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Petition for Review Deadline – Prison Mailbox Rule, Retroactivity

State ex rel Norman O. Brown v. Bradley, 2003 WI 14, on original petition for writ of habeas corpus
For Brown: Greg J. Carman


¶1. The Petitioner, Norman O. Brown, seeks reinstatement of his petition for review which was previously dismissed as untimely filed. Brown contends that this court should apply retroactively the tolling rule for pro se prisoners that it adopted in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, and deem his petition for review “timely.”¶2. We now conclude that the tolling rule we adopted in Nichols is a civil procedural rule with limited retroactive application. It applies retroactively to cases on direct review or not yet final when Nichols was decided and to pro se prisoners who had raised the issue in habeas petitions that were still pending before this court. Because this court denied Brown’s petition for review prior to deciding Nichols, he is not entitled to relief under this application of the tolling rule. However, we determine that denying relief to Brown would be unjust because this court denied Brown’s petition for habeas corpus while nearly simultaneously granting Nichols’ petition raising virtually the same claim. Accordingly, we reinstate Brown’s petition for review pursuant to Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986).

(PFR deadlines involve a rule of civil, not criminal, procedure. ¶¶13-14. Retroactivity is the rule, not the exception. ¶16. The test for retroactivity is found in Chevron Oil v. Huson, 404 U.S. 97 (1971), adopted in Kurtz v. City of Waukesha, 91 Wis. 2d 103, 109, 280 N.W.2d 757 (1979). Applying those factors: only “limited,” not “full,” retroactivity is warranted, ¶¶18-28; on the particular facts, Brown’s case is sufficiently similar to Nichols’ that differential relief would be unjust. ¶¶29-36.)


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