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SCOW to review dismissal of habeas petitions based on laches

State ex rel. Ezequiel Lopez-Quintero v. Michael A. Dittman, 2018AP203-W, petition for review of a memorandum opinion granted 6/11/18; case activity

Issue (from the petition for review)

Can the court of appeals apply an irrebuttable presumption of prejudice and deny ex parte a sufficiently pled petition for writ of habeas corpus solely for untimeliness, under Wis. Stat. § 809.51?

Props to SCOW for granting review in this case.  In 2008, Lopez-Quintero was sentenced to life in prison without possibility of parole for 1st-degree murder. His trial counsel assured the court that he would file the Notice of Intent within 20 days but he didn’t. Nor did he seek an extension of the deadline for filing one.  Lopez-Quintero has a limited education (1 year of middle school in Mexico) and only speaks Spanish. He was not informed what would happen after he indicated his desire to appeal on the Notice of Right to seek Postconviction Relief)(not to be confused with the Notice of Intent). He relied entirely on his lawyers to take the steps necessary to preserve his rights.

Ten years later, enter the Remington Center armed with a 16-page petition for habeas corpus seeking to reinstate Lopez-Quintero’s appeal rights. Guess what the court of appeals said? “Although Lopez-Quintero’s stated limitations can account for some delay in this case, it cannot account for over 9 years of delay.” Seriously?

The Remington Center points out §809.51  governs the contents of a petition for habeas corpus. However, the court of appeals created a “prompt and speedy” filing requirement that does not appear the statute. See State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997). The court of appeals sees this as an irrebuttable presumption that the State is prejudiced by untimely filed petitions for writ of habeas corpus. That is, the State is relieved of its burden of proving prejudice under the doctrine of laches.  But State ex rel Coleman v. Mcaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900 (partially abrogating Smalley) calls that holding into question.  Coleman, for example, knew he had a claim but waited 17 years to file his petition for writ of habeas corpus. Even then SCOW remanded the case to the circuit court for a hearing and fact-finding on whether the delay actually prejudiced the State. So you can see why the Remington Center thinks the court of appeals dashed headlong out-of-bounds in this case.


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