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Collateral-Attack Procedure: Habeas (Knight Petition), Laches Bar – Serial Litigation Bar, Previously-Litigated Issue

State v. Jerred Renard Washington / Jerred Renard Washington v. State, 2012 WI App 74 (recommended for publication); case activity (974.06); case activity (writ)

Habeas (Knight Petition) – Laches 

Following his plea-based conviction in 1997, Washington’s retained counsel filed a postconviction 809.30 motion in 1998. Counsel did not file a notice of appeal, however, after the motion was denied. Then, in 2009, Washington filed a Knight petition asserting ineffective assistance of appellate counsel for failure to prosecute a direct appeal. The court now concludes that the claim is barred by laches.

¶19      The Wisconsin Supreme Court has recognized laches as an available defense to a habeas petition.  State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶17, 290 Wis. 2d 352, 714 N.W.2d 900.[13]  The court held that where a habeas petition is brought by a Wisconsin prisoner, the burden is on the State to show that:  (1) the petitioner unreasonably delayed in bringing the claim; (2) the State lacked knowledge that the claim would be brought; and (3) the State has been prejudiced by the delay.  Id.Sawyer v. Midelfort, 227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999).

The court concludes that all three elements are proven. 1) Unreasonable delay, ¶22: Washington waited over five years, after becoming aware that no appeal was filed, before raising the issue despite having raised in the interim several other issues. “Under these circumstances, a five-year delay in alleging the denial of his appellate rights is unreasonable.” Washington’s pro se status didn’t excuse the delay, taking into account his demonstrable “familiarity with postconviction and appellate procedures,” ¶23. 2) State’s lack of knowledge, ¶24: “Washington has pursued five motions for collateral relief since his time to appeal expired in 1998.  The State had no reason to suspect that Washington would pursue yet another form of collateral relief that he did not raise in his prior filings.” 3) Prejudice to State, ¶25: by the time of the evidentiary hearing on the petition, counsel’s client file had been destroyed, and he lacked independent recollection of the details.

¶26      Having concluded that the State has proven laches, we further determine that applying laches is appropriate and equitable here.  It has long been held in Wisconsin that successive attempts at postconviction relief will not be tolerated in the absence of extraordinary circumstances.[15]  Here, Washington sat on his hands for at least five years after allegedly discovering he was denied an appeal, failing to immediately seek reinstatement of his appellate rights.  Instead, he filed three other requests for collateral relief.  If we were to grant Washington reinstatement of his appellate rights now, the results of his prior motions would be nullified, see Betts v. Litscher, 241 F.3d 594, 597 (7th Cir. 2001), and Washington would be permitted multiple reviews of the same issues and new issues that may otherwise be procedurally barred.  Our jurisprudence does not require such an inefficient result, particularly when a defendant does not provide a sufficient reason for his failure to bring a claim sooner.  See State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 343, 576 N.W.2d 84 (Ct. App. 1998) (“[D]ue process for a convicted defendant permits him or her a single appeal of that conviction and a single opportunity to raise claims of error.…  Successive, and often reformulated, claims clog the court system and waste judicial resources.”).  Washington has failed to provide any reason, much less a sufficient reason for his delay.  As such, we deny Washington’s petition for a writ of habeas corpus.

Serial Litigation Bar – Previously-Litigated Issue 

Washington’s prior, pro se postconviction motion for relief is deemed to raise the same issue as that currently asserted on appeal, and is thus procedurally barred under State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991) (“A matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue.”).

¶29      The crux of Washington’s August 2008 motion was that the State breached the plea agreement by filing the Wis. Stat. ch. 980 petition.  See State v. Sprang, 2004 WI App 121, ¶14, 274 Wis. 2d 784, 683 N.W.2d 522 (“‘[A]n accused has a constitutional right to the enforcement of a negotiated plea agreement.’”) (citation omitted; brackets in Sprang).[16]  His current motion for plea withdrawal argues that his plea was not knowingly, intelligently, and voluntarily entered, violating his right to due process, because he falsely believed that his plea precluded the State from bringing a ch. 980 petition.  In short, Washington’s August 2008 motion and his current motion for plea withdrawal rest on the same issue:  whether Washington’s plea precluded the State from filing a ch. 980 petition seeking Washington’s commitment.

¶30      We have repeatedly held that “[a] matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue.”  Witkowski, 163 Wis. 2d at 990.  That is the case here.  Washington simply “attempts to rephrase or re-theorize his previously-litigated challenge.”  See id. at 992.  He cannot do so.[17]  As such, we affirm the circuit court’s order denying Washington’s motion for plea withdrawal.  See State v. Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (Ct. App. 2010) (We are not bound by the circuit court’s reasoning in affirming its order.).

Washington’s claim for relief is as follows. He negotiated a plea to an offense (3rd-degree sexual assault) that did not, at the time, expose him to Ch. 980 commitment; however, the legislature subsequently (2006) amended the law so as to permit such commitment; therefore, the plea wasn’t knowing, etc., and Washington found himself on the business end of a commitment petition. On its face, the argument appears to be compelling – even putting aside the “Padilla Revolution” with respect to the direct-collateral consequence distinction (which may call into question whether 980 commitment-eligibility is collateral as opposed to direct consequence of conviction), a defendant who has been misinformed as to such eligibility may obtain plea-withdrawal, State v. Brown, 2004 WI App 179, ¶13, 276 Wis. 2d 559, 567, 687 N.W.2d 543. As seen, Washington filed two pro se motions that, as construed, argued that the commitment petition should be dismissed as a matter of specific performance of the plea bargain. Is that argument, even as construed, really the same as an argument that the plea should be vacated as unknowing, etc.? You be the judge.

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