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Wisconsin Supreme Court Holds That Statute Doesn’t Require Habeas Petitioner to Plead Timeliness, Overruling Smalley v. Morgan

by Douglas Ankney

The Supreme Court of Wisconsin held that neither Wisconsin Statute (“Wis. Stat”) § (Rule) 809.51 nor principles of equity impose a “prompt and speedy” pleading requirement in a habeas petition. In so doing, the Court overruled State ex rel. Smalley v. Morgan, 565 N.W.2d 805 (Ct. App. 1997), which imposed a “prompt and speedy” pleading requirement.

On March 7, 2008, Ezequiel Lopez-Quintero was found guilty of first-degree intentional homicide and carrying a concealed weapon. At Lopez-Quintero’s sentencing the following month, his attorneys were instructed by the trial court that a Notice of Intent to Pursue Postconviction Relief (“Notice”) must be filed within 20 days if Lopez-Quintero planned to appeal. The court provided him with a “Notice of Right to Seek Postconviction Relief” form. Lopez-Quintero reviewed the form with his attorneys and marked the box indicating “I plan to seek postconviction relief.” One of the attorneys signed the form and certified that he counseled his client about the 20-day deadline to make a decision about seeking postconviction relief and filing a Notice. At the conclusion of the sentencing hearing, one of the attorneys said he would “get that other document [Notice] filed within 20 days.” But no Notice was filed, and no appeal occurred. 

Almost 10 years later in February 2018, Lopez-Quintero petitioned the Court of Appeals for a writ of habeas corpus pursuant to Wis. Stat. § (Rule) 809.51(1). Based on State v. Knight, 484 N.W.2d 540 (Wis. 1992), he claimed his attorneys were ineffective for failing to file the Notice. Lopez alleged that he relied on his attorneys to pursue the appeal after he “unequivocally” indicated his intent to pursue postconviction relief when he checked the box on the Notice. He alleged his attorneys’ failure deprived him of an appeal. He requested his time for filing be reinstated, so he could pursue an appeal. He provided no reasons for waiting almost a decade before filing his habeas petition. The Court of Appeals, citing Smalley, denied his petition ex parte as “untimely.” The Wisconsin Supreme Court granted his petition for further review.

The Supreme Court observed that a habeas corpus petition is not a substitute for an appeal. But where an appeal was not taken due to an attorney’s ineffectiveness in failing to file the Notice, the remedy is to file the habeas petition in the Court of Appeals. Knight. Counsel’s “failure to perfect an appeal when the defendant has indicated a desire to appeal constitutes ineffective assistance of counsel.” State ex rel. Flores v. State, 516 N.W.2d 362 (Wis. 1994). A petition filed in the Court of Appeals pursuant to 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.” State ex rel. Coleman v. McCaughtry, 714 N.W.2d 900 (Wis. 2006). “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 City v. Town of Rosendale, 440 N.W.2d 818 (Wis. 1989)

The Court examined Wis. Stat. § (Rule) 809.51 and found it imposed no time limit on when a petition may be brought. It thus held 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 Court then addressed and overruled the Smalley decision. It observed that Smalley denied a habeas petition ex parte for failing to allege facts demonstrating that the petitioner sought prompt and speedy relief. Relying on the principles of equitable estoppel and laches, the Smalley decision held that Wis. Stat. § (Rule) 809.51 required a petitioner to “allege facts [in the petition] that he sought prompt and speedy relief.” But the Supreme Court determined it could not “add words to a statute to give it a certain meaning.” Thus, the Court overruled Smalley and ruled that the Court of Appeals cannot deny habeas petitions ex parte for untimeliness. Instead, the Court of Appeals must direct the State to respond to the petition if it meets the filing requirements of the statute.

The State argued that Smalley was correctly decided because otherwise defendants could bring habeas petitions 50 years after being sentenced if there is no time limitation. The Court rejected that argument on the ground that the State may then raise the defense of laches, the elements of which are: (1) unreasonable delay in filing the petition, (2) lack of State’s knowledge that petitioner would be bringing the habeas claim, and (3) prejudice to the State. The Supreme Court emphasized that the State bears the burden to raise and prove all the elements of the defense. Accordingly, the Supreme Court reversed the decision of the Court of Appeals and remanded for further proceedings on the habeas corpus petition. See: State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58 (2019). 

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Related legal case

State ex rel. Lopez-Quintero v. Dittmann



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