MADISON, Wis. (WBAY) - The attorney for Steven Avery has filed a motion to dismiss her client's case before the Wisconsin Court of Appeals.
Kathleen Zellner says the move opens up the circuit court to hear all claims made within her 204-page argument that Avery was framed for the 2005 murder of Teresa Halbach in Manitowoc County.
"We have filed this motion so that this Court will have jurisdiction on all claims raised in the latest postconviction motion of Mr. Avery," reads Zellner's letter to Judge Angela Sutkiewicz. The Sheboygan County judge is the official overseeing the case while it is in circuit court.
Zellner's motion states "Plaintiff, Steven Avery, respectfully requests this Court grant the instant motion to dismiss this appeal in its entirety." In her letter to the judge, Zellner tells Action 2 News that their motion to dismiss was filed prior to a letter sent to the judge by special prosecutor, Thomas Fallon, arguing the court "lacks jurisdiction" to act on most of the claims made in Avery's motion to secure a new trial.
Zellner said the motion was on the docket of the Wisconsin Appeals court Thursday morning.
Avery and his nephew Brendan Dassey are serving life sentences for the Halloween 2005 murder Halbach, a freelance photographer who was to photograph a vehicle at the Avery Salvage Yard. The case gained international attention from the Netflix docu-series "Making A Murderer."
Avery is appealing his conviction, claiming that investigators framed him for Halbach's murder and planted evidence to convict him. Attorney Kathleen Zellner filed a document laying out an argument that multiple factors show Avery did not commit the murder.
Special Prosecutor Fallon argued that Avery's initial motion said new scientific testing would prove Avery's innocence, but the 204-page document filed by Zellner goes beyond the scientific, making multiple claims of ineffective council, Brady violations, and ethical violations.
The letter states that the court can only act on three claims related to scientific testing: a microscopic examination of the hood latch on Halbach's RAV 4 showing Avery's DNA did not get there by touching; Avery's DNA found on Halbach's car key included too many cells to be transferred by simply holding the key, and could have been planted using something like Avery's toothbrush; and evidence to show a bullet fragment found in Avery's garage was not shot through Halbach's head.
"Under the court of appeals' order, the only motion for postconviction relief that this Court has the authority to entertain is a 'motion based on the results of further testing, if any, authorized by the circuit court,'" reads Fallon's letter.
"As discussed above, only three of the many claims raised in Mr. Avery's latest postconviction motion are based on the results of that testing. The Court lacks jurisdiction to act on any of the other claims in the latest postconviction motion."
On July 14, Zellner filed another letter with the judge with the intent to "clarify certain issues" about the status of the case.
Zellner says results of the examination of a bullet fragment showing it did not have embedded bone fragments "undermines the State's theory that Ms. Halbach was killed by two gunshot to the head."
Zellner says Avery's motion for postconviction relief relies on the new evidence, as well as the claims of Brady violations and ethical violations.
In her letter, Zellner writes she spoke with Fallon on July 12, informing him that she was going to file a motion to dismiss the appeal in the appeals court. Zeller's letter states that she sent the motion to the appeals court on the same day as her conversation with Fallon.
"All parties and this court were given notice that this motion had been filed," Zellner writes.
Zellner says she received Fallon's letter claiming lack of jurisdiction, detailed above, the next day.
"Apparently, Mr. Fallon had not yet received the notice of filing for Mr. Avery's motion to dismiss his pro se appeal when he sent this letter to the court," reads Zellner's letter.
There has been no word yet if the appeals court has made a decision on the motion to dismiss.
A federal judge has overturned the 1st Degree Intentional Homicide conviction for Avery's nephew, a decision backed up by a three-judge panel in a federal appeals court.
However, Brendan Dassey remains in prison as the State of Wisconsin asks the full 7th Circuit Court of Appeals to hear the case.