
ARGUMENT ........................................................................................................................11
I. WHETHER THE APPELLATE COURT IMPROPERLY
IMPOSED A BURDEN ON MR. AVERY TO CONCLUSIVELY
PROVE THE DENNY MOTIVE ELEMENT IN ORDER TO
SATISFY THE MATERIALITY PRONGS OF STATE V.
EDMUNDS, 2008 WI APP 33, 308 WIS. 2D 374, 746 N.W.2D 590
AND BRADY V. MARYLAND, 373 U.S. 83 (1963)?......................................11
Standard of Review...................................................................................................11
Imposing Improper Standard on Newly Discovered Evidence .........................12
Mr. Avery has not waived his Brady and Interest of Justice claims set
forth in his petition. ..................................................................................................16
II. WHETHER THE COURT OF APPEALS ERRED WHEN IT
DID NOT CORRECTLY APPLY STATE V. DENNY, 120 WIS.
2D 614, 357 N.W.2D 12 (CT. APP. 1984) TO MR. AVERY’S
POTENTIAL THIRD-PARTY SUSPECT EVIDENCE? ...............................19
Standard of Review...................................................................................................19
Mr. Avery provided sufficient facts to meet the Denny requirements
in his third § 974.06 motion. ...................................................................................19
Mr. Avery pled sufficient facts to establish that Bobby had a motive
for the murder. ..........................................................................................................20
Mr. Avery has offered even further evidence of “motive” with the
Sowinski evidence because it shows that Bobby had possession of
Ms. Halbach’s vehicle. ..............................................................................................22
Mr. Avery’s evidence satisfied the direct-connection element ...........................22

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Mr. Avery showed that there is a reasonable probability that

presenting Mr. Avery’s newly discovered evidence undermines
confidence in the outcome of Mr. Avery’s trial. ...................................................24
III. WHETHER THE COURT OF APPEALS IMPROPERLY
AFFIRMED THE CIRCUIT COURT’S DECISION TO DENY
MR. AVERY AN EVIDENTIARY HEARING? ..............................................25
Standard of Review...................................................................................................25
Mr. Avery alleged sufficient facts in his third § 974.06 motion,
entitling him to a hearing; however, the lower courts disputed those
facts instead of taking them to be true. .................................................................26
CONCLUSION ....................................................................................................................27

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TABLE OF AUTHORITIES
Page(s)
Cases:
Brady v. Maryland,
373 U.S. 83 (1963) ......................................................................................................passim
Giglio v. United States,
405 U.S. 150 (1972) ..........................................................................................................15
Gritzner v. Michael R.,
2000 WI 68, 235 Wis. 2d 781, 611 N.W.2d 906...........................................................26
Holmes v. South Carolina,
547 U.S. 319 (2006) ............................................................................................................ 7
House v. Bell,
547 U.S. 518 (2006) ..........................................................................................................24
Kyles v. Whitley,
514 U.S. 419 (1995) ................................................................................................... 16, 26
State v. Allen,
2004 WI 106, 274 Wis. 2d 568, 682 N.W.2d 433 ................................................. 25, 26
State v. Balliette,
2011 WI 79, 336 Wis. 2d 358, 805 N.W.2d 334 ...................................................... 8, 27
State v. Denny,
120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984) .................................................passim
State v. Edmunds,
2008 WI App 33, 308 Wis. 2d 374, 746 N.W.2d 590 ............................................passim
State v. Jackson,
2014 WI 4, 352 Wis. 2d 249, 841 N.W.2d 791 .............................................................11
State v. Plude,
2008 WI 58, 310 Wis. 2d 28, 750 N.W.2d 42 ...............................................................15
State v. Ramsey,
2019 WI App 33, 388 Wis. 2d 143, 930 N.W.2d 273 ........................................... 19, 21
State v. Ruffin,
2022 WI 34, 401 Wis. 2d 619, 974 N.W.2d 432 ...........................................................26
State v. Williams,
2009 WI App 95, 320 Wis. 2d 484, 769 N.W.2d 878 ..................................................23

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State v. Wilson,
2022 WI App 55, 404 Wis. 2d 750, 982 N.W.2d 351 ........................................... 15, 19
State ex rel. Koster v. McElwain,
340 S.W.3d 221 (Mo. App. 2011) ............................................................................ 23, 24
U.S. v. Theodore,
354 F.3d 1 (1st Cir. 2003) ............................................................................................26

Statutes:
Wis. Stat. § 805.15 .................................................................................................................18
Wis. Stat. § 809.62(r1)(1)(d) ................................................................................................... 7
Wis. Stat. § 974.02 ................................................................................................................... 8
Wis. Stat. § 974.06 ...........................................................................................................passim
Wis. Stat. § 974.06(3)(d) .......................................................................................................26

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ISSUES PRESENTED

I. WHETHER THE COURT OF APPEALS IMPROPERLY IMPOSED A

BURDEN ON MR. AVERY TO CONCLUSIVELY PROVE THE DENNY
MOTIVE ELEMENT IN ORDER TO SATISFY THE MATERIALITY
PRONGS OF STATE V. EDMUNDS, 2008 WI APP 33, 308 WIS. 2D 374,
746 N.W.2D 590 AND BRADY V. MARYLAND, 373 U.S. 83 (1963)?
The trial court held: No.
The court of appeals held: The trial court correctly determined that newly
discovered evidence would only be material if it was admissible under Denny.

II. WHETHER THE COURT OF APPEALS ERRED WHEN IT DID NOT

CORRECTLY APPLY STATE V. DENNY, 120 WIS. 2D 614, 357 N.W.2D
12 (CT. APP. 1984) TO MR. AVERY’S POTENTIAL THIRD-PARTY
SUSPECT EVIDENCE?
The trial court held: No.
The court of appeals held: The trial court correctly applied Denny to Mr. Avery’s
potential third party suspect evidence.

III. WHETHER THE COURT OF APPEALS IMPROPERLY AFFIRMED

THE TRIAL COURT’S DECISION TO DENY MR. AVERY AN
EVIDENTIARY HEARING?
The trial court held: No.
The court of appeals held: The court of appeals agreed.

CRITERIA FOR GRANTING REVIEW

This case presents “special and important reasons” justifying Supreme Court
review. The Court of Appeals conceded that the Sowinski affidavit establishes “a
possible ‘connection between the third party and the crime.’” (Opinion, page 20). The

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Court reached this conclusion by improperly weighing the evidence and imposing an
improper burden of proof on Mr. Avery to meet the standard for an evidentiary
hearing. This misapplication of the law and misinterpretation of the facts has resulted
in a constitutional violation of Mr. Avery’s due process rights to present a complete
defense at his trial. See Holmes v. South Carolina, 547 U.S. 319 (2006).

I. Issue One - Misapplication of State v. Edmunds and Brady v. Maryland

The first issue concerns whether the Court of Appeals misapplied the standard
for evaluating newly discovered evidence on postconviction, which is governed by State
v. Edmunds, 2008 WI App 33, 308 Wis. 2d 374, 746 N.W.2d 590, by restricting Mr.
Avery’s new evidence to the establishment of potential third party suspect evidence
governed by State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), in order
to satisfy the materiality prongs of Edmunds and Brady, even though Mr. Avery offered
numerous reasons why his newly discovered evidence is independently material
without regard to the Denny third party suspect standard.

II. Issue Two - Misapplication of State v. Denny

The second issue concerns whether the Court of Appeals misapplied the
standard for potential third-party suspect evidence set forth by State v. Denny, 120 Wis.
2d 614, 357 N.W.2d 12 (Ct. App. 1984) by creating impossible standards for satisfying
the motive, opportunity, and direct connection prongs of Denny in a postconviction
pleading, contrary to Wisconsin law.
This Court should grant review because the Court of Appeals’ decision is in
conflict with this Court’s decision in State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12
(Ct. App. 1984) (see Wis. Stat. 809.62(r1)(1)(d)) and Holmes v. South Carolina, 547 U.S.
319, 321 (2006).

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III. Issue Three - Misapplication of State v. Balliette

This issue concerns whether the Court of Appeals misapplied State v. Balliette,
2011 WI 79, 336 Wis. 2d 358, 805 N.W.2d 334 in denying Mr. Avery an evidentiary
hearing and in doing so has deprived Mr. Avery the ability to raise a complete defense,
in violation of his constitutional rights.
This case presents unique constitutional issues based on the Court of Appeals’
misapplication of the law and a misinterpretation of the facts to Mr. Avery’s case and
his newly discovered evidence.

STATEMENT OF THE CASE

On March 18, 2007, Mr. Avery was convicted of first-degree intentional

homicide and felon in possession of a firearm. He was found not guilty of mutilation
of a corpse. He appealed. The Court of Appeals affirmed. In 2009, he filed a § 974.02
motion requesting a new trial. An evidentiary hearing on Mr. Avery’s post-conviction
motion was held. On January 25, 2010, his motion was denied and he appealed. The
Court of Appeals affirmed.
In 2013, Mr. Avery filed a pro se § 974.06 motion requesting a new trial. It was
denied. On June 7, 2017, Mr. Avery filed a second § 974.06 motion. (603:1-222).1 The
petition was dismissed without an evidentiary hearing. (628:1-6). On October 6, 2017,
Mr. Avery filed a § 974.06 motion to vacate, and on October 23, 2017, he filed a motion
for reconsideration. The circuit court denied his motions to vacate and for
reconsideration. (640:1-5).
On October 11, 2019, Mr. Avery filed an appeal. Mr. Avery filed motions to
stay and remand concerning two additional claims. Mr. Avery raised his claims in his
motions to the circuit court as supplemental post-conviction motions. The circuit court
denied his motions to supplement. On April 12, 2021, a new witness revealed

1Citations to the record on appeal appear with the document number before the colon and the page
number after the colon. A citation to “429:16,” for instance, refers this Court to page 16 of document
429.

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exculpatory information impeaching Bobby Dassey by establishing that he put the

victim’s car on Mr. Avery’s property. Mr. Avery filed a motion to the Court of Appeals
to stay his appeal and remand to allow Mr. Avery to add a claim based on the new
witness.
On July 28, 2021, the Court of Appeals issued a per curium opinion, upholding
the circuit court’s summary denial of Mr. Avery’s claims raised in his § 974.06 petition
and two supplemental motions, holding that Mr. Avery’s § 974.06 motions were
insufficient on their face to entitle him to a hearing, but reserving his ability to refile
his Supplemental Motion #6. (1056).
On August 16, 2022, Mr. Avery filed his third motion for post-conviction relief
pursuant to § 974.06. (1065, 1066-75). Mr. Avery filed an amended motion on
December 6, 2022. (1102). Mr. Avery’s § 974.06 motion set forth newly discovered
evidence that a third-party Bobby Dassey (“Bobby”) was seen in possession of the
victim Ms. Halbach’s vehicle after her disappearance. Mr. Thomas Sowinski
(“Sowinski”) contacted the New York Innocence Project about this matter in 2016.
Although Sowinski originally believed it was Mr. Avery’s trial defense attorneys that he
contacted in 2016, after finding an email verification, he realized it was rather the New
York Innocence Project he contacted, and thus, he amended his original affidavit which
was submitted in Mr. Avery’s motion to stay his appeal to the Appellate Court and
Sowinski’s amended affidavit was filed to the circuit court reflecting this mistake.
(1065:76-82). Affidavits from two other new witnesses in Mr. Avery’s case, Mr. Kevin
Rahmlow (“Rahmlow”) and Mr. Thomas Buresh (“Buresh”),2 corroborate Sowinski’s
observations.

2In Rahmlow’s affidavits provided to the circuit court, Rahmlow described observing Ms. Halbach’s
RAV-4 parked at the turnaround at STH 147 and the East Twin River Bridge on November 3 and 4,
2005. Rahmlow stated that he reported his observation to a Manitowoc Sheriff’s deputy he encountered
on November 4, 2005 at the Cenex station on STH 147 in Mishicot. (1075:58-68). In Buresh’s affidavit,
he states that sometime before 2 a.m. on November 5, he was driving a tow truck in the area of
Highway 147 and County Road Q in Manitowoc County and saw RAV-4 driving South on County
Road Q, turning left off of County Road Q as it passed him. He recognized Bobby as the driver. He
did not recognize the passenger in the vehicle, he is 100% sure it was not Mr. Avery (1120:3-5).

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In Mr. Avery’s § 974.06 motion, Mr. Avery also raised Brady claims relating to
the information from the new witnesses. Mr. Avery attached affidavits and documents
showing that after Sowinski contacted Mr. Avery’s current post-conviction counsel and
provided the newly discovered evidence, Mr. Avery’s current post-conviction counsel,
through its investigator, submitted its second Public Records Request pursuant to the
Freedom of Information Act (“FOIA”) to the Manitowoc Sheriff’s Office for audio
recordings of incoming and outgoing phone calls and/or radio dispatches between
November 3, 2005 and November 9, 2005 relating to the case. The FOIA-produced
audio recordings did not contain the Sowinski call, nor did they contain any dates or
times of the calls produced. (1068:1-5). In May of 2022, Mr. Avery’s current
postconviction counsel received the previously suppressed Sowinski call to the
Manitowoc Sheriff’s Office which contained a partial recording of the Sowinski
suppressed call to the Manitowoc Sheriff’s Office on November 6. For the first time,
current postconviction counsel received the exact dates and times of the Manitowoc
County Sheriff’s Office incoming calls. (1069:1-2). As part of its investigation, Mr.
Avery’s investigator then interviewed Sowinski’s ex-girlfriend, whom he was dating at
the time of the November 5, 2005 incident. Sowinski’s ex-girlfriend, Devon Novak,
corroborated Sowinski’s account of what he had witnessed and what he had relayed to
law enforcement. Further, Ms. Novak recognized and identified Sowinski’s voice on
the recording, played to her by the investigator, of a phone call made to the Manitowoc
Sheriff’s Office on November 6, 2005 at 10:28 p.m. (1070:1-5). Mr. Avery’s investigator
interviewed Sowinski again and played the same audio recording of the phone call that
was made to the Manitowoc Sheriff’s Office on November 6, 2005 at 10:28 p.m.
Sowinski identified his voice in the audio recording of the phone call from November
6, 2005. (1071:1-12). The recording of Sowinski’s call was never disclosed by the State
to Mr. Avery’s trial defense counsel prior to or during the trial. Pre-trial, trial defense
counsel made two specific requests for all exculpatory evidence and/or information
within the possession, knowledge, or control of the State which would tend to negate
the guilt of the defendant, or which would tend to affect the weight or credibility of

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the evidence used against the defendant, including any inconsistent statements.
(1072:1-14). The failure to disclose the audio call to trial defense counsel was a clearcut
Brady violation. An additional Brady claim stems from the evidence from Rahmlow.
Rahmlow described, in his affidavit, that he reported his observation of the RAV-4
parked away from the Avery property to a Manitowoc Sheriff’s deputy he encountered
on November 4, 2005 at the Cenex station on STH 147 in Mishicot. (1075:59, ¶6). No
law enforcement report was ever generated by this Manitowoc Sheriff’s deputy
memorializing the conversation between Rahmlow and this deputy about Rahmlow’s
observation of Ms. Halbach’s vehicle.
The circuit court denied Mr. Avery’s motion for post-conviction relief on
August 22, 2023. (1132). Mr. Avery filed a timely notice of appeal on August 24, 2023.
(1137). On January 15, 2025, the Court of Appeals issued a per curium decision,
affirming the circuit courts’ denial of Mr. Avery’s claims.
Mr. Avery will accept the facts as stated in the Court of Appeals’ Opinion on
pages 2-8.

ARGUMENT

I. WHETHER THE APPELLATE COURT IMPROPERLY IMPOSED

A BURDEN ON MR. AVERY TO CONCLUSIVELY PROVE THE
DENNY MOTIVE ELEMENT IN ORDER TO SATISFY THE
MATERIALITY PRONGS OF STATE V. EDMUNDS, 2008 WI APP 33,
308 WIS. 2D 374, 746 N.W.2D 590 AND BRADY V. MARYLAND, 373
U.S. 83 (1963)?

Standard of Review

The state’s highest court will not disturb a circuit court’s decision to admit or
exclude evidence unless the circuit court erroneously exercised its discretion. A circuit
court erroneously exercises its discretion if it applies an improper legal standard or
makes a decision not reasonably supported by the facts of record. State v. Jackson, 2014
WI 4, ¶1, 352 Wis. 2d 249, 255, 841 N.W.2d 791.

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Imposing Improper Standard on Newly Discovered Evidence

Both the circuit court and Court of Appeals imposed an improper standard in
evaluating Mr. Avery’s newly discovered evidence. The Court of Appeals found, “The
circuit court properly recognized Avery’s newly discovered evidence was not
independent from Avery’s attempt to meet Denny and addressed whether the evidence
was material within the confines of his third-party perpetrator argument.” (Opinion,
pg. 11, ¶23). Both lower courts improperly merged two standards into one in order to
deny Mr. Avery’s newly discovered evidence. The merging of the two different
standards – that in Edmunds and that in Denny – allowed the lower courts to base the
materiality of Mr. Avery’s evidence on proving that Bobby had a sexual motive to kill
Ms. Halbach and also prove beyond a reasonable doubt that he alone made every single
pornographic search on the Dassey computer. The lower courts’ analysis completely
ignores that the Sowinski evidence is independently material for numerous other
reasons besides proving that there is a third party suspect for the murder of Ms.
Halbach.
In Mr. Avery’s third motion for post-conviction relief, Mr. Avery explained how
his new evidence was independently material from demonstrating a Denny third party
suspect. Specifically, he argued,
The Sowinski evidence is material to several issues in Mr. Avery’s case . . . it is material
for establishing Mr. Avery’s defense, that is, that a third party committed the crime
against Ms. Halbach . . . . Additionally, the Sowinski evidence is material to the
evidence in the RAV-4 being planted by Bobby, including Mr. Avery’s blood and
DNA. The RAV-4 also contained the Halbach vehicle key and Ms. Halbach’s
electronic devices which were discovered in Mr. Avery’s bedroom and burn barrel,
respectively. Further, the Sowinski evidence is material to impeach Bobby’s trial
testimony that Ms. Halbach never left the Avery property, and that she was last seen
walking towards Mr. Avery’s trailer.

(1065:16, ¶24). The Court of Appeals avoided addressing this independently material
evidence by inaccurately claiming “Avery only analyzed the Sowinski evidence within
the context of a third-party perpetrator defense.” (Opinion, page 10).
The Court of Appeals pointed out in Paragraph 4 of its Opinion from July 28,
2021:

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The State’s theory was that Avery shot Halbach in the head, in his garage, and threw
her in the cargo area of the RAV 4. He then burned the electronics and camera,
cremated Halbach in a burn pit, transferred the remains to a burn barrel, and hid the
RAV 4 until he could crush it in the Avery car crusher. (1056:3).

Mr. Avery argued that Sowinski’s new evidence is material because it shows that
the RAV-4 did leave the Avery property and was in possession of a third party, not Mr.
Avery, thereby debunking the State’s theory that Mr. Avery had exclusive possession of the
vehicle and the forensic evidence contained therein and that he kept the RAV-4 on the
Avery property by the crusher so he could crush it immediately. (See 1102:38, 49). The
prosecutor in his closing argument told the jury that “only one person” was responsible
for the crime and that was Mr. Avery (610:130).
As Mr. Avery argued, the evidence of a third party’s possession of Ms. Halbach’s
vehicle is additionally material because it shows that someone other than Mr. Avery
had possession of the forensic evidence used to convict Mr. Avery. The vehicle, by
virtue of having all of the relevant forensic evidence in it, including Ms. Halbach’s
blood, was the most important piece of evidence in the case. In his closing the
prosecutor stated, “Because the discovery of that RAV-4, the discovery of Teresa
Halbach’s vehicle changed the course of not only this case, but the clues and secrets
found in that vehicle changed the lives of everybody in this room.” (610:036). The
prosecutor emphasized to the jury that “nobody had access to the car” and “no one
was going to tamper with the SUV after it was located.”(610:041-42). However, the
Sowinski evidence establishes that Bobby, the State’s primary eyewitness, had access to
and the ability to tamper with the vehicle before it was located. Mr. Avery was entitled
to have presented this critical fact to a jury and not being allowed to do so deprived
him of his constitutional right to present a complete defense.
Despite police searches preceding the discovery of Ms. Halbach’s vehicle, Ms.
Halbach’s electronic devices and key were not found until after Ms. Halbach’s vehicle
was found. The only reasonable inference is that all the items remained in Ms.
Halbach’s vehicle and were then moved by the third party who had possession of her
vehicle and planted in and around Mr. Avery’s residence.

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If a third party had possession of Ms. Halbach’s vehicle, numerous areas of

reasonable doubt arise, such as that the forensic evidence in the vehicle was tampered
with by the third party having control of it before it was discovered by law enforcement
on the Avery property. This would have created reasonable doubt in the jurors’ minds,
particularly since the State’s primary eyewitness witness was the one in possession of
the vehicle. Thus, Mr. Avery’s new evidence also presents an alternative theory for the
source of the forensic evidence used against Mr. Avery. See Edmunds, ¶15, 386.
Importantly, Mr. Avery also argued that the Sowinski evidence impeaches the
credibility of Bobby’s trial testimony where he established an alibi for himself while
implicating Mr. Avery in the murder. (1102:38). In fact, Mr. Avery spent numerous
pages on his third § 974.06 motion explaining the impeachment value of Mr. Avery’s
new evidence. (1102: 11, 38-41).
Bobby testified that he left the property while Ms. Halbach and her vehicle
remained on the property with Mr. Avery. This crucial testimony allowed the State to
claim it was Mr. Avery, not Bobby, who murdered Ms. Halbach and concealed her
vehicle on the property. (610:91). During its closing argument, the State emphasized
the importance of Bobby’s testimony, vouching for his credibility; “Again, an
eyewitness without any bias. It is a [sic] individual that deserves to be given a lot of
credit.” (610:91).
With the new Sowinski evidence, the State could not possibly have presented
an unimpeached Bobby to establish Ms. Halbach never left the property in her vehicle
and that she was last seen walking towards Mr. Avery’s trailer – its critical eyewitness
link to obtaining Mr. Avery’s conviction. Bobby was the only witness whose testimony
the jury requested to “read or hear a transcript of” (1104:47). Clearly, by Bobby
possessing the vehicle, there is a reasonable likelihood it would have affected the
judgment of the jury in that Bobby would have emerged as a much more likely suspect
in Ms. Halbach’s murder than his recently released, wrongfully convicted uncle.
Contrary to the State’s representations to the jury, Bobby was biased and deserved no
credit for his fabricated testimony.

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In regard to a motion for a new trial, a reasonable doubt as to a defendant’s

guilt has been found to exist when the credibility of a witness critical to the State’s case
is completely called into question by newly discovered evidence. State v. Wilson, 2022
WI App 55, 404 Wis. 2d 750, 982 N.W.2d 351. “A new trial is required if the false
testimony could . . . in any reasonable likelihood, have affected the judgment of the
jury.” Giglio v. United States, 405 U.S. 150, 154 (1972) (citations omitted); see also State
v. Plude, 2008 WI 58, ¶47, 310 Wis. 2d 28, 55, 750 N.W.2d 42, 56 (“Wisconsin law has
long held that impeaching evidence may be enough to warrant a new trial.”).
In State v. Plude, the defendant presented newly discovered evidence that an
expert witness lied about his credentials. Id., ¶49, 56. The Supreme Court of Wisconsin
found that because “[the expert witness’s] testimony was a critical link in the State’s
case” (Id. ¶46, 55), “[his] quasi-medical expert testimony creates a reasonable
probability that the jury hearing of [his] false testimony about his credentials would
have had a reasonable doubt as to Plude’s guilt.” Id. ¶49, 56. Notably, in Justice Annette
Ziegler’s concurrence, she found the “new allegations” that the expert witness
misrepresented his credentials created “a serious question” “as to whether the interests
of justice were served.” Id. ¶¶52-53, 57-58.
Mr. Avery presents a stronger case about the materiality of his newly discovered
evidence because his evidence shows that Bobby committed perjury in his trial
testimony, and it taints all of the forensic evidence used against Mr. Avery which
resulted in his conviction.
Prior to the Sowinski evidence coming to light, the Court of Appeals assessed
Bobby’s testimony as follows:
Certainly, this testimony bolstered the State’s theory that Halbach visited Avery on
that day and did not leave the Avery property thereafter, but absent this testimony the
State still possessed significant forensic (and other) evidence implicating Avery in a
crime committed on his property.

(1056:42, ¶68). However, in Mr. Avery’s third § 974.06 motion, he brought forth
newly discovered evidence that does both – it completely impeaches Bobby’s testimony
while casting doubt on all the forensic evidence used against Mr. Avery. Thus, Mr.

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Avery has shown how his evidence is highly material independent of establishing
Bobby as a third party suspect.
Besides requiring Edmunds materiality to be solely based on being able to meet
the Denny requirements, the Court of Appeals erroneously found, “Avery did not offer
any analysis that explained why his newly-discovered evidence was not cumulative
outside of his third-party perpetrator defense.” (Opinion, pg. 10). However, even if
there were multiple examples of Bobby’s impeachment for purposes of a Brady claim,
the court is not to view each piece of suppressed evidence in isolation, Instead, the
court is required to assess the cumulative impact of all the suppressed evidence to
determine its materiality. Kyles v. Whitley, 514 U.S. 419, 434 (1995).
The continual effort to move the goal post to thwart Mr. Avery's post
conviction efforts by employing the use of per curiam opinions, which blatantly violate
his constitutional right to present a complete defense, cannot and should not be
condoned.
Further, contrary to the Court of Appeals’ assertion that “Avery did not offer
any analysis that explained why his newly-discovered evidence created a reasonable
probability of a different outcome on retrial that was independent from Avery’s
attempt to meet Denny and addressed whether the evidence was material within the
confines of his third-party perpetrator argument” (Opinion, pg. 11, ¶23), Mr. Avery’s
third § 974.06 motion and briefs on appeal thoroughly analyze why the Sowinski
evidence is independently material and would have created a probability of a different
outcome on retrial. (1102:30-31; Appellant’s Brief, pgs. 17-18; Reply Brief, pgs. 14-15).

Mr. Avery has not waived his Brady and Interest of Justice claims set forth in
his petition.

In Mr. Avery’s third § 974.06 motion, Mr. Avery raised Brady claims relating to
the information from the new witnesses and also raised an Interest of Justice argument.
As for his first Brady claim concerning the suppression of the Sowinski evidence,
Mr. Avery attached affidavits and documents showing that after Sowinski contacted
Mr. Avery’s current postconviction counsel initially obtained FOIA-produced audio

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recordings which did not contain the Sowinski call, nor did they contain any dates or
times of the calls produced. (1068:1-5). Then, in May of 2022, Mr. Avery’s current
postconviction counsel received a partial recording of the suppressed Sowinski call to
the Manitowoc Sheriff’s Office on November 6. (1069:1-2). Sowinski’s ex-girlfriend,
Devon Novak, recognized and identified Sowinski’s voice on the recording of
Sowinski’s phone call made to the Manitowoc Sheriff’s Office on November 6, 2005
at 10:28 p.m. (1070:1-5). Mr. Avery’s investigator interviewed Sowinski again and
played the same audio recording of the phone call, and Sowinski identified his voice in
the audio recording of the phone call. (1071:1-12). The recording of Sowinski’s call was
never disclosed by the State to Mr. Avery’s trial defense counsel prior to or during the
trial. If the call had been disclosed, Mr. Avery’s trial defense counsel could have traced
the call to Sowinski by subpoenaing the phone numbers.
Mr. Avery sufficiently pled his Brady claim concerning the Sowinski evidence in
his motion for postconviction relief (1102:31-44), and this was not the issue disputed
by the circuit court in denying his claim. The circuit court did not make any finding
that Mr. Avery did not sufficiently plead his Brady claim; rather, it disputed Mr. Avery’s
argument regarding the materiality of the evidence. (1132:27-30).
In regard to the Brady claim stemming from the evidence provided by Rahmlow,
he described, in his affidavit, that he reported his observation of seeing the RAV-4 to
a Manitowoc Sheriff’s deputy he encountered on November 4, 2005 at the Cenex
station on STH 147 in Mishicot. (1075:59, ¶6). No law enforcement report was ever
generated by this Manitowoc Sheriff’s deputy memorializing the conversation between
Rahmlow and this deputy about Rahmlow’s observation of Ms. Halbach’s vehicle.
Again, Mr. Avery sufficiently pled his argument in his motion for postconviction relief.
(1102:44-47). The circuit court did not find otherwise, but rather, it disputed the
materiality of this evidence. The Appellate Court completely overlooked the Rahmlow
evidence.
Mr. Avery properly pled his Interest of Justice claim in his motion (1102:47-48).
However, applying the same rationale for denying his Brady claims, the circuit court

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found that, “[t]he defendant asked that the court grant him a new trial in the interests
of justice pursuant to Wis. Stats. §805.15. Given the above conclusions reached with
respect to the evidence offered by the defendant, there are no legal grounds to grant
such a request.” (1132:31).
The Court of Appeals ignored Mr. Avery’s actual pleading and circuit court’s
rationale for denying Mr. Avery an evidentiary hearing and improperly found that Mr.
Avery’s Brady and Interest of Justice claims were waived on appeal because it claimed
that Mr. Avery did not argue that the Brady and Interest of Justice claims were
sufficiently pled. (Opinion, pg. 8). However, this ignores the fact that the circuit court
never found that Mr. Avery’s claims were insufficiently pled; rather, the circuit court
accepted that they were properly pled but concluded that Mr. Avery’s evidence that
was suppressed was not material and for the same reason denied his Interest of Justice
claim. Following the circuit court’s rationale for denying his claims, Mr. Avery properly
raised the issue as to the circuit court’s misapplication of Brady to his newly discovered
evidence on appeal.
Mr. Avery argued on appeal that the circuit court misapplied the law and
required Mr. Avery to also prove Denny in order to satisfy the materiality prong for
satisfying Brady.
In Mr. Avery’s brief, Mr. Avery pointed out that in evaluating Mr. Avery’s Brady
claim, the circuit court did not dispute that the prosecution had suppressed the audio
recording of Mr. Sowinski’s call, but that rather, it disputed the materiality and
favorability of the evidence. (Brief of Appellant, pg. 17). Mr. Avery argued that the
circuit court’s manner in determining Mr. Avery’s evidence was not material was
improper, because as argued multiple times, the evidence is material for reasons outside
of Denny, including for its impeachment value.
Mr. Avery could not have waived his Brady claims because they are within his
argument that the circuit court improperly imposed a burden for him to also satisfy the
Denny requirements in order to show that his evidence is material for bringing his
constitutional claims, which obviously encompasses his multiple Brady violation claims.

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Because Mr. Avery has not waived his Brady claims and argued on appeal that
the circuit court improperly held him to an improper standard for evaluating
materiality, and the Court of Appeals improperly dismissed his claims as being waived,
this Court’s review is required to adequately resolve the issue. Additionally, because the
Court of Appeals affirmed the circuit court’s misapplication of the law in evaluating
Mr. Avery’s newly discovered evidence and Brady claims, this Court’s review is required.
II. WHETHER THE COURT OF APPEALS ERRED WHEN IT DID
NOT CORRECTLY APPLY STATE V. DENNY, 120 WIS. 2D 614, 357
N.W.2D 12 (CT. APP. 1984) TO MR. AVERY’S POTENTIAL THIRD-
PARTY SUSPECT EVIDENCE?

Standard of Review
The Appellate Court generally reviews a trial court’s decision to admit or
exclude evidence under an erroneous exercise of discretion standard. State v. Wilson,
2015 WI 48, ¶47, 362 Wis. 2d 193, 864 N.W.2d 52. However, when a defendant’s
constitutional right to present a defense is implicated by the exclusion of evidence, the
decision not to admit the evidence presents a question of constitutional fact that the
Appellate Court reviews de novo. State v. Ramsey, 2019 WI App 33, 388 Wis. 2d 143, 930
N.W.2d 273.

Mr. Avery provided sufficient facts to meet the Denny requirements in his third
§ 974.06 motion.
In Wisconsin, Denny governs the admissibility of potential third-party
perpetrator evidence. Denny requires a showing that “there must be a ‘legitimate
tendency’ that the third person could have committed the crime.” State v. Denny, 120
Wis. 2d 614, 623, 357 N.W.2d 12, 17 (Ct. App. 1984). A ‘legitimate tendency’ is
demonstrated where the defendant can establish (1) motive, (2) opportunity to commit
the charged crime, and (3) provide “some evidence to directly connect a third person
to the crime charged which is not remote in time, place or circumstances.” Id. at 624.
In deciding Mr. Avery’s previous appeal of his second motion for
postconviction relief, the Court of Appeals specifically instructed Mr. Avery about the
following:

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As discussed below, we are not addressing Avery’s most recent filing to this court (see
our discussion of Motion #6), which seeks to directly connect Dassey to Halbach’s
murder. If Avery wishes to raise that claim, he will need to bring a new WIS. STAT.
§ 974.06 motion. That motion would need to survive both Escalona-Naranjo scrutiny
and be found to have merit—in which case, the evidence presented might supply the
missing “direct connection.” In that event, the Velie CD evidence might become
relevant to showing Dassey’s motive, and might bear on whether Dassey is, or should
have been, a viable Denny suspect. We express no opinion on the merit of any such
§ 974.06 motion, as all such issues would be for the circuit court to decide in the first
instance.

(1056:41, emphasis added). Seemingly having forgotten that it previously found that
“the Velie CD evidence might become relevant to showing Dassey’s motive” if Mr.
Avery’s third § 974.06 motion showed “the missing direct connection,” the Court of
Appeals decided to adopt the circuit court’s convoluted and faulty analysis of what is
required to satisfy the Denny tests. Both lower courts improperly elevated the motive
prong to the most important of the three prongs and imposed an impossible burden
to meet in requiring each element – motive, opportunity, and direct connection – to be
conclusively satisfied.

Mr. Avery pled sufficient facts to establish that Bobby had a motive for the
murder.
In Mr. Avery’s third § 974.06 motion, he alleged that the motive attributed to
Bobby for Ms. Halbach’s murder could have been sexual and provided evidence
supporting this, namely the suppressed evidence from a computer that was in Bobby’s
bedroom. Further, Mr. Avery supplied evidence showing that Bobby was the primary
user of this computer, according to his brother Blaine, whose affidavit Mr. Avery
attached. (965:164-67, 1104:115-16). Mr. Avery also showed that Bobby lied to police
about the location of the computer claiming it was in the living room, but crime scene
footage showed it was in his bedroom. (1104:112). Mr. Avery supplied this additional
evidence to the circuit court in his third § 974.06 motion even after the Court of
Appeals had previously acknowledged the potential materiality of the Velie CD in
proving a third party suspect.
The circuit court’s finding and the Court of Appeals’ affirmation (contrary to
its prior finding that the Velie CD could serve to show Bobby’s motive if Mr. Avery

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supplied “direct connection” evidence) that Mr. Avery has not established the “motive”
element of Denny is contrary to Wisconsin law.
Wisconsin cases that discuss the motive element of a Denny analysis show that
the standard for fulfilling the motive element of Denny is not overly burdensome,
especially when there is strong evidence of a third party perpetrator’s direct connection
to the crime.
For example, State v. Ramsey, 2019 WI App 33, 388 Wis. 2d 143, 930 N.W.2d
273 is a case in which very weak evidence of motive against a third party was presented
by the defendant, however, the appellate court found there was strong evidence of a
direct connection and thus, it found “plausible reasons” for the third party to commit
the crime. Id. ¶ 28.
In Ramsey, the victim was found stabbed at a home. The 911 caller told police
that the victim had been staying at her sister’s home to hide from the defendant. The
defendant had been in a relationship with the victim for over 11 years and they had
two children together. They had a history of domestic violence. Officers found the
defendant, and the defendant admitted stabbing the victim twice. Id. ¶ 6. The victim’s
best friend told police that the day before the stabbing, the victim told the defendant
that she was going to leave him. Id. ¶7. After fingernail clippings from the victim
revealed another man’s DNA, the defendant brought forth a Denny motion, arguing
that a potential third party perpetrator: (1) was a convicted criminal; (2) lived near the
crime scene; and (3) his DNA was present at the scene and is unexplained. The
defendant alleged two “possible” motives for the third-party perpetrator: irrational rage
and antisocial behavior and/or sexual gratification. Id. ¶ 25. The defendant argued that
it was possible that the third party had no rational motive. Id. Thus, the defendant
presented evidence of a general motive which was not directed at the particular victim.
In Ramsey, the circuit court found that the defendant had failed to establish the
third party’s “motive” and denied the motion. However, the appellate court reversed
the circuit court’s ruling, stating: “We conclude that when considered under the
applicable law regarding motive, and with the opportunity evidence and the strong

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direct connection evidence, Ramsey has presented plausible reasons for [the third
party] to commit the crime.” Id., ¶¶57, 64. The appellate court found that “under the
totality of the circumstances, the evidence suggests a third-party perpetrator actually
committed the crime” emphasizing that ‘Suggests’ is a rather broad term.” Id. ¶34.
Mr. Avery, in his § 974.06 motion, presented far more evidence than is even
required to suggest that a third-party actually committed the crime. The lower courts’
failure to consider the Denny prongs in the aggregate and their erroneous imposition of
a burden of substantial certainty on Mr. Avery’s motive evidence to prove beyond a
reasonable doubt that Bobby conducted each search is reversible error. Bobby is the
only person who has been identified as having taken unlawful possession (theft) of the
victim’s vehicle and had an abundance of violent porn of young women on the
computer in his room for which he has been described as the “primary user.”
Combined with these damning facts is his role as the primary eyewitness against Mr.
Avery at his trial.

Mr. Avery has offered even further evidence of “motive” with the Sowinski
evidence because it shows that Bobby had possession of Ms. Halbach’s vehicle.

If not sexual, Mr. Avery even offered another potential motive for Bobby. After
obtaining the Sowinski evidence that Bobby was in possession of Ms. Halbach’s vehicle
– a vehicle that he unlawfully obtained – it is only logical to conclude that Bobby’s
motive could have been theft. The Court of Appeal contended that the theft motive
was not properly pled in Mr. Avery’s motion, but it was by the submission of an
eyewitness account by Sowinski that he saw Bobby in possession of Ms. Halbach’s
vehicle after her disappearance. Sowinski supplied sufficient detail that this was a theft.

Mr. Avery’s evidence satisfies the direct-connection element.

The Court of Appeals in an argument that strains credulity claimed the RAV-4
that Sowinski witnessed was not necessarily Ms. Halbach’s vehicle, in order to dismiss
Mr. Avery’s “direct connection” evidence. Specifically, the Court of Appeals disputed
that the RAV-4 belongs to Ms. Halbach, finding “The Sowinski affidavit, however,

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only stated that Sowinski saw Bobby and another individual pushing a blue-colored
RAV4 on November 5, 2005.” (Opinion, pg. 17, ¶37.). Apparently, the Appellate Court
believes that Sowinski was required to obtain the VIN number of the RAV-4 that he
observed to rule out the completely improbable scenario of Bobby pushing another
blue-colored RAV-4 onto the Avery property on November 5, 2005 in the early
morning hours.
Unlike the Court of Appeals, the circuit court correctly acknowledged, “The
Sowinski affidavit, taken as true for the purpose of this motion, directly links Bobby to
possession of the victim’s vehicle.” (1132:26). The Court of Appeals’ rationale is
incorrect as it did not take Mr. Avery’s pleadings to be true. In State v. Williams, 2009
WI App 95, 320 Wis. 2d 484, 769 N.W.2d 878, 3 the appellate court found a direct
connection between an individual and the murder because he had possession of the
victim’s vehicle several days after her murder, specifically, the court explained:
We agree with the State that: [f]rom all of these circumstances, under a common
sense, non-technical approach, a reasonable police officer would draw the
reasonable inference that both Williams and [Armstead] had been in possession of
Brown’s stolen car. There was probable cause to believe that both Williams and
[Armstead] probably had committed a crime involving the murder victim’s stolen car.

id. (emphasis added). Applying this common-sense approach here, the Sowinski
evidence provides the direct connection (that is, Bobby being witnessed in possession
of Ms. Halbach’s vehicle) to Bobby having committed the murder of Ms. Halbach and
planting the evidence to frame Mr. Avery.
The RAV-4 is a material piece of evidence in the crime. See, e.g., State ex rel. Koster
v. McElwain, 340 S.W. 3d 221, 249 (Mo. App. 2011). Since the only similar Wisconsin
case on this point is State v. Williams, this Court can look to the Missouri case for
guidance. There, the State presented other explanations for the discovery of material
evidence. The Court rejected that approach stating:
The State argues that Ted Helmig’s initial possession of some of the canceled checks
and their later discovery with the purse only shows an attempt to cover up Dale
Helmig’s crime. That may be true. However, the fact that there may be other
explanations for the discovery of the canceled checks with the purse besides an

3Mr. Avery realizes that this case existed two months before it would have had precedential value. The
court’s common-sense approach is instructive.

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inference that Ted Helmig threw the purse and the canceled checks in the river
sometime following his murder of Norma Helmig does not relieve us of the obligation
to acknowledge that Ted Helmig has now been connected to the purse—material
evidence in Norma Helmig’s murder case.

McElwain, at 250-51. The Missouri court found that Ted Helmig’s mere possession of
the canceled checks was sufficient to connect him to “a key piece of evidence in the
crime--the purse where the cancelled checks were found.” Id. at 249. Here, the
circuit court admitted that Mr. Avery established Bobby’s possession of the RAV-4,
but it created other explanations other than acknowledging that Bobby had possession
of the RAV-4 sometime following his murder of Ms. Halbach (1132:25). Bobby is now
connected to material evidence in the Teresa Halbach murder case.
The Denny test only requires an inference that Bobby is directly connected to
the murder of Ms. Halbach, nothing more. By having possession of Ms. Halbach’s
vehicle after her disappearance, the inference can certainly be made. The Sowinski
evidence is being offered as evidence of the “missing” piece, the direct connection
between Bobby and Ms. Halbach’s murder. (1056:41). Contrary to the lower courts’
positions, Mr. Avery does not need to prove Bobby’s guilt of the murder beyond a
reasonable doubt. See House v. Bell, 547 U.S. 518 (2006).

Mr. Avery showed that there is a reasonable probability that presenting Mr.
Avery’s newly discovered evidence undermines confidence in the outcome of
Mr. Avery’s trial.

Mr. Avery has adequately shown how his newly discovered evidence would have
changed the outcome of his trial.
The new evidence would have allowed the defense to impeach Bobby’s trial
testimony. During his closing argument, Prosecutor Kratz emphasized the importance
of Bobby’s testimony and vouched for his credibility:
We talked more about the timeline and we heard from Bobby Dassey, again, in the
same kind of a position to be his credibility to be weighed by you, but is an eyewitness.
Again, an eyewitness without any bias. It is a (sic} individual that deserves to be
given a lot of credit. Because sometime between 2:30 and 2:45 he sees Teresa Halbach.
He sees her taking photographs. He sees her finishing the photo shoot. And he sees
her walking up towards Uncle Steve's trailer.

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(715:91, emphasis added). Bobby would no longer be the “unbiased witness” described
by Prosecutor Kratz. Further, the forensic evidence would have been viewed as planted
or at the very least tainted by being in the hands of a third party. With the new evidence,
the defense could have argued Mr. Avery returned to his trailer; Ms. Halbach left the
property in her vehicle and Bobby followed her, got her to pull over, and assaulted and
murdered her at some point. He planted the RAV-4 on the Avery property and
proceeded to remove and plant the electronic devices, the key, the bones, her clothing,
her DNA on the bullet and Avery’s blood.
The Sowinski evidence when viewed in the aggregate including all the false
statements made by Bobby to law enforcement and at trial would have provided a
reasonable probability of a different outcome at trial.

III. WHETHER THE COURT OF APPEALS IMPROPERLY

AFFIRMED THE CIRCUIT COURT’S DECISION TO DENY MR.
AVERY AN EVIDENTIARY HEARING?

Standard of Review

Whether a defendant’s postconviction motion alleges sufficient facts to entitle

the defendant to a hearing for the relief requested is a mixed standard of review. First,
the reviewing court determines whether the motion on its face alleges sufficient
material facts that, if true, would entitle the defendant to relief. This is a question of
law that is reviewed de novo. If the motion raises such facts, the circuit court must hold
an evidentiary hearing. However, if the motion does not raise facts sufficient to entitle
the movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit court
has the discretion to grant or deny a hearing. The reviewing court reviews a circuit
court's discretionary decisions under the deferential erroneous exercise of discretion
standard. State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 576-77, 682 N.W.2d 433.

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Mr. Avery alleged sufficient facts in his third § 974.06 motion, entitling him to a
hearing; however, the lower courts disputed those facts instead of taking them
to be true.

The circuit court “must determine first whether the motion on its face alleges
sufficient material facts that, if true, would entitle the defendant to relief.” State v. Ruffin,
2022 WI 34, ¶35, 401 Wis. 2d 619, 635, 974 N.W.2d 432, 439, citing State v. Allen, 2004
WI 106, ¶9, 274 Wis. 2d 568, 576, 682 N.W.2d 433, 437. As with any other civil
pleading, in assessing the legal sufficiency of the motion, the court must assume the
facts alleged therein to be true. Gritzner v. Michael R., 2000 WI 68, ¶ 17, 235 Wis.2d 781,
611 N.W.2d 906. Only after an evidentiary hearing is the court charged with
determining the issues and making findings of fact and conclusions of law. Wis. Stat.
§ 974.06(3)(d).
Both the circuit court and Court of Appeals improperly attempted to weigh Mr.
Avery’s facts with speculative theories unsupported by the record rather than accepting
his facts as true and determining whether they were sufficiently pled to warrant an
evidentiary hearing. The Court of Appeals offered the theory that Sowinski saw a
different RAV-4 and not Ms. Halbach’s RAV-4, as he claimed. (Opinion, pg. 17, ¶37).
Both courts failed to conduct any analysis of whether Mr. Avery pled sufficient facts
to warrant an evidentiary hearing on his newly discovered evidence. Instead, the lower
courts weighed Mr. Avery’s evidence as if it had already been presented during an
evidentiary hearing.
When the lower courts’ analysis begins to weigh the evidence (it inevitably
misstates) and the uncontradicted facts a petitioner asserts are not taken as true, the
need for an evidentiary hearing becomes apparent. See U.S. v. Theodore, 354 F.3d 1, 7
(1st Cir. 2003). In Mr. Avery’s case, each court has assumed as true a different theory
or a different part of the theory than the other; no court has looked at all of the evidence
cumulatively to determine the likely impact on the defense, on the prosecution’s case,
or on the jury’s verdict. See Kyles v. Whitley, 514 U.S. 419 (1995).
An evidentiary hearing is nothing more than an intermediate step toward the
objective of being granted a new trial. It is not an end in itself. The evidentiary hearing

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is a forum to prove allegations in a motion for post-conviction relief. See State v. Balliette,
2011 WI 79, ¶69, 336 Wis. 2d 358, 386, 805 N.W.2d 334. Mr. Avery’s motion for post-
conviction relief states what he is set to prove if he were granted an evidentiary hearing.
An evidentiary hearing would provide Mr. Avery with the opportunity to prove his
pleaded claims that he is entitled to a new trial. Balliette, ¶61, 383. If Mr. Avery’s motion
contained all the proof necessary to show that he was entitled to a new trial, he would
not need an evidentiary hearing. Id.
Because Mr. Avery has alleged sufficient facts in his motion that, if true, would
entitle him to relief, yet the lower courts keep denying him the opportunity for an
evidentiary hearing, Mr. Avery asks this Court to revisit what is required for an
evidentiary hearing.
CONCLUSION
Petitioner Steven Avery’s case raises three critical issues on which this Court’s
guidance is needed.
First, Mr. Avery presents this Court with an opportunity to correct the lower
courts’ misinterpretations of law in what is required to bring forth newly discovered
evidence.
Second, Mr. Avery presents this Court with an opportunity to return to the issue
of the extent of motive, opportunity, and direct connection that is necessary to satisfy
the Denny third party suspect test for admissibility.
Third, Mr. Avery presents this Court with an opportunity to correct the lower
courts’ misinterpretations of the pleading standard to obtain an evidentiary hearing on
Mr. Avery’s claims.
Fourth, Mr. Avery presents this Court with an opportunity to grant him a new
trial in the interest of justice.
Petitioner Steven Avery respectfully asks this Court to grant him leave to appeal
the issues raised herein.

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Respectfully submitted,

/s/Electronically signed by Kathleen T. Zellner /s/Electronically signed by Steven G. Richards

KATHLEEN T. ZELLNER STEVEN G. RICHARDS
(IL Bar # 6184574) (WI Bar # 1037545)
Admitted pro hac vice Everson & Richards, LLP
Kathleen T. Zellner & Associates, P.C. 127 Main Street
2001 Butterfield Road, Suite 1025 Casco, Wisconsin 54205
Downers Grove, Illinois 60515 Telephone: (920) 837-2653
Telephone: (630) 955-1212 [email protected]
Facsimile: (630) 955-1111
[email protected]
[email protected]

Attorneys for Defendant-Appellant-Petitioner

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Case 2023AP001556 Petition for Review Filed 02-07-2025 Page 29 of 31

CERTIFICATION AS TO FORM / LENGTH

I hereby certify that this petition confirms to the rules contained in Rules
80919(8)(b) and 809.62(4) for a petition for review produced with a professional serif
font. The length of the petition is 7,750 words.
Dated this 7th day of February, 2025

/s/Electronically signed by Kathleen T. Zellner /s/Electronically signed by Steven G. Richards

KATHLEEN T. ZELLNER STEVEN G. RICHARDS
(IL Bar # 6184574) (WI Bar # 1037545)
Admitted pro hac vice Everson & Richards, LLP
Kathleen T. Zellner & Associates, P.C. 127 Main Street
2001 Butterfield Road, Suite 1025 Casco, Wisconsin 54205
Downers Grove, Illinois 60515 Telephone: (920) 837-2653
Telephone: (630) 955-1212 [email protected]
Facsimile: (630) 955-1111
[email protected]
[email protected]

Attorneys for Defendant-Appellant-Petitioner

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Case 2023AP001556 Petition for Review Filed 02-07-2025 Page 30 of 31

CERTIFICATE OF COMPLIANCE WITH RULE 809.19(12)

I hereby certify that the text of the electronic copy of this petition is identical

to the text of the paper copy of the petition.

Dated this 7th day of February, 2025

/s/Electronically signed by Kathleen T. Zellner /s/Electronically signed by Steven G. Richards

KATHLEEN T. ZELLNER STEVEN G. RICHARDS
(IL Bar # 6184574) (WI Bar # 1037545)
Admitted pro hac vice Everson & Richards, LLP
Kathleen T. Zellner & Associates, P.C. 127 Main Street
2001 Butterfield Road, Suite 1025 Casco, Wisconsin 54205
Downers Grove, Illinois 60515 Telephone: (920) 837-2653
Telephone: (630) 955-1212 [email protected]
Facsimile: (630) 955-1111
[email protected]
[email protected]

Attorneys for Defendant-Appellant-Petitioner

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Case 2023AP001556 Petition for Review Filed 02-07-2025 Page 31 of 31

CERTIFICATE OF COMPLIANCE WITH RULE 809.19(2)(b)

I hereby certify that filed with this Petition, either as a separate document or as
a part of this brief, a separate appendix that complies with s. 809.19(2)(a) and that
contains, at a minimum: (1) a table of contents; and (2) the findings or opinion of the
circuit court; (3) a copy of any unpublished opinion cited under s. 809.23(3)(a) or (b);
and (4) portions of the record essential to an understanding of the issues raised,
including oral or written rulings or decisions, showing the circuit court’s reasoning
regarding those issues.
I further certify that if this appeal is taken from a circuit court order or judgment
entered in a judicial review of an administrative decision, the appendix contains the
findings of fact and conclusions of law, if any, and final decision of the administrative
agency.
I further certify that if the record is required by law to be confidential, the
portions of the record included in the appendix are reproduced using first names and
last initials instead of full names of persons, specifically including juveniles and parents
of juveniles, with a notation that the portions of the record have been so reproduced
to preserve confidentiality and with appropriate references to the record.
Dated this 7th day of February, 2025

/s/Electronically signed by Kathleen T. Zellner /s/Electronically signed by Steven G. Richards

KATHLEEN T. ZELLNER STEVEN G. RICHARDS
(IL Bar # 6184574) (WI Bar # 1037545)
Admitted pro hac vice Everson & Richards, LLP
Kathleen T. Zellner & Associates, P.C. 127 Main Street
2001 Butterfield Road, Suite 1025 Casco, Wisconsin 54205
Downers Grove, Illinois 60515 Telephone: (920) 837-2653
Telephone: (630) 955-1212 [email protected]
Facsimile: (630) 955-1111
[email protected]
[email protected]

Attorneys for Defendant-Appellant-Petitioner

31