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COURT OF APPEALS
NOTICE
DECISION
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.
October 7, 1999
                                                                                                                                                       A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                       petition  to  review  an  adverse  decision  by  the
                                                                                    Marilyn L. Graves
                                                                                                                                                       Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                                    Clerk, Court of Appeals
                                                                                                                                                       STATS.
                                                                                    of Wisconsin
No.                                                                                 99-0177
                                                                                    STATE OF WISCONSIN
                                                                                                                                                       IN COURT OF APPEALS
                                                                                                                                                       DISTRICT IV
EUGENE F. OLSEN,
PETITIONER-APPELLANT,
V.
DANIEL R. BERTRAND, WARDEN,
RESPONDENT-RESPONDENT.
APPEAL from an order of the circuit court for Crawford County:
MICHAEL KIRCHMAN, Judge.  Affirmed.
Before Vergeront, Roggensack and Deininger, JJ.
¶1                                                                                  PER CURIAM.      Eugene F. Olsen appeals from an order summarily
denying his petition for a writ of habeas corpus.   He asks that we remand the
petition for an evidentiary hearing.    However, because the trial court properly




No(s). 99-0177
determined that the claim raised in the petition was procedurally barred by prior
proceedings, we affirm.
¶2                                                                                                   Olsen was convicted in 1988 of armed burglary, first-degree sexual
assault, endangering safety regardless of life, and being a felon in possession of a
firearm, after he broke into a woman’s home at night and raped her at gunpoint.
He was sentenced as a repeat offender to consecutive prison terms totaling fifty-
five years.   He has since unsuccessfully sought relief from his convictions by a
postconviction motion brought under RULE 809.30(2), STATS.; a direct appeal to
this court; a postconviction motion brought under  § 974.06, STATS.; a habeas
corpus petition brought before this court under State v. Knight, 168 Wis.2d 509,
520,  484 N.W.2d 540,  544  (1992); and two successive habeas corpus petitions
filed in the trial court.
¶3                                                                                                   Olsen’s most recent habeas corpus petition, which is the subject of
this appeal, alleged that his statement and evidentiary items seized by the police
should have been suppressed because the record did not establish the police had
permission to enter the residence outside of which Olsen was apprehended.   His
prior habeas corpus petition, which was not appealed, alleged, among other things,
that consent to search the residence was unlawfully obtained or tainted by a prior
illegal entry.1
¶4                                                                                                   Courts generally do not entertain successive petitions for writs of
habeas corpus which are based upon the same grounds or facts, or upon other
1    Although the record from the prior habeas corpus action was not forwarded to this
court on appeal, Olsen has included the relevant documents in an appendix, and the State urges us
to rely upon them.   Because there is no factual dispute between the parties about the validity of
the documents supplied by Olsen, we will accept them for the purpose of this appeal.
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No(s). 99-0177
grounds or facts which existed at the time of a prior habeas petition.   See Smith v.
State, 63 Wis.2d 496, 499 and 499 n.7, 217 N.W.2d 257, 258 and 258 n.7 (1974).
Olsen argues that he is nonetheless entitled to be heard on his second petition for
habeas corpus because the representation afforded to him for the first habeas
corpus proceeding was ineffective.
¶5                                                                                      We note, however, there is no constitutional or statutory right to
counsel in a collateral habeas corpus proceeding.   See State ex rel. Payton v. Kolb,
135 Wis.2d 202, 206-07, 400 N.W.2d 285, 286-87 (Ct. App. 1986).   There cannot
be a claim for ineffective assistance of counsel without an underlying right to
counsel.   See A.S. v. State, 168 Wis.2d 995, 1004-05, 485 N.W.2d 52, 55 (1992).
The adequacy of counsel’s representation in the prior habeas proceeding therefore
has no bearing on our analysis of whether Olsen has forfeited any claims which
should have been raised there.
¶6                                                                                      Olsen  has  presented  nothing  which  would  indicate  the  facts
supporting his current suppression claim were not known to him when he filed his
previous habeas petition.   Indeed, the facts should have been known to him before
trial and each of his successive attempts at postconviction relief.   We therefore
conclude the trial court properly refused to consider the merits of the claim raised
in the current petition.
By the Court.—Order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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