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SCOW clarifies the forum and procedure for raising a claim that counsel was ineffective for failing to file notice of intent to pursue postconviction relief

State ex re. Lorenzo D. Kyles v. William Pollard, 2013 WI 38, reversing an unpublished court of appeals decision; case activity

Settling a somewhat obscure but still important point of appellate procedure, the supreme court unanimously holds that when a defendant seeks to reinstate the deadline for filing a notice of intent to pursue postconviction relief under § 809.30(2)(b) based on an allegation that counsel was ineffective for failing to file a timely notice, he should file a habeas petition in the court of appeals as provided under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

This case involves issues of procedure, so a summary of its procedural history is necessary.

Kyles alleges that after being convicted in November 2002, he tried several times to tell his lawyer he wanted to file a notice of intent to pursue postconviction relief. (¶¶6-9). When he finally talked with his lawyer in January 2003, after the 20-day deadline for filing the notice had expired, his lawyer told him there were few issues for appeal and didn’t advise him he could seek an extension or reinstatement of the deadline under § 809.82(2). (¶10). Kyles thereafter filed a pro se habeas petition in the court of appeals pursuant to Knight, alleging his lawyer’s failure to file a timely notice constituted ineffective assistance of appellate counsel. The court of appeals denied the petition, holding it should have been filed in circuit court under State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996), because it involved ineffective assistance of postconviction, not appellate, counsel. (¶11).

Kyles duly refiled in the circuit court, which denied the petition for failing to state a viable claim for relief. (¶12). After unsuccessfully appealing the circuit court’s order, Kyles again sought relief in the court of appeals. (¶¶13-15). First he filed a § 809.82(2) motion to extend the now-lapsed deadline for filing the notice; that was denied for failing to show “good cause.” (¶14). Then he filed another Knight petition; that was denied again on the ground it should have been filed in the circuit court. (¶15).

The supreme court accepted review of the denial of the second Knight petition and now agrees with every point of Kyles’s argument that a habeas petition in the court of appeals is the proper procedure and forum for his claim.

The usual forum for an ineffective assistance claim is where the alleged error occurred, as illustrated by Knight (ineffective appellate counsel claims are brought in the court of appeals) and Rothering (ineffective postconviction counsel claims are brought in circuit court). (¶¶25-27). But deciding the appropriate forum also requires consideration of the appropriate remedy. (¶¶29-32). Failing to file a timely notice of intent is essentially a failure to commence an appeal, and a claim counsel was ineffective for failing to commence an appeal is litigated with a Knight petition. State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997); State ex rel. Santana v. Endicott, 2006 WI App 13, 288 Wis. 2d 707, 709 N.W.2d 515. (¶¶33-37). Further, the remedy for Kyles’s claim is an extension of the time to file a notice of intent; the circuit court can’t grant that remedy, but the court of appeals can. § 808.075(2), State v. Rembert, 99 Wis. 2d 401, 406 n.4, 299 N.W.2d 289 (Ct. App. 1980). (¶¶22, 32, 38). Thus, “[b]ecause the circuit court is unable to provide a remedy for the failure to file a notice of intent to seek postconviction relief and because our case law permits similar claims to be brought in the court of appeals, we determine that the court of appeals is the proper forum for claims of ineffectiveness premised on counsel’s failure to file a notice of intent.” (¶38).

Next, applying State v. Evans, 2004 WI 84, 273 Wis. 2d 192, 682 N.W.2d 784, which limited the court of appeals’ authority to grant § 809.82(2) extension motions based on ineffective assistance grounds, the court decides the appropriate procedure for bringing the claim will usually be a habeas petition rather than an extension motion. (¶¶39-44). Extension motions do not address or resolve the merits of the underlying claim and are decided quickly, often without response by the adverse party. (¶¶41-42). By contrast, “the complex legal issues involved and fact-intensive inquiry required by most ineffective assistance of counsel claims in the court of appeals requires the more thorough analysis provided by a Knight petition.” (¶44).

The court recognizes that a habeas petition will be the appropriate procedure for “most” but not all ineffective claims: “We acknowledge that not all ineffectiveness claims involve fact-intensive inquiries and complex legal issues. For example, counsel could miss the deadline for filing a notice of intent by a day or two due to office failure or incorrectly noting the deadline. In such circumstances the truncated procedure provided by Wis. Stat. § 809.82(2) may be more appropriate. See State v. Quackenbush, 2005 WI App 2, 278 Wis. 2d 611, 692 N.W.2d 340.” (¶44 n.12). It is significant the court validates the conclusions of Quackenbush (which otherwise appeared to stand in some tension to Evans) because the ability to file an extension motion rather than a habeas petition will make it easier for defendants in situations like those listed to seek reinstatement of lapsed deadlines for filing a notice of intent.

Which brings up another point: This decision addresses requests for extensions of time to file the notice based on the ineffective assistance of counsel. (¶¶16, 24-25, 28, 31-32, 37-39, 46). Not every defendant seeking such an extension is alleging—or even can allege—that counsel was ineffective. Indeed, it is likely the great majority of requests to extend the time to file the notice are based on claims of “good cause” that have nothing to do with counsel’s conduct. For instance: the defendant gets moved to Dodge before he can tell his lawyer in time to file the notice within 20 days; or the defendant writes or calls to tell his lawyer to file the notice but the lawyer doesn’t get the information till after the deadline has expired; or the defendant is initially undecided and changes his mind shortly before or after the deadline, and isn’t able to tell his lawyer till after the time has run. In circumstances like these, where the extension is not sought based on counsel’s alleged ineffectiveness, a § 809.82(2) motion is the only way to extend the deadline, and everything Quackenbush says about the relevant factors for good cause and the lenient policy about granting extensions (e.g., 278 Wis. 2d 611, ¶¶11, 14) will still apply.

Having determined Kyles was correct to file a Knight petition, the court agrees with the parties that Kyles’s petition is sufficient to entitle him to an evidentiary hearing on his claims. (¶¶46-54). It also holds Kyles’s claim isn’t barred by his earlier attempts at appealing his case pro se after he was allegedly denied counsel (¶55), all of which were “thwarted” due to his lack of legal knowledge and the lower courts’ confusion over where and how he should file his claims. (¶57).

¶56  “[O]ne principal reason why defendants are entitled to counsel on direct appeal is so that they will not make the kind of procedural errors that unrepresented defendants tend to commit.” Betts v. Litscher, 241 F.3d 594, 596 (7th Cir. 2001). It is incongruous to state that a defendant was denied the right to counsel and then preclude the defendant from raising a claim because of errors made due to the absence of counsel. Page v. Frank, 343 F.3d 901, 909 (7th Cir. 2003); see also Coleman v. Thompson, 501 U.S. 722, 754 (1991) (“if the procedural [error] is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the [error] be imputed to the State”).

The state argued that one of Kyles’s specific allegations—that trial counsel was ineffective for failing to file an extension motion after they finally talked in January 2003—wasn’t presented in Kyles’s pro se petition for review, but the court, liberally construing the sufficiency of the petition, finds the allegation was “inextricably intertwined” with his ineffective claim. (¶¶51-54).

And a last, but definitely not least, point: Kudos to Attorneys Rob Henak and Melinda Swartz for representing Kyles pro bono publico in the supreme court!

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