Go Remington Center for the 5-2 win in SCOW! The court of appeals dismissed R.C.’s habeas petition ex parte because it did not allege why Lopez Quintero waited 9 years to file it in violation of State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997). This overrules Smalley and holds that a habeas petitioner need not allege timeliness in his petition.
Smalley held that 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. But the majority holds that neither the text of Rule 809.51 nor Wisconsin case law supports the imposition of this “prompt and speedy” pleading requirement. Opinion, ¶21. Thus, going forward:
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. Opinion, ¶29.
Roggensack dissented in an opinion joined by Ziegler. They argue that (1) the R.C’.s petition was insufficiently pled; (2) the majority found facts outside the record that the petition did not even allege–namely when, where and how Lopez Quintero directed his lawyer to file an appeal 9 years ago; and (3) the majority allowed “habeas to lie” almost 10 years after Lopez Quintero’s conviction without a reasonable factual basis for the delay. Dissent, ¶32.
The majority has an easy and obvious answer to these criticisms. It decided only the narrow issue of whether the petition was sufficiently pled, not whether relief should be granted. Indeed it remanded the petition to the court of appeals for a decision on the merits.