Ezequiel Lopez-Quintero v. Michael A. Dittmann

2019 WI 58
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP203-W
COMPLETE TITLE: State of Wisconsin ex rel. Ezequiel Lopez
Quintero,
Petitioner,
v.
Michael A. Dittmann,
Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: May 29, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: David P. Wilk
JUSTICES:
CONCURRED: KELLY, J. concurs (opinion filed).
DISSENTED: ROGGENSACK, C.J. dissents, joined by ZIEGLER, J.
(opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner, there were briefs filed by Gregory W.
Wiercioch, Victor Pelaez, student practitioner, and Frank J.
Remington Center, Madison. There was an oral argument by
Gregory W. Wiercioch.
For the respondent, there was a brief filed by Kara L.
Mele, assistant attorney general, with whom on the brief was
Brad D. Schimel, attorney general. There was an oral argument by
Kara L. Mele.
An amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Robert R. Henak and
Henak Law Office, S.C., Milwaukee.
2019 WI 58
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP203-W
(L.C. No. 2007CF535)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Ezequiel Lopez-
Quintero,
FILED
Petitioner,
MAY 29, 2019
v.
Sheila T. Reiff
Michael A. Dittmann, Clerk of Supreme Court
Respondent.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 REBECCA GRASSL BRADLEY, J. We review the court of
appeals' decision to summarily deny as untimely Ezequiel Lopez-
Quintero's petition for habeas corpus seeking reinstatement of
his right to file a direct appeal. Lopez-Quintero contends his
petition satisfied all of the requirements under Wis. Stat.
§ (Rule) 809.51 (2015-16),1 and the court of appeals erred when
it presumed, without ordering a response from the State, that
1All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
No. 2018AP203-W
his nine-year delay in filing his petition caused prejudice. We
hold that neither the language of Rule 809.51 nor principles of
equity require a habeas petitioner to allege timeliness in the
petition. We overrule State ex rel. Smalley v. Morgan, 211
Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997) (per curiam)
abrogated in part by State ex rel. Coleman v. McCaughtry, 2006
WI 49, 290 Wis. 2d 352, 714 N.W.2d 900, which imposed a "prompt
and speedy" pleading requirement on habeas petitioners.2 We
reverse the decision of the court of appeals and remand for
further proceedings.
I. BACKGROUND
¶2 Christopher B. Cohen, an Illinois attorney who was
also a member of the Wisconsin bar, and Frederick F. Cohn, an
Illinois attorney who appeared pro hac vice, represented Lopez-
Quintero. On March 7, 2008, a jury found Lopez-Quintero guilty
2The dissent contends that Coleman did not abrogate
Smalley, but Coleman in fact did abrogate Smalley's erroneous
enunciation of the laches test. Coleman explained: "[b]ecause
it may be difficult to quantify 'actual prejudice,' we conclude
that the three-element analysis of Sawyer and Prihoda provides
the better analytic framework for assessing a laches defense
than does the two-element analysis set out in McMillian, Smalley
and Evans." State ex rel. Coleman v. McCaughtry, 2006 WI 49,
¶29, 290 Wis. 2d 352, 714 N.W.2d 900 (referencing Sawyer v.
Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999); State v.
Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857; State ex
rel. McMillian v. Dickey, 132 Wis. 2d 266, 392 N.W.2d 453 (Ct.
App. 1986); State ex rel. Smalley v. Morgan, 211 Wis. 2d 795,
565 N.W.2d 805 (Ct. App. 1997) (per curiam); and State v. Evans,
2004 WI 84, 273 Wis. 2d 192, 682 N.W.2d 784).
2
No. 2018AP203-W
of first-degree intentional homicide and carrying a concealed
weapon.
¶3 On April 7, 2008, his attorneys filed a motion for a
new trial. Two days later, the circuit court sentenced Lopez-
Quintero to life in prison plus five years, without any
possibility of extended supervision. During the sentencing
hearing, one of Lopez-Quintero's attorneys discussed a possible
appeal with the circuit court.
[DEFENSE COUNSEL]: Number one, we have filed a
motion for a new trial already.
THE COURT: Yes, sir.
[DEFENSE COUNSEL]: Would that relieve us of
filing the notice of intent to proceed to appeal?
THE COURT: No. I still think you have to file
that.
[DEFENSE COUNSEL]: Within 20 days?
THE COURT: Right.
¶4 The circuit court gave Lopez-Quintero's attorneys the
"Notice of Right to Seek Postconviction Relief" form, which the
attorneys reviewed with Lopez-Quintero, who checked the box
indicating "I plan to seek postconviction relief." One of
Lopez-Quintero's attorneys also signed the form and certified as
follows:
I have counseled the defendant about the decision to
seek postconviction relief. I have informed the
defendant that this decision must be made and
communicated to me within 20 days of sentencing. I
believe the defendant understands the right to
postconviction relief and the 20 day time limit. I
understand that it is my duty to file the Notice of
3
No. 2018AP203-W
Intent to Pursue Postconviction Relief on behalf of
the defendant if that intent is timely communicated to
me.
(Emphasis added.) At the conclusion of the sentencing hearing,
one of Lopez-Quintero's attorneys advised he would "get that
other document filed within 20 days."
¶5 During the June 10, 2008 hearing on Lopez-Quintero's
motion for a new trial, his attorneys discussed Lopez-Quintero's
indigence and the possibility of the circuit court appointing
them as appellate counsel. The circuit court responded it would
"endorse [the] appointment" but expressed it did not "have the
ability to appoint you for the appeal." Despite the expiration
of the 20-day deadline to file the notice of intent, Lopez-
Quintero's attorneys did not request an extension to file one.
On the same day, the circuit court granted Lopez-Quintero's
"Petition for Waiver of Filing and Service Fees——Affidavit of
Indigency and Order" and allowed Lopez-Quintero to "get
transcript of trial without payment."
¶6 Lopez-Quintero's actions manifested his intent to
pursue postconviction relief. However, no notice of intent was
ever filed, and neither of Lopez-Quintero's attorneys requested
an extension of time to file the notice of intent.
Consequently, an appeal never occurred.
¶7 On February 1, 2018——nearly ten years after his
conviction——Lopez-Quintero petitioned the court of appeals for a
writ of habeas corpus under Wis. Stat. § (Rule) 809.51; see also
4
No. 2018AP203-W
State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).3 Lopez-
Quintero, now represented by the Frank J. Remington Center at
the University of Wisconsin Law School, alleged that his trial
attorneys rendered ineffective assistance by failing to file a
notice of intent within the 20-day deadline, and this deficiency
caused his direct appeal rights to expire. Lopez-Quintero asked
the court of appeals to "reinstate his appellate deadlines, so
that he may pursue a direct appeal of his conviction and
sentence." The petition alleged that Lopez-Quintero relied on
his attorneys to pursue the appeal after he unequivocally
indicated his intent to pursue postconviction relief by signing
the Notice of Right to Seek Postconviction Relief form and
checking the box indicating he intended to seek postconviction
relief, but the petition omitted any reason for Lopez-Quintero's
failure to file his claim for habeas relief until almost a
decade after his appeal rights lapsed.
¶8 The court of appeals denied Lopez-Quintero's petition
ex parte under Wis. Stat. § (Rule) 809.51(2). State ex rel.
Lopez-Quintero v. Dittmann, No. 2018AP203-W, unpublished order
at 1 (Wis. Ct. App. Feb. 12, 2018). It opined that "[t]he
3
"Because the circuit court is unable to provide a remedy
for the failure to file a notice of intent to seek
postconviction relief . . . the court of appeals is the proper
forum for claims of ineffectiveness premised on counsel's
failure to file a notice of intent." State ex rel. Kyles v.
Pollard, 2014 WI 38, ¶38, 354 Wis. 2d 626, 847 N.W.2d 805.
Accordingly, Lopez-Quintero properly filed his habeas petition,
alleging ineffective assistance of counsel based on failure to
file a notice of intent, in the court of appeals.
5
No. 2018AP203-W
problem with Lopez-Quintero's petition is that it comes too
late." Id. at 2. Citing Smalley, the court of appeals
concluded that "[a]lthough Lopez-Quintero's stated limitations[4]
can account for some delay in this case, it [sic] cannot account
for over nine years of delay. Accordingly, we are not persuaded
that he sought habeas relief in a timely fashion and will deny
the petition for that reason." Lopez-Quintero, No. 2018AP203-W,
unpublished order at 2-3.
¶9 Lopez-Quintero filed a motion for reconsideration,
asking the court of appeals "to reconsider its decision and
refrain from denying Mr. Lopez-Quintero's legally-sufficient
petition ex parte" or "[a]t the very least . . . order the State
to respond, and apply Coleman if the State raises the
affirmative defense of laches." Under Coleman, "[t]he State has
the burden of proof in regard to all the elements of its laches
defense" therefore "the court of appeals erred when it assumed
the State was prejudiced by Coleman's unreasonable delay."
Coleman, 290 Wis. 2d 352, ¶¶2, 37. The court of appeals denied
the motion, and Lopez-Quintero petitioned this court for review,
which we granted.
4In his petition to the court of appeals for a writ of
habeas corpus, Lopez-Quintero asserted he did not speak English
and was unfamiliar with the American criminal justice system,
which we presume to be the "stated limitations" the court of
appeals referenced in its ex parte denial of the petition.
6
No. 2018AP203-W
II. ANALYSIS
¶10 While habeas relief may be denied under the well-
established doctrine of laches if a petitioner unreasonably
delays the filing of his petition, this case resolves whether
the court of appeals may deny an otherwise sufficiently pled
habeas petition ex parte, without a hearing or a response from
the State, solely because the court of appeals deems it to be
untimely. We hold that the court of appeals may not deny a
habeas petition ex parte on the ground the petitioner failed to
demonstrate he sought relief in a prompt and speedy manner. We
overrule Smalley. Any equitable concerns regarding substantial
delays, such as the near ten-year delay in the current case, are
properly raised not sua sponte by the court of appeals but
instead by the State asserting the defense of laches and
establishing prejudice resulting from the delay.5
A. Standard of Review
¶11 We review the legal issues arising out of a habeas
petition independently. Coleman, 290 Wis. 2d 352, ¶17. This
case requires us to interpret Wis. Stat. § (Rule) 809.51, which
5 The dissent misapprehends this court's rather limited
holding, which simply requires the State to respond to the
petition, after which the court of appeals will decide whether
to grant it or not, considering any equitable defenses the State
may assert. Contrary to the dissent's characterization of this
opinion, we do not engage in any factfinding and the petitioner
retains the burden of proving the allegations in his petition.
The court of appeals denied him the opportunity to do so based
on Smalley's misstatement of applicable law.
7
No. 2018AP203-W
presents a question of law. See State v. Ziegler, 2012 WI 73,
¶37, 342 Wis. 2d 256, 816 N.W.2d 238.
B. General Legal Principles
¶12 "A petition for writ of habeas corpus commences a
civil proceeding wherein the petitioner claims an illegal denial
of his or her liberty." Coleman, 290 Wis. 2d 352, ¶18. Often
referred to as the "Great Writ," habeas corpus "indisputably
holds an honored position in our jurisprudence." Engle v.
Isaac, 456 U.S. 107, 126 (1982). Its roots spring from English
common law, and "its availability is guaranteed by the U.S.
Constitution, the Wisconsin Constitution, and by state and
federal statute." State ex rel. Marberry v. Macht, 2003 WI 79,
¶22, 262 Wis. 2d 720, 665 N.W.2d 155 (quoting State ex rel. Haas
v. McReynolds, 2002 WI 43, ¶11, 252 Wis. 2d 133, 643
N.W.2d 771); see also State ex rel. L'Minggio v. Gamble, 2003 WI
82, ¶17, 263 Wis. 2d 55, 667 N.W.2d 1; Wis. Stat. § 782.01(1)
("Every person restrained of personal liberty may prosecute a
writ of habeas corpus to obtain relief from such restraint
subject to [Wis. Stat. §§] 782.02 and 974.06.").
¶13 The Great Writ constitutes "a bulwark against
convictions that violate 'fundamental fairness.'" Engle, 456
U.S. at 126 (quoted source omitted). Founded on principles of
equity, habeas corpus "test[s] the right of a person to his
personal liberty." Marberry, 262 Wis. 2d 720, ¶22 (quoted
source omitted; alteration in original). "The purpose of the
writ is to protect and vindicate the petitioner's right to be
free from illegal restraint." Id.; see also State ex rel.
8
No. 2018AP203-W
Zdanczewicz v. Snyder, 131 Wis. 2d 147, 151, 388 N.W.2d 612
(1986). "Its function is to provide a prompt and effective
judicial remedy to those who are illegally restrained of their
personal liberty." State ex rel. Wohlfahrt v. Bodette, 95
Wis. 2d 130, 133, 289 N.W.2d 366 (Ct. App. 1980).
¶14 However, "[t]he extraordinary relief provided by the
writ of habeas corpus is available only in limited
circumstances," and the writ "does not issue as a right."
Marberry, 262 Wis. 2d 720, ¶¶23, 25 (quoted source omitted). A
party seeking habeas relief must be restrained of his liberty
and "show that the restraint was imposed by a body without
jurisdiction or that the restraint was imposed contrary to
constitutional protections." Haas, 252 Wis. 2d 133, ¶12.
Additionally, the party "must show that there was no other
adequate remedy available in the law." Id.; see also Waley v.
Johnston, 316 U.S. 101, 105 (1942) (extending the use of the
writ "to those exceptional cases where the conviction has been
in disregard of the constitutional rights of the accused, and
where the writ is the only effective means of preserving his
rights.").
We have long and consistently held that the
extraordinary writ of habeas corpus is not available
to a petitioner when the petitioner has other adequate
remedies available. For instance, habeas corpus is
not available to challenge a bindover decision by a
court commissioner because the decision is
challengeable on a statutory motion to dismiss.
Similarly, the writ is not available to challenge the
sufficiency of probable cause to issue a criminal
complaint, even when the challenge is brought between
arrest and the preliminary hearing, because the
9
No. 2018AP203-W
challenge can be made using other remedies at trial.
Habeas corpus proceedings are likewise not available
to challenge an administrative order revoking
probation, since a writ of certiorari is available,
and is the proper remedy under such circumstances. In
short, if the petitioner has an otherwise adequate
remedy that he or she may exercise to obtain the same
relief, the writ will not be issued.
Marberry, 262 Wis. 2d 720, ¶25 (quoting Haas, 252 Wis. 2d 133,
¶14). Ultimately, "the burden is on the petitioner . . . to
demonstrate by a preponderance of the evidence that his
detention is illegal." State ex rel. Hager v. Marten, 226
Wis. 2d 687, 694, 594 N.W.2d 791 (1999).
¶15 A habeas petition filed in the court of appeals under
Wis. Stat. § (Rule) 809.51(1) "must contain a statement of the
legal issues and a sufficient statement of facts that bear on
those legal issues, which if found to be true, would entitle the
petitioner to relief." Coleman, 290 Wis. 2d 352, ¶18. The
statute provides:
(1) A person may request the court to exercise
its supervisory jurisdiction or its original
jurisdiction to issue a prerogative writ over a court
and the presiding judge, or other person or body, by
filing a petition and supporting memorandum. . . . The
petition shall contain:
(a) A statement of the issues presented by the
controversy;
(b) A statement of the facts necessary to an
understanding of the issues;
(c) The relief sought; and
(d) The reasons why the court should take
jurisdiction.
10
No. 2018AP203-W
Rule 809.51(1).6 Subsection (2) provides the "court may deny the
petition ex parte or may order the respondents to file a
response with a supporting memorandum, if any, and may order
oral argument on the merits of the petition." Rule 809.51(2).
¶16 As the respondent, the State may assert equitable
defenses such as laches in opposing a habeas petition.7 "Laches
is an equitable defense to an action based on the plaintiff's
unreasonable delay in bringing suit under circumstances in which
such delay is prejudicial to the defendant." Sawyer v.
Midelfort, 227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999). The
application of laches to bar habeas petitions is well-
established. See Coleman, 290 Wis. 2d 352, ¶¶2, 19-25.
Although our courts have described the elements of laches in
various ways, we concluded in Coleman that the three-element
test described in some of our cases "provides the better
analytic framework for assessing a laches defense." Id., ¶29.
6
The dissent would rewrite the statute to additionally
require a habeas petitioner who claims his appeal rights were
denied to allege "when, where or how [he] specifically directed
his trial counsel to appeal." Dissent, ¶58. This heightened
"when, where or how" pleading requirement does not appear in the
text of the statutes or in any Wisconsin cases.
7
Although Michael A. Dittmann, the warden of the
correctional facility where Lopez-Quintero is confined, is the
respondent in this case, see Wis. Stat. § 782.01 ("'respondent'
means the person on whom the writ is to be served"), the
Wisconsin Department of Justice represents Dittmann and responds
to the petition; therefore, we reference the respondent as the
"State." See e.g., Coleman, 290 Wis. 2d 352, ¶¶13-15, 31-37
(generally referring to the respondent as the State).
11
No. 2018AP203-W
Under Coleman, the elements of the defense of laches are: (1)
unreasonable delay in filing the habeas petition, (2) lack of
knowledge on the part of the State that the petitioner would be
asserting the habeas claim, and (3) prejudice to the State.
Id., ¶¶28-29. As the party asserting the defense, the State
bears the burden to raise and prove all elements of the defense.
Id., ¶2.
C. Application
¶17 The sole issue presented is whether the court of
appeals may deny a habeas petition ex parte for the petitioner's
failure to plead that his claim was brought in a timely manner.
We conclude it may not. Lopez-Quintero's habeas petition was
sufficiently pled in accordance with the statutory
prescriptions. The petition contained a "statement of the legal
issues and a sufficient statement of facts [bearing] on those
legal issues, which if found to be true, would entitle [Lopez-
Quintero] to relief." See Coleman, 290 Wis. 2d 352, ¶18.
Lopez-Quintero's petition alleges that he communicated his
desire to seek postconviction relief by indicating his intent
"to seek postconviction relief" on the Notice of Right to Seek
Postconviction Relief form, which his attorney also signed,
explicitly acknowledging the attorney's "duty to file the Notice
12
No. 2018AP203-W
of Intent to Pursue Postconviction Relief."8 See Wis. Stat.
§ 973.18(5) (explaining that "[i]f the defendant desires to
8 The dissent misjudges Lopez-Quintero's habeas petition as
insufficient because he did not allege making "a specific
request of counsel to appeal" and accuses the court of "adding
facts to the petition" to cure the petition's purported
deficiency. Dissent, ¶¶50-51. The dissent is wrong on both
counts. Lopez-Quintero checked the box on the Notice of Right
to Seek Postconviction Relief form indicating "I plan to seek
postconviction relief." He did not check either of the two
other options on the form: "I do not plan to seek
postconviction relief" or "I am undecided about seeking
postconviction relief and I know I need to decide and tell my
lawyer within 20 days." One of Lopez-Quintero's attorneys
signed this form and acknowledged his responsibility to file a
notice of intent to pursue postconviction relief in accordance
with Lopez-Quintero's unequivocal wishes. Because Lopez-
Quintero explicitly indicated his intent to pursue
postconviction relief, his attorneys were obligated to file a
notice of intent to pursue postconviction relief under Wis.
Stat. § (Rule) 809.30(2)(b). See Wis. Stat. § 973.18(5). This
notice was a prerequisite to any postconviction relief,
including an appeal. Rule 809.30(2)(a)-(b). The attorneys'
inaction in response to Lopez-Quintero's specific instruction to
file the notice of intent under Rule 809.30(2)(b) resulted in
the "complete denial of appeal," and prejudice is therefore
"presumed." See State ex rel. Flores v. State, 183 Wis. 2d 587,
620, 516 N.W.2d 362 (1994). It is this "forfeiture of a
proceeding"——here, an appeal——and the "complete denial of
counsel" that carries the presumption of prejudice. See Roe v.
Flores-Ortega, 528 U.S. 470, 483 (2000). It is immaterial that
Lopez-Quintero indicated his intent to seek "postconviction
relief" rather than specifying he wished to appeal; his
attorneys' inaction resulted in the complete denial of any
postconviction proceedings——including an appeal.
(continued)
13
No. 2018AP203-W
pursue postconviction relief, the defendant's trial counsel
shall file" the notice of intent to pursue postconviction
relief). The petition further alleges that he relied on his
attorneys to file the notice of intent to pursue postconviction
relief, which is a precondition to pursuing an appeal. See Wis.
Stat. § (Rule) 809.30(2)(a)-(b). Lopez-Quintero's attorneys
The dissent also faults Lopez-Quintero for failing to
explain "why an appeal was not pursued" and speculates that
"[p]erhaps after denial of the motion for a new trial, counsel
and Lopez-Quintero decided an appeal would not be worth
pursuing." Dissent, ¶54. The dissent quotes Flores-Ortega, 528
U.S. at 486 for the proposition that "evidence that [a
defendant] sufficiently demonstrated to counsel his interest in
an appeal . . . is insufficient to establish that, had the
defendant received reasonable advice from counsel about the
appeal, he would have instructed his counsel to file an appeal."
Dissent, ¶44. But the quoted language in Flores-Ortega did not
address Lopez-Quintero's situation, in which his attorneys
disregarded his instructions to file a notice of intent to
pursue postconviction relief thereby depriving him of his right
to appeal, which has long been held to constitute ineffective
assistance of counsel. See Flores, 183 Wis. 2d at 620
("[W]henever the ineffective assistance is such as to deprive
one totally of the right to appeal, the prejudice showing is
presumed."); see also Flores-Ortega, 528 U.S. at 483 (explaining
that deficient performance leading to the forfeiture of a
judicial proceeding is presumed to be prejudicial). Instead,
Flores-Ortega considered whether counsel was "deficient for not
filing a notice of appeal when the defendant has not clearly
conveyed his wishes one way or the other." Flores-Ortega, 528
U.S. at 477 (emphasis added). Because Lopez-Quintero's petition
alleged that he clearly communicated his desire to pursue
postconviction relief to his attorneys, the dissent's
speculation about why an appeal was never filed is irrelevant.
Lopez-Quintero's allegations, if proved, would establish
ineffective assistance of counsel. See Flores, 183 Wis. 2d at
620.
14
No. 2018AP203-W
failed to do so, depriving him of any opportunity to appeal.9
Trial counsel's "failure to perfect an appeal when the defendant
has indicated a desire to appeal constitutes ineffective
assistance of counsel." See State ex rel. Flores v. State, 183
Wis. 2d 587, 615, 516 N.W.2d 362 (1994) (quoted source omitted).
Whenever ineffective assistance of counsel results in the
"complete denial of appeal, prejudice is presumed." Id. at 620;
see also Garza v. Idaho, 139 S. Ct. 738, 744 (2019) (explaining
that "prejudice is presumed 'when counsel's constitutionally
deficient performance deprives a defendant of an appeal that he
otherwise would have taken'" (quoting Roe v. Flores-Ortega, 528
U.S. 470, 484 (2000)); Flores-Ortega, 528 U.S. at 477
(explaining that "[w]e have long held that a lawyer who
disregards specific instructions from the defendant to file a
notice of appeal acts in a manner that is professionally
unreasonable," and "'[w]hen counsel fails to file a requested
9
The dissent faults Lopez-Quintero for failing to attach an
"affidavit" or a "transcript from an evidentiary hearing" to
support his claim. Dissent, ¶39. No law supports the
proposition that such evidentiary materials are necessary to
plead a habeas claim. Under the law governing habeas pleading
requirements, the defendant must allege sufficient facts "which
if found to be true, would entitle the petitioner to relief."
See Coleman, 290 Wis. 2d 352, ¶18 (emphasis added). Contrary to
the dissent's view of the case, we are at the pleading stage;
Lopez-Quintero submitted a sworn petition for habeas corpus
attesting that the facts alleged in the petition (including the
attachments) were "true and correct." See Wis. Stat. § 782.04
(a petition for habeas corpus "must be verified"). The
additional evidentiary materials listed by the dissent may, in
some cases, be necessary to prove a habeas claim, but they are
not necessary to plead the claim.
15
No. 2018AP203-W
appeal, a defendant is entitled to [a new] appeal without
showing that his appeal would likely have had merit'" (quoted
source omitted; third alteration in original)); Strickland v.
Washington, 466 U.S. 668, 692 (1984) ("Actual or constructive
denial of the assistance of counsel altogether is legally
presumed to result in prejudice."); Castellanos v. United
States, 26 F.3d 717, 718 (7th Cir. 1994) (explaining that "[i]f
the defendant told his lawyer to appeal, and the lawyer dropped
the ball, then the defendant has been deprived, not of effective
assistance of counsel, but of any assistance of counsel on
appeal," which is a "per se violation of the sixth amendment").
Because a habeas petitioner need not plead that his petition was
filed in a timely manner, we reverse the court of appeals'
decision denying Lopez-Quintero's statutorily-compliant petition
and remand for further proceedings.
¶18 We begin with an analysis of Wis. Stat. § (Rule)
809.51. Subsection (1) describes what the petitioner must
allege in the petition. While the statute requires the
petitioner to provide a statement of the issues, a statement of
facts, the relief sought, and the reasons the court should take
jurisdiction, see Rule 809.51(1)(a)-(d), it does not impose any
time limit on when a petition may be brought. Id. Subsection
(2) describes what the court of appeals may do upon receipt of
the petition. It may deny the petition ex parte or order a
response, and it may order oral argument on the merits. Rule
16
No. 2018AP203-W
809.51(2). Lack of timeliness is not listed as a basis for
denying a petition ex parte.10 The statute does not impose any
deadline within which a petitioner must bring a habeas petition.
In the absence of language imposing a time limit on filing a
petition for the court of appeals to issue a writ of habeas
corpus, we will not read one into the statute.11 Under the
omitted-case canon of statutory interpretation, "[n]othing is to
be added to what the text states or reasonably implies (casus
omissus pro omisso habendus est). That is, a matter not covered
is to be treated as not covered." Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 93
(2012); see also Wisconsin Ass'n of State Prosecutors v. WERC,
2018 WI 17, ¶45, 380 Wis. 2d 1, 907 N.W.2d 425 ("Nothing is to
be added to what the text states or reasonably implies" (quoting
Scalia & Garner, Reading Law at 93)). "One of the maxims of
statutory construction is that courts should not add words to a
statute to give it a certain meaning." Fond Du Lac Cty. v. Town
10 Subsection (3) authorizes the court of appeals to grant
or deny the petition after considering the petition, responses,
supporting memoranda, and argument, and subsection (4) requires
a statement identifying compliance with certain formatting
requirements for the petition. Wis. Stat. § (Rule) 809.51(3),
(4).
11 We already implicitly recognized the absence of a
statutory time limit in Coleman. We explained that, in this
respect, Wisconsin's rules on state habeas claims differ from
the federal rules, which provide that relief "is available to a
state prisoner for only one year after the state conviction
becomes final." See Coleman, 290 Wis. 2d 352, ¶24 n.5.
Wisconsin's rules contain no such limit. Id.
17
No. 2018AP203-W
of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App.
1989). Therefore, if habeas petitioners are subject to any sort
of timeliness requirement, it must derive from a different
source.
¶19 The State maintains that the court of appeals properly
denied Lopez-Quintero's habeas petition ex parte. It appears to
concede that Wis. Stat. § (Rule) 809.51 contains no timeliness
requirement, but it emphasizes that the statute "does not
purport to provide a comprehensive treatment of the issue of
extraordinary writs" and therefore does not foreclose the
imposition of a timeliness requirement as a matter of equity.
The State grounds its argument in Smalley, which denied a habeas
petition ex parte for failing to allege facts demonstrating that
the petitioner sought prompt and speedy relief. Smalley, 211
Wis. 2d at 801-02. The State insists that Lopez-Quintero has
not shown that Smalley is objectively wrong; therefore, the
State argues, we should reject his invitation to overrule it.
We disagree and overrule Smalley.
¶20 In Smalley, the court of appeals denied a habeas
petition ex parte because the petitioner "did not timely file
his petition." Smalley, 211 Wis. 2d at 796. Because "[t]he
purpose of habeas corpus is 'to provide a prompt and effective
judicial remedy to those who are illegally restrained of their
personal liberty,'" the court of appeals held that Wis. Stat.
§ (Rule) 809.51(1) requires a habeas petitioner to "allege facts
[in the petition] demonstrating that he sought prompt and speedy
relief." Smalley, 211 Wis. 2d at 802 (quoting Wohlfahrt, 95
18
No. 2018AP203-W
Wis. 2d at 133). The court of appeals did not attempt to
justify this new pleading requirement under the text of Rule
809.51(1), which contains no such requirement. Instead, the
court of appeals invoked the principles of equitable estoppel
and laches, which it used to read a timeliness requirement into
Rule 809.51(1). Smalley, 211 Wis. 2d at 800. It further
reasoned that "[e]quitable remedies are not available to one
whose own actions or inactions result in the harm." Id. (quoted
source omitted). Without any analysis, but merely highlighting
the length of the delay, the court of appeals concluded the
State was prejudiced by the "untimely habeas petition." Id. at
803. The court of appeals did, however, clarify that "[w]hether
a defendant's claim is made within a reasonable time must be
evaluated on a case-by-case basis." Id. at 802.
¶21 Smalley's imposition of a "prompt and speedy" pleading
requirement for habeas claims is unsupported either by the
statutory text or Wisconsin cases. The equitable cases cited in
Smalley offer no support for its extra-textual conclusion that
Wis. Stat. § (Rule) 809.51(1) imposes a burden on habeas
petitioners to allege that they sought relief in a "prompt and
speedy" manner or risk their petitions being denied ex parte
under Rule 809.51(2). Under the doctrine of laches, it is the
State, not the petitioner, who bears the burden to show laches
should be applied to bar a habeas petition. Indeed, in Coleman
we recognized the weakness of Smalley's reliance on laches to
deny a habeas petition ex parte, thereby relieving the State of
its burden to establish the elements of that affirmative
19
No. 2018AP203-W
defense, when we remarked that Smalley "conflated its analysis
of the habeas petition's timeliness with the unreasonable delay
element of laches." Coleman, 290 Wis. 2d 352, ¶25 (footnote
omitted).12 In a similar vein, equitable estoppel in this
context is a defense to be raised by the State, and "[t]he
burden of proving the elements of equitable estoppel is on the
party asserting it as a defense." See Coconate v. Schwanz, 165
Wis. 2d 226, 231-32, 477 N.W.2d 74 (Ct. App. 1991). Neither
12Certain language in Coleman suggests that the timeliness
of a habeas petition is a factor to be considered "under the
principles that we have set for evaluating habeas petitions."
Coleman, 290 Wis. 2d 352, ¶25 n.6. The court in Coleman
proceeded to explain that "[t]he foundation for the decision in
Smalley becomes readily apparent when the decision places the
burden of proof for timeliness of the petition on Smalley, which
is in accord with reviewing timeliness in regard to a habeas
petition." Coleman, 290 Wis. 2d 352, ¶25. Coleman, however,
never identifies the source for the purported timeliness
requirement. Other than this unsupported language from Coleman,
we discovered no basis in law or equity for the proposition that
a timeliness requirement inheres in habeas petitions and the
State in this case identifies none. Indeed, the State
recognized that only "[s]ince Smalley" has "this
Court . . . acknowledged that a petitioner seeking a writ of
habeas corpus under Wis. Stat. § (Rule) 809.51 has the burden of
proof to show the timeliness of his petition." While timeliness
must be shown by a party seeking a supervisory writ, see State
ex rel. CityDeck Landing LLC v. Circuit Court for Brown Cty.,
2019 WI 15, ¶30, 385 Wis. 2d 516, 922 N.W.2d 832, it never was a
prerequisite for a habeas petition, until Smalley mistakenly
imported the concept into Rule 809.51. Perhaps Coleman's stray
references to "reviewing timeliness in regard to a habeas
petition" derive from the "prompt and speedy" factor that must
be shown by petitioners seeking supervisory writs; the decision
does not say. Regardless, the only source for shifting the
burden of proof to the habeas petitioner to show timeliness is
Smalley, which erroneously conjured this requirement from a
statute that is entirely silent on the subject.
20
No. 2018AP203-W
doctrine provides any foundation for denying a habeas petition
ex parte on the basis that the petitioner failed to allege the
petition was made within a reasonable time. Any equitable
defense to a habeas petition must be raised and proven by the
State, which cannot be done unless the State is required to
respond to the petition.
¶22 Smalley's reliance on the general principle that
"[e]quitable remedies are not available to one whose own actions
or inactions result in the harm" is a similarly unpersuasive
justification for its "prompt and speedy" pleading requirement.
The quoted precept came from Lohr v. Viney, 174 Wis. 2d 468,
477, 497 N.W.2d 730 (Ct. App. 1993), in connection with that
court's application of equitable estoppel. See Smalley, 211
Wis. 2d at 800. Setting aside the unavailability of equitable
estoppel to deny a habeas petition ex parte, Smalley's reliance
on this language begs the question of what "harm" the petitioner
caused. Smalley assumed, with little analysis and no response
by the State, that mere delay (which the court of appeals
unilaterally deemed unreasonable) necessarily harmed, or
prejudiced, the State. Smalley, 211 Wis. 2d at 803. There is
no legal footing for this presumption, which led us to reject a
similar presumption in Coleman. The court of appeals in
Coleman, as in Smalley, put the cart before the horse by
concluding the State was prejudiced by the petitioner's delay in
seeking habeas relief, without requiring the State to first
assert unreasonable delay and then prove it prejudiced the
State. As we observed in Coleman, delay does not automatically
21
No. 2018AP203-W
prejudice the State, which must not only allege prejudice but
then prove a factual basis for it. Coleman, 290 Wis. 2d 352,
¶36.
¶23 Smalley manufactured the requirement that a habeas
petitioner must prove his petition was "prompt and speedy," a
precondition not found in Wis. Stat. § (Rule) 809.51(1) or the
equitable cases the court cited.13 Although Coleman recognized
that Smalley confused laches with pleading requirements, it
overlooked Smalley's mistaken application of Wohlfahrt, which
understood that the "function" of habeas corpus "is to provide a
prompt and effective judicial remedy to those who are illegally
restrained of their personal liberty." Wohlfahrt, 95 Wis. 2d at
133. Smalley turned this purpose for habeas on its head.
Rather than safeguarding the liberty interests of a petitioner
who was illegally restrained, Smalley misused this language to
13
The dissent cites State ex rel. Kalal v. Circuit Court
for Dane Cty., 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110
for the proposition that a habeas petitioner "must show that
'the request for relief [was] made promptly and speedily."
Dissent, ¶45. Kalal's application of the longstanding "prompt
and speedy" requirement applies to supervisory writs, not writs
of habeas corpus. See Kalal, 271 Wis. 2d 633, ¶17. The dissent
confuses the two. Compare id. (supervisory writ will not be
granted unless "(1) an appeal is an inadequate remedy; (2) grave
hardship or irreparable harm will result; (3) the duty of the
trial court is plain and it must have acted or intends to act in
violation of that duty; and (4) the request for relief is made
promptly and speedily") with State ex rel. Haas v. McReynolds,
2002 WI 43, ¶12, 252 Wis. 2d 133, 643 N.W.2d 771 (habeas corpus
is available where a party is restrained of his liberty, the
restraint was imposed by a body without jurisdiction or contrary
to constitutional protections, and there is no other adequate
remedy at law).
22
No. 2018AP203-W
instead protect the State by imposing a requirement on the
petitioner to plead that he sought relief in a prompt and speedy
manner.14 Nothing in the language lifted from Wohlfahrt supports
this application.
¶24 With no statutory or common law basis for Smalley's
"prompt and speedy" pleading requirement, we decline to impose
one. Equity cannot be advanced by denying a statutorily-
compliant habeas petition solely because an appellate court
deems it to be filed too late, absent the State showing that the
delay prejudiced it. As implicitly reflected in the elements of
the test for laches, numerous factors may influence the
determination of whether it is equitable to bypass the merits of
a claim on the basis of unreasonable delay. See e.g., Coleman,
290 Wis. 2d 352, ¶29 (explaining that "assessing whether a party
raising laches did not have knowledge that the claim would be
brought will permit the circuit court to more fully" evaluate
"the effect of a claim that has been unreasonably delayed."
(emphasis added)). Such considerations cannot be fully vetted
by an ex parte review of the petition.
14
Smalley quoted Wohlfahrt for the proposition that "[t]he
purpose of habeas corpus 'is to provide a prompt and effective
judicial remedy to those who are illegally restrained of their
personal liberty,'" and concluded in the next two sentences that
"Smalley's petition does not allege facts demonstrating that he
sought prompt and speedy relief" and "[s]uch a showing is
required." Smalley, 211 Wis. 2d at 802 (quoting State ex rel.
Wohlfahrt v. Bodette, 95 Wis. 2d 130, 133, 289 N.W.2d 366 (Ct.
App. 1980)).
23
No. 2018AP203-W
¶25 The parties' differing accounts of the near-ten-year
delay in the filing of Lopez-Quintero's petition illustrate why
the myriad of facts that could bear on whether it is equitable
to bar Lopez-Quintero's statutorily-compliant habeas petition
cannot be fully addressed in an ex parte denial. The State
accuses Lopez-Quintero of sleeping on his rights. While
conceding, as the court of appeals did, that his "stated
limitations account for some delay in this case," the State
insists that "Lopez-Quintero's lack of English proficiency, lack
of education, and lack of familiarity with Wisconsin's criminal
justice system" do not account for all of the delay.
¶26 Lopez-Quintero describes in his brief to this court
multiple reasons for his delay in seeking habeas relief.15 In
addition to asserting in his verified habeas petition linguistic
impediments, limited education, and unfamiliarity with the
criminal justice system, Lopez-Quintero delineates in his brief
a procedural history that he claims explains the delay. We do
not recount, accept as true, or rely upon Lopez-Quintero's
assertions concerning his reasons for filing his habeas petition
nearly ten years after his appeal rights expired. His account
15
The State protests that the petition itself did not
include the specific reasons for the delay in seeking habeas
relief that Lopez-Quintero now presents to this court. Because
we conclude that the law does not require habeas petitioners to
allege timeliness in their petitions, the purported
insufficiency or even the total absence of any explanation in
the petition for Lopez-Quintero's delay in filing it is
irrelevant.
24
No. 2018AP203-W
is immaterial to the issue we decide. We merely highlight that
the court of appeals never fully addressed the equitable
considerations related to the timing of the habeas petition——
which would include Lopez-Quintero's proffered reasons for the
delay——because it dismissed the petition ex parte. Lopez-
Quintero's articulated reasons for his delay in filing his
habeas petition are properly considered after the State's
assertion of laches in response to the petition, not before.
¶27 The State worries that declining to impose a
timeliness requirement for pleading habeas claims undermines the
finality of judgments and would allow "a petitioner [to] seek a
writ of habeas corpus 50 years after his conviction." The
State's fears are unfounded. Laches provides a process to
balance the State's concerns regarding the prejudice it could
suffer in being forced to respond to decades-old claims, as well
as the State's interest in the finality of judgments, against
the Great Writ's protection of constitutional rights.16
Consistent with our previous decisions, Lopez-Quintero's habeas
petition, or any other, may be barred if the State successfully
argues laches. The burden to demonstrate why a statutorily-
compliant claim for habeas relief should be denied as untimely
16
Laches similarly provides the process to address the
dissent's complaint that "it did not take Lopez-Quintero ten
years to figure out that no appeal was pending." Dissent, ¶56.
Equitable concerns about the near ten-year delay must be
addressed after hearing both sides, not in a perfunctory ex
parte dismissal.
25
No. 2018AP203-W
rests with the party seeking to avoid a substantive review of
the issue. Coleman, 290 Wis. 2d 352, ¶2 ("The State has the
burden of proof in regard to all the elements of its laches
defense.") If Lopez-Quintero's delay was unreasonable, the
State did not know Lopez-Quintero would bring the claim, and the
delay prejudiced the State, then the claim may be barred. See
id., ¶17 (explaining that once "the defense of laches is proved,
whether to apply laches and dismiss the habeas petition is left
to the discretion of the court of appeals"). It is the State
who bears the burden of proving the elements of laches.
¶28 A petition for habeas corpus constitutes the final
opportunity for an individual restrained of his personal liberty
to establish that the State's action against him violated our
constitutions or other law, after all other avenues for relief
are exhausted or shown to be inadequate. Habeas is the people's
bulwark against illegal confinement by the government. Bearing
in mind that "the overriding responsibility of [the Supreme]
Court is to the Constitution of the United States" and of this
court, to the Wisconsin Constitution as well, "no matter how
late it may be that a violation of the Constitution is found to
exist,"17 the court of appeals cannot forever foreclose an
individual's appellate rights, ex parte and on the basis of
untimeliness, when his attorneys failed to file the form
necessary to initiate the appeal he requested. Absent a
demonstration of prejudice by the State, a habeas petition may
17
See Chessman v. Teets, 354 U.S. 156, 165 (1957).
26
No. 2018AP203-W
not be denied merely because it was filed later than the court
of appeals believes it should have been.
III. CONCLUSION
¶29 We hold that neither Wis. Stat. § (Rule) 809.51 nor
equity imposes a "prompt and speedy" pleading requirement in the
filing of a petition for habeas corpus. The equitable defense
of laches exists to address any prejudice to the State caused by
a petitioner's unreasonable delay in the filing of a habeas
petition. A habeas petition may not be denied ex parte solely
because the petitioner failed to assert and demonstrate he
sought relief in a "prompt and speedy" manner. Instead, the
State bears the burden to raise laches as a defense and prove
(1) unreasonable delay, (2) lack of knowledge that the
petitioner would bring a habeas claim, and (3) resulting
prejudice. The State did not do so here because the court of
appeals erred in denying the petition ex parte without giving
the State the opportunity to respond and prove laches.
¶30 We recognize that "habeas corpus should not be 'made
the instrument for re-determining the merits of all cases in the
legal system that have ended in detention.'" Rose v. Mitchell,
443 U.S. 545, 581 (1979) (Powell, J., concurring in the
judgment; quoted source omitted). Our decision is a narrow one
and we make no assessment of the merits of Lopez-Quintero's
petition, much less the merits of his appeal should the court of
appeals reinstate his appellate deadlines; we merely recognize
his right to have his statutorily-compliant petition considered
without the court of appeals imposing a non-existent timeliness
27
No. 2018AP203-W
requirement as a basis for denying the petition ex parte.18
Accordingly, we reverse the decision denying Lopez-Quintero's
petition for habeas corpus and remand to the court of appeals
for further proceedings on the petition.
By the Court.——The decision of the court of appeals is
reversed and remanded.
18 The court of appeals retains the discretion to otherwise
deny habeas petitions ex parte on any grounds available under
the law. See Wis. Stat. § (Rule) 809.51(2). Puzzlingly, the
dissent asserts that the court "never says why the court of
appeals erroneously exercised the discretion the legislature
granted to it." Dissent, ¶63. Of course, the entirety of this
opinion explains why the court of appeals erred, although we
recognize it relied on unsound cases it was bound to apply. The
dissent seemingly equates "discretion" with "whim" but of course
the exercise of a court's discretion must be grounded in the
law, and as we have explained in some detail, ex parte denial of
a habeas petition for untimeliness bears no support in law or
equity. See State v. Avery, 2013 WI 13, ¶23, 345 Wis. 2d 407,
826 N.W.2d 60 (court of appeals "erroneously exercises its
discretion when it applies the wrong legal standard"); State v.
Martel, 2003 WI 70, ¶8, 262 Wis. 2d 483, 664 N.W.2d 69
(explaining that "a discretionary decision that is based upon an
error of law is an erroneous exercise of discretion"); see also
State ex rel. Singh v. Kemper, 2016 WI 67, ¶25, 371 Wis. 2d 127,
883 N.W.2d 86 ("Whether a writ of habeas corpus is available to
the party seeking relief is a question of law that we review
independently of the determinations rendered by the circuit
court and the court of appeals.").
28
No. 2018AP203-W.dk
¶31 DANIEL KELLY, J. (concurring). We have previously
suggested that a habeas petitioner must allege facts supporting
the petition's timeliness (see State ex rel. Coleman v.
McCaughtry, 2006 WI 49, ¶25, 290 Wis. 2d 352, 714 N.W.2d 900),
which I believe is a good and prudent safeguard against abuse of
this writ; but Coleman does not establish the timeliness element
with clarity, and rather than announcing such an element in a
contested case, I believe we should follow the federal court's
example of adopting the requirement through rulemaking (see Fed.
R. App. P. 9(a)). With that caveat, I join the court's opinion.
1
No. 2018AP203-W.pdr
¶32 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The
majority opinion errs in three major respects: First, by
excusing Lopez-Quintero's insufficiently pled petition; second,
by assuming the role of factfinder as it grounds its decision in
facts outside of the record that were never pled or supported by
affidavit, thereby accepting a petition that never asserts when,
where or how Lopez-Quintero specifically directed his attorney
to file an appeal; and third, by permitting habeas to lie ten
years after Lopez-Quintero's trial and conviction without a
reasonable factual basis for the delay, the majority opinion
excuses a ten-year delay. This is a sea change in the
responsibilities of a habeas petitioner, thereby creating an
opportunity for abuse of habeas in regard to direct appeals.
¶33 Accordingly, because the majority opinion overturns
long-standing habeas corpus precedent without recognizing that
it exists and thereafter does not apply Strickland v.
Washington, 466 U.S. 668 (1984), as interpreted by the United
States Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470
(2000), in regard to direct appeals, I would affirm the court of
appeals, and I respectfully dissent from the majority opinion.
I. BACKGROUND
¶34 On March 7, 2008, Lopez-Quintero was convicted of
first-degree intentional homicide with use of a dangerous weapon
and carrying a concealed weapon after a six-day jury trial.1 On
1 Lopez-Quintero was represented by privately paid counsel
at trial.
1
No. 2018AP203-W.pdr
April 9, 2008, he was sentenced to life in prison without the
possibility of parole. He moved for a new trial.2 Lopez-
Quintero signed a Notice of Right to Seek Postconviction Relief
(Notice of Right) form while he was in court on April 9, 2008.
Wisconsin Stat. § 973.18(3) requires:
Before adjourning the sentencing proceeding, the judge
shall direct the defendant and defendant's trial
counsel to sign a form to be entered in the record,
indicating that the lawyer has counseled the defendant
regarding the decision to seek postconviction relief,
and that the defendant understands that a notice of
intent to pursue postconviction relief must be filed
in the trial court within 20 days after sentencing for
that right to be preserved.
Lopez-Quintero was given a copy of the form he signed. Wis.
Stat. § 973.18(4). The Notice of Right form does not evidence
Lopez-Quintero's intent to appeal. Rather, the box he checked
states: "I plan to seek postconviction relief."
"Postconviction relief," which is defined in Wis. Stat.
§ 809.30(1)(c), is not specific to an appeal, but also includes
various motions for relief following conviction.
¶35 On June 10, 2008, the circuit court denied Lopez-
Quintero's request for a new trial because the evidence of his
guilt was so overwhelming that the circuit court concluded a new
trial would produce the same result. For example, gunshots that
caused the homicide came from a car owned by Lopez-Quintero, and
Lopez-Quintero was found a short time after the shooting with
the murder weapon tucked into the waistband of his pants.
2 Lopez-Quintero's trial counsel represented him on his
postconviction motion.
2
No. 2018AP203-W.pdr
¶36 When the circuit court denied Lopez-Quintero's motion
for a new trial, his attorneys asked about filing an appeal. In
preparation for the potential of an appeal, the circuit court
granted Lopez-Quintero fee waivers for trial transcripts. The
circuit court also waived the service and filing fees that would
be applicable if he decided to appeal. In addition, the court
directed Lopez-Quintero's trial counsel to continue until a
decision about whether to appeal was made. The transcripts for
Lopez-Quintero's trial were filed during 2008 and payment was
made by the State, according to the record for Kenosha County
Case No. 2007CF535.
¶37 Neither Lopez-Quintero nor anyone acting on his behalf
filed anything in regard to appealing or inquiring about an
appeal of his conviction until February 1, 2018, when the
Remington Center filed this petition for writ of habeas corpus
on his behalf in the court of appeals.3
¶38 The petition for habeas asserts that Lopez-Quintero's
"trial attorneys failed to fulfill their constitutional and
statutory obligations to file a Notice of Intent to Seek
Postconviction Relief ('Notice of Intent') within 20 days after
sentencing."4 The petition alleges that failing to make the
3 Wisconsin Stat. § 782.04 states that petitions for habeas
corpus "must be verified." Maier v. Byrnes, 121 Wis. 2d 258,
262, 358 N.W.2d 833 (Ct. App. 1984). Verification entails
signing a document in the presence of a notary public to assure
the truthfulness of the factual allegations. Kellner v.
Christian, 197 Wis. 2d 183, 188-89, 539 N.W.2d 685 (1995).
4 "Notice of Intent" starts the postconviction process.
Wis. Stat. § 890.30(2)(b). It is the next step after the
"Notice of Right" Lopez-Quintero signed in court on April 9,
(continued)
3
No. 2018AP203-W.pdr
appropriate filings within 20 days constituted ineffective
assistance of counsel, citing Strickland.
¶39 Although Lopez-Quintero's petition claims ineffective
assistance for failing to initiate a direct appeal, the petition
is not based on a transcript from an evidentiary hearing where
trial counsel was questioned, or on an affidavit of counsel
about why a Notice of Intent was not filed, or on Lopez-
Quintero's affidavit stating when, where or how he specifically
instructed counsel to appeal and that counsel refused to do so.
II. DISCUSSION
A. Standard of Review
¶40 A petition for writ of habeas corpus presents a mixed
question of fact and law, wherein we do not disturb historic
facts. State v. Pozo, 2002 WI App 279, ¶6, 258 Wis. 2d 796, 654
N.W.2d 12. However, whether habeas is available to the
petitioner is a question of law that we independently review,
while benefitting from the discussion of the court of appeals.
Id.
B. Habeas Corpus Petition
1. General Principles
¶41 Habeas corpus is a civil action, even if brought about
by a criminal charge. State ex rel. McCaffrey v. Shanks, 124
Wis. 2d 216, 223, 369 N.W.2d 743 (1985) (citing State ex rel.
Korne v. Wolke, 79 Wis. 2d 22, 26, 255 N.W.2d 446 (1977)). As
is required with other claims for relief, "[a] habeas petition
2008.
4
No. 2018AP203-W.pdr
must contain a statement of the legal issues and a sufficient
statement of facts that bear on those legal issues, which if
found to be true, would entitle the petitioner to relief."
State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶18, 290
Wis. 2d 352, 714 N.W.2d 990. The burden of proof in a habeas
corpus proceeding is on the petitioner to sustain his
allegations by a preponderance of the evidence. State ex rel.
Reddin v. Meekma, 99 Wis. 2d 56, 61, 298 N.W.2d 192 (Ct. App.
1980); State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 334, 283
N.W.2d 408 (Ct. App. 1979) (citing Walker v. Johnston, 312 U.S.
275, 286, (1941)); Wenzlaff v. Burke, 250 Wis. 525, 527, 27
N.W.2d 475 (1947).
¶42 Habeas corpus when issued is an equitable writ that
permits courts of equity to tailor a remedy that is necessary
under the particular facts. State ex rel. Memmel v. Mundy, 75
Wis. 2d 276, 288, 249 N.W.2d 573 (1977). However, habeas is
available only when the petitioner's liberty is restrained in
violation of the constitution or by a tribunal that lacked
jurisdiction. State ex rel. Marberry v. Macht, 2003 WI 79, ¶2,
262 Wis. 2d 720, 665 N.W.2d 155. We have concluded that a
petition for habeas corpus is an appropriate vehicle by which to
bring a claim of ineffective assistance of appellate counsel.
State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992).
¶43 As we have explained many times, in order to mount a
successful claim under Strickland, deficient performance by
counsel and prejudice to the defendant must be alleged and
proved. Strickland, 466 U.S. at 681-82. "[C]ourts must 'judge
5
No. 2018AP203-W.pdr
the reasonableness of counsel's challenged conduct on the facts
of the particular case, viewed as of the time of counsel's
conduct.'" Roe, 528 U.S. at 477.
¶44 The United States Supreme Court has repeatedly held
that disregarding "specific instructions" from a defendant to
file a notice of appeal is "professionally unreasonable." Id.
However, a defendant must clearly direct counsel to file an
appeal in order to conclude that failing to do so was deficient
performance. Id. (explaining that counsel is not deficient for
not filing a notice of appeal when defendant has not clearly
directed him to appeal). As Roe explained, "[t]o prove
deficient performance, a defendant can rely on evidence that he
sufficiently demonstrated to counsel his interest in an appeal.
But such evidence alone is insufficient to establish that, had
the defendant received reasonable advice from counsel about the
appeal, he would have instructed his counsel to file an appeal."
Id. at 486.
¶45 In addition, the "right to claim ineffective
assistance of counsel for failure to commence an appeal does not
exist indefinitely." State ex rel. Smalley v. Morgan, 211
Wis. 2d 795, 802, 565 N.W.2d 805 (Ct. App. 1997).5 As Smalley
5The majority opinion overrules State ex rel. Smalley v.
Morgan, 211 Wis. 2d 795, 802, 565 N.W.2d 805 (Ct. App. 1997).
Majority op., ¶1. In so doing, it incorrectly states that
Smalley was "abrogated in part by State ex rel. Coleman v.
McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900."
Coleman did not abrogate Smalley. Rather, Coleman explains that
"the Smalley decision actually rests on the application of
habeas principles" not on laches. Id., ¶25. In so doing,
Coleman affirms Smalley's timeliness requirement.
6
No. 2018AP203-W.pdr
explained, it was the petitioner's burden to show he was not
"capable" of learning prior to filing habeas that counsel had
not commenced any type of appeal on his behalf. Id. at 880 n.4.
Rather, in order for habeas to issue, the petitioner must show
that "the request for relief [was] made promptly and speedily."
See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI
58, ¶¶16, 17, 271 Wis. 2d 633, 681 N.W.2d 110 (discussing
invocation of the court's equitable powers to issue a writ
pursuant to Wis. Stat. § 809.51, a statutory provision that also
applies to writs of habeas corpus).
¶46 I further note that "[e]quitable remedies are not
available to one whose actions or inactions result in the harm."
Lohr v. Viney, 174 Wis. 2d 468, 477, 497 N.W.2d 730 (Ct. App.
1993). In this regard, the petitioner's conduct is a critical
factor in deciding whether according habeas relief is
appropriate. Coleman, 290 Wis. 2d 352, ¶25 (citing Smalley, 211
Wis. 2d at 802 n.7, and explaining that Smalley correctly
"places the burden of proof for timeliness of the [habeas]
petition on Smalley").
¶47 Furthermore, finality requires that postconviction
proceedings not continue indefinitely. State v. Escalona-
Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994). For
example, a convicted person is required to raise all grounds for
relief from his or her conviction in the initial Wis. Stat.
§ 974.06 motion. Id. at 185.
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2. Wisconsin Stat. §§ 809.51 and 782.04
¶48 Lopez-Quintero asserts a right to appeal by invoking
this court's supervisory jurisdiction pursuant to Wis. Stat.
§ 809.51. Subsection (1) requires that the petition contain:
(a) A statement of the issues presented by the
controversy;
(b) A statement of the facts necessary to
understanding of the issues;
(c) The relief sought; and
(d) The reasons why the court should take
jurisdiction.
Lopez-Quintero's petition also is required to comply with Wis.
Stat. § 782.04(5), which commands a statement of "In what the
illegality of the imprisonment consists." State ex rel. Santana
v. Endicott, 2006 WI App 13, ¶10, 288 Wis. 2d 707, 709 N.W.2d
515.
¶49 Wisconsin Stat. § 809.51(1) requires more than an
assertion that Lopez-Quintero wanted a direct appeal and he did
not get one. It requires a statement of the "issues presented
by the controversy" and "the facts necessary to understanding of
the issues." Wisconsin Stat. § 782.04(5) requires an
explanation of why Lopez-Quintero is being imprisoned
unlawfully. These two statutes form the framework for what must
be pled in a habeas petition.
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3. Lopez-Quintero's Petition
¶50 Even though the majority opinion labels it as a
"sufficiently pled habeas petition,"6 Lopez-Quintero's petition
for habeas is patently inadequate. The petition does not allege
facts showing that Lopez-Quintero had made a specific request of
counsel to appeal. Rather, the petition for habeas references
the June 10, 2008 Affidavit of Indigency. However, that
document demonstrates that no decision had been made on whether
to appeal: "Atty Frederick Cohn appointed to initiate appeal if
desired."7
¶51 Because the record before us is deficient, the
majority's decision places it in the position of adding facts to
the petition, so that if true, the petition would support
finding that Lopez-Quintero specifically directed his counsel to
appeal. The majority opinion goes on this factual journey with
the erroneous belief that "[t]he burden to demonstrate why a
statutorily-compliant claim for habeas relief should be denied
as untimely rests with the party seeking to avoid a substantive
review of the issue."8 The majority opinion cites Coleman, 290
Wis. 2d 352, ¶2 for this amazing proposition. However,
paragraph 2 of Coleman focuses on laches, explaining that if the
State raises laches as a defense, it has the burden to prove the
elements of that defense. However, the State did not plead in
6 Majority op., ¶10.
7 Affidavit of Indigency, p. 1 (emphasis added).
8 Majority op., ¶27.
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response to Lopez-Quintero's petition; therefore, the defense of
laches is not at issue. Furthermore, Coleman concludes that
habeas petitions have an obligation to plead facts which if true
would afford the relief the petition seeks. Id., ¶18.
Therefore, it is paragraph 18 of Coleman that is significant to
Lopez-Quintero's petition, not paragraph 2.
¶52 Furthermore, by finding facts, the majority takes a
far different tact than the United States Supreme Court followed
in Roe where there had been an evidentiary hearing at which
trial counsel testified. Roe, 528 U.S. at 475. Even after
reviewing testimony from that evidentiary hearing, the Supreme
Court concluded that the record from the hearing was
insufficient; and it remanded for further proceedings. Id. at
487 (explaining, "we are unable to determine whether [counsel]
had a duty to consult with respondent (either because there were
potential grounds for appeal or because respondent expressed
interest in appealing), whether she satisfied her obligations,
and, if she did not, whether respondent was prejudiced
thereby.").
¶53 Lopez-Quintero's petition says that he "wanted to
pursue postconviction relief" and he and Attorney Christopher
Cohen signed a Notice of Right. The petition also relates that
"Lopez-Quintero could not recall any instance where he met with
his attorneys to discuss the appeals process after sentencing."
¶54 Apparently the preparer of the habeas petition "spoke
with" Attorney Christopher Cohen, but Attorney Cohen "could not
remember what transpired between sentencing and the hearing on
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the motion for new trial that would explain why neither he nor
Attorney Frederick Cohn filed a Notice of Intent." There simply
is nothing in the petition about when, where or how Lopez-
Quintero specifically instructed his trial counsel to appeal or
why an appeal was not pursued. Perhaps after denial of the
motion for a new trial, counsel and Lopez-Quintero decided an
appeal would not be worth pursuing. The petition provides no
facts about any discussions with counsel on the merits or lack
thereof in regard to an appeal.
¶55 Furthermore, the petition does not evidence that the
preparers of the petition reviewed the transcripts of the trial
that have been on file with the Racine County Clerk of Court
since December of 2008. The petition gives us no indication of
whether there was a nonfrivolous issue that would be put forward
in an appeal if one were to go forward. Although identification
of grounds for appeal is not required, identification of an
appealable issue would have been of assistance to Lopez-
Quintero's petition. Id. at 487.
¶56 In addition, the record is silent about why Lopez-
Quintero waited ten years before seeking to institute an appeal.
While it is true that his trial counsel did not file a Notice of
Intent, it did not take Lopez-Quintero ten years to figure out
that no appeal was pending. The record shows that he received
oral and written notice that he had 20 days after sentencing to
preserve his postconviction rights; yet, he did nothing.
¶57 Perhaps because the majority recognized that the
habeas petition is deficiently pled, the majority opinion chose
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to fill in facts that are not in the habeas petition. The
majority acknowledges that factual allegations to which it
refers are not in the record, and asserts that they came from
Lopez-Quintero's brief.9 If there actually were such facts, they
should have been pled in the verified petition or contained
within an affidavit signed by Lopez-Quintero that the habeas
petition incorporated. There was no affidavit attached to the
petition, and none of the facts in ¶26 of the majority opinion
are in the petition or anywhere else in the record. Therefore,
they should not have been considered when the majority decided
that the State's objection to Lopez-Quintero's unexplained ten-
year delay in petitioning for habeas was "immaterial."10
Associated Bank, N.A. v. Brogli, 2018 WI App 47, ¶38, 383
Wis. 2d 756, 917 N.W.2d 37 (concluding that a reviewing court
cannot resolve questions when pertinent facts are not of
record); Lamb v. Manning, 145 Wis. 2d 619, 626, 427 N.W.2d 437
(Ct. App. 1988) (concluding that documents not of record or
authenticated by affidavit must be ignored by the court).
¶58 Wisconsin Stat. § 809.51(1)(b) directs that a
sufficient habeas petition must be grounded in "a statement of
the facts necessary to understanding" how Lopez-Quintero
specifically instructed counsel to appeal and that counsel
refused to act on his instruction. His petition, which says
9 Majority op., ¶26.
10
Id. Can other appellants now supplement habeas petitions
with factual allegations in their briefs? If so, this is new
law and poor precedent to establish.
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only that he wanted to appeal and missed the date, is not
sufficient. Stated more completely, the petition does not
allege when, where or how Lopez-Quintero specifically directed
his trial counsel to appeal. Without Lopez-Quintero's specific
direction to appeal, counsel's performance is not deficient.
Roe, 528 U.S. at 477.
¶59 The petition in Coleman is an excellent example of how
a petitioner for habeas can fulfill the pleading obligations of
Wis. Stat. §§ 809.51(1) and 782.04. Coleman's habeas petition
averred that although he wanted to appeal, counsel advised him
that he "had no chance of obtaining any relief on appeal."
Coleman, 290 Wis. 2d 352, ¶8. Coleman's petition then explained
that failing to appeal the denial of his suppression motion was
ineffective assistance because whether he had standing to
challenge the search of his girlfriend's home was a significant
and obvious issue. Id., ¶¶11, 12. Because denial of Coleman's
suppression motion was the genesis for his guilty plea, if he
were to prevail on the appeal and evidence found during the
warrantless search were suppressed, he would have withdrawn his
plea and his conviction would have been reversed. Id.
¶60 In the case before us, it is not surprising that the
court of appeals denied the petition as having been filed too
late. The petition does not narrate any facts that could be
read to show that Lopez-Quintero was not capable of learning for
ten years that no appeal was pending. Absent some reasonable
narration about why he waited ten years to seek a direct appeal,
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Wis. Stat. § 809.51(2) gives the court of appeals the discretion
to dismiss habeas petitions ex parte. It provides:
The court may deny the petition ex parte or may order
the respondents to file a response with a supporting
memorandum, if any, and may order oral argument on the
merits of the petition.
¶61 Here, the court of appeals denied the petition ex
parte, focusing on the lack of an explanation for the ten years
that passed subsequent to Lopez-Quintero's sentencing. However,
the inadequacy of Lopez-Quintero's petition should not result in
this court giving him a pass on his obligations under Roe,
Coleman, Strickland, Wis. Stat. §§ 809.51 and 782.04 to file a
verified petition that articulates his specific instructions to
counsel to appeal or supportive of a nonfrivolous trial error
that he seeks to appeal.
¶62 To some extent, the majority opinion falls into the
trap set by Lopez-Quintero's inadequate petition for habeas.
The majority opinion does so when it responds to the narration
in a petition rather than independently analyzing what is
necessary for a sufficient habeas pleading. In so doing, the
majority opinion erroneously gives the State the burden of
proving that the habeas petition is sufficiently stated,
impliedly finds facts necessary to its conclusion that the
petition is "statutorily-compliant,"11 and reverses the
discretionary decision of the court of appeals, contending that
11 Majority op., ¶¶24, 25, 27
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principles of equity do not "require a habeas petitioner to
allege timeliness in the petition."12
¶63 The majority opinion never says why the court of
appeals erroneously exercised the discretion the legislature
granted to it in Wis. Stat. § 809.51(2). If habeas had no time
limitations and laches were the only defense to habeas seeking
to appeal a ten-year-old conviction, the legislature would not
have given courts the statutory authority in § 809.51(2) to deny
habeas petitions ex parte. Stated otherwise, ex parte denials
of habeas must rely on the sufficiency of the habeas petition
because that is all a court would have available to consider
prior to a State response.
III. CONCLUSION
¶64 Because, as a matter of law, the foundational pleading
requirements of habeas corpus seeking to revive a direct appeal
have not been met by Lopez-Quintero's petition, I conclude that
the court of appeals did not erroneously exercise its discretion
in denying habeas relief ex parte, and I respectfully dissent
from the majority opinion.
¶65 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
12 Majority op., ¶1.
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