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Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel – Habeas in Court of Appeals as Exclusive Mechanism

State ex rel. Luis Santana v. Endicott, 2006 WI App 13

Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):

¶1        … Although Santana may seek habeas relief on his ineffective assistance claim, he started in the wrong forum.  His petition faults appointed counsel for failure to pursue an appeal. State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-99, 565 N.W.2d 805 (Ct. App. 1997), unequivocally requires defendants to raise this type of ineffective assistance claim in a Knight [2]petition to this court. That said, we emphasize that the dismissal below is without prejudice and that Santana may still file a Knight petition.

¶4        … Santana complains that counsel failed to file a no merit appeal or to move for postconviction relief.  Rule 809.32 governs no merit appeals. Had counsel moved for postconviction relief, he would have done so pursuant to Wis. Stat. § 974.02, which is governed by the procedural rules in Rule 809.30. See § 974.02(1); Evans, 273 Wis. 2d 192, ¶29 (such a motion may precede or substitute for a notice of appeal and may be a prerequisite to direct appeal depending on whether the issues argued were previously raised). Thus, Santana should have brought a Knight petition to this court.

¶5        The State, citing Smalley, 211 Wis. 2d at 798-99, and Ford,269 Wis. 2d 810, ¶¶36-37, observes that although this court accepts habeas petitions where appellate counsel is ineffective, we often remand to the trial court for fact finding and opines that “[i]t reasonably follows … that a trial court should be able to address a loss-of-direct-appeal claim in the first instance.” We disagree with the State’s suggestion that Smalley prescribes an optional procedure. …

¶6        Although we affirm the circuit court’s order dismissing Santana’s petition, we emphasize that he remains free to pursue the proper procedure by filing a Knight petition in this court. …

More than a little fussy, no? Not so much the abstract principle—court of appeals is exclusive forum to resolve Knight claim—but the result on these facts. The claim is in the court of appeals. Why can’t they just (liberally) construe the appeal to be a Knight petition, consistent with the idea that pro se claims are liberally construed so as to overcome technical defects? Santana will simply turn around, file the petition with the court of appeals, and they’ll have to review it anyway.


¶9        As for what does belong in the Knight petition, we observe that the procedures in Wis. Stat. Rule 809.51 apply. The petition should contain a statement of the issues and facts of controversy, the relief sought, and reasons why we should take jurisdiction. See Rule 809.51(1)(a)-(d); Smalley, 211 Wis. 2d 795 & n.7. The statement of facts should identify precisely what counsel did or failed to do. We note that the issue of waiver will also probably arise.  The State has posited that Santana waived his right to bring a loss-of-direct-appeal claim by waiting seven and one-half years to seek relief. Habeas relief is an equitable remedy subject to the doctrine of laches. Smalley, 211 Wis. 2d at 800. Santana should be prepared to address the State’s claim and to provide a factual basis for his delay. See id. at 802 (petition must allege facts demonstrating that the defendant sought prompt and speedy relief). [3]¶10      Additionally, the petition must comply with the requirements of Wis. Stat. § 782.04.  … We wish in particular to emphasize the verification requirement, which many prisoners overlook. Verification entails signing the document in the presence of a notary public. See Kellner v. Christian, 197 Wis. 2d 183, 188-89, 539 N.W.2d 685 (1995). The verification requirement assures “that the statements contained therein are presented with some regard to considerations of truthfulness, accuracy and good faith,” and petitions not properly verified do not meet the requirements for a valid application. Maier v. Byrnes, 121 Wis. 2d 258, 262-63, 358 N.W.2d 833 (Ct. App. 1984).

What’s with the incorporation of statutory habeas procedure, § 782.04? Habeas is a common law as well as statutory procedure, State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, ¶6, 593 N.W.2d 48, and a Knight petition is a common law mechanism. Nothing wrong, of course, with requiring that a habeas petition filed in the court of appeals comply with Rule 809.51, but compliance with § 782.04 (statutory habeas) is deeply problematic—not least because statutory habeas may be filed in any court, supreme court, court of appeals, and circuit court, § 782.03. The court just got done telling us that a Knight habeas can’t be filed in circuit court, so how can it justify incorporating a procedure which applies to circuit court?

Note as well the court’s recognition that if Santana has a constitutional or jurisdictional issue, he may raise it with a § 974.06 motion (¶¶8, 11) – with no mention made, by the way, of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). What this suggests, albeit obliquely, is that the E-N serial litigation bar simply does not apply where there has been no prior litigation. On this point, see State v. Anou Lo, 2003 WI 107, ¶44 n. 11 (“Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal. Therefore, in Loop v. State, 65 Wis.  2d 499, 222 N.W.2d 694 (1974), where the defendant filed a § 974.06 motion challenging his conviction without having previously filed a § 974.02 motion or pursued a direct appeal, he was permitted to raise a constitutional issue not raised on direct appeal because no direct appeal had been sought. We agree with this analysis.”).

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