State Ex Rel. Griffin v. Smith ( 2004 )

DIANE S. SYKES, J.

¶ 64. (concurring). I agree with the majority's analysis of the right to counsel in this context, and also with its formulation of an equitable tolling remedy in the circumstances of the cases before the court. On the issue of retroactivity, I agree with the majority's result but disagree with its analysis. Retroactivity in the context of a collateral attack by habeas petition of a judgment already final is governed by Teague v. Lane, 489 U.S. 288, 310 (1989), and State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 258-59, 548 N.W.2d 45 (1996). See State ex rel. Brown v. Bradley, 2003 WI 14, ¶¶ 38-52, 259 Wis. 2d 630, 658 N.W.2d 427 (Sykes, J., dissenting). The majority applies the retro-activity analysis of Chevron Oil Co. v. Huson, 404 U.S. 97,106 (1971), which the United States Supreme Court abandoned in Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 90 (1993), and which, in any event, does not govern collateral attack retroactivity analysis.

¶ 65. Here, as in Brown, the parties did not brief the issue of Wisconsin's continued reliance on Chevron Oil in light of Harper. For that reason, and because the precise retroactivity question in this case (retroactivity in the context of habeas collateral attack) is governed by Teague/Schmelzer, we need not address here whether to conform our law to Harper. It is also true that the parties did not brief Teague/Schmelzer retro-activity analysis. In any event, because the majority has reached the same result that a Teague/Schmelzer analysis would yield, I respectfully concur.

¶ 66. I am authorized to state that Justices JON E WILCOX, and N. PATRICK CROOKS join this concurrence.