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State ex rel. Lorenzo Kyles v. William Pollard, 2012AP378-W, petition for review granted 12/17/13

Review of an unpublished court of appeals decision that is not available online; case activity

Issue:  Whether a client alleging ineffective assistance of counsel based on his trial lawyer’s unavailability or failure to respond to a request for an appeal during the 20-day period for filing a notice of intent to pursue postconviction must raise his claim via a § 974.06 motion or a Knight petition?

SCOW is wading into a procedural thicket with this case.  Kyles was convicted of 1st-degree reckless homicide by use of a dangerous weapon.  The day of his sentencing he signed a “notice of right to seek postconviction relief” form indicating that he was “undecided” about pursuing postconviction relief but also indicating that he understood that he had to give his lawyer a decision within 20 days.  Kyles insists that within that 20-day period he made numerous efforts to contact his lawyer to say that he wanted an appeal, but his lawyer didn’t take his calls or respond to his letter.  As you might guess, no notice of intent was filed.  Afterwards,  Kyles filed extension motions and habeas petitions in the court of appeals, the circuit court, the federal district court–every procedural maneuver he could think of to get his appellate rights reinstated.   He was blocked at every turn.

The court of appeals’ decision issue here holds that a Knight petition (which alleges ineffective assistance of appellate counsel) is not proper vehicle for Kyles’ claim.  He needed to file a habeas petition in the circuit court.  That’s questionable given that the circuit court lacks the authority to issue the remedy Kyles wants–an extension of the deadline to file a notice of intent.  The State’s response to Kyles’ petition for review concedes that Wisconsin has never resolved the question of where a habeas petition alleging ineffective assistance of counsel for failing to file a timely notice of intent should be filed–in the trial court or the court of appeals. Looks like SCOW will now decide the issue identified in State v. Quackenbush, 2005 WI App 2, 278 Wis. 2d 611, 692 N.W.2d 340.  See also, State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997) and State ex rel. Santana v. Endicott, 2006 WI App 13, 288 Wis. 2d 707, 709 N.W.2d 515.

Point of interest:  Kyles filed a pro se petition for review, and Attorney Rob Henak is representing him on the merits pro bono.  Snaps for both!

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