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Defense win! SCOW says the court of appeals can’t deny a habeas petition ex parte based on laches

State ex rel. Ezequiel Lopez Quintero v. Dittmann, 2019 WI 58, reversing and remanding a court of appeals memorandum opinion, case activity (including briefs)

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.

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{ 1 comment… add one }
  • Robert Henak May 31, 2019, 10:24 am

    Although the petitioner wins this round, the majority perpetuates the myth that the state still may rely on the “equitable” remedy of laches to continue an unconstitutional detention. At least where counsel’s deficient performance has denied someone the right to the assistance of counsel on appeal, SCOTUS has held that ANY mistakes by the involuntarily unrepresented defendant are attributed to the state, not the defendant.

    When the right to counsel attaches, as on the direct appeal as of right from a criminal conviction, the state bears the “responsibility to ensure that petitioner was represented by . . . counsel.” Coleman v. Thomson, 501 U.S. 722, 754 (1991). If the state abdicates that responsibility by improperly denying counsel to a defendant or by failing to take the steps necessary to provide a defendant with counsel, any procedural defaults the pro se defendant commits are “‘imputed to the State.’” See id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

    Under Coleman v. Thomson, “[w]here a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that [collateral] review entails.” 501 U.S. at 754. In other words, the state which is legally responsible for ensuring that the defendant has his right to counsel cannot rationally be permitted to benefit from its own failure to satisfy that obligation when any delay is attributable to that failure.

    Accordingly, while a different rule may apply to ineffective representation by counsel on an appeal, laches cannot constitutionally apply to deny relief where the defendant was denied the assistance of counsel on the appeal. See my amicus brief in the Lopez-Quintero case.

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