State ex rel. Coleman v. McCaughtry

• Decision Date: 18 May 2006
• Docket Number: No. 2004AP548-W.,2004AP548-W.
• Citation: 2006 WI 49,714 N.W.2d 900
• Parties: STATE of Wisconsin ex rel. Marvin COLEMAN, Petitioner-Petitioner, v. Gary R. McCAUGHTRY, Warden, Waupun Correctional Institution and Matthew J. Frank, Secretary, Department of Corrections, Respondents.
• Court: Wisconsin Supreme Court

Page 900

714 N.W.2d 900

2006 WI 49

STATE of Wisconsin ex rel. Marvin COLEMAN, Petitioner-Petitioner, v. Gary R. McCAUGHTRY, Warden, Waupun Correctional Institution and Matthew J. Frank, Secretary, Department of Corrections, Respondents.

No. 2004AP548-W.

Supreme Court of Wisconsin.

Argued October 12, 2005.

Decided May 18, 2006.

For the petitioner-petitioner there were briefs by Brian Kinstler and Kohler & Hart, L.L.P., Milwaukee, and oral argument by Brian Kinstler.

For the respondents the cause was argued by William L. Gansner, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

This case requires us to review the denial of Marvin Coleman's petition for writ of habeas corpus, which alleged ineffective assistance of appellate counsel. The State asserted that his claim was barred by laches and the court of appeals agreed, dismissing Coleman's petition.

¶ 2 The State has the burden of proof in regard to all the elements of its laches defense. With that in mind and based on the record before us, we affirm the conclusion of the court of appeals that the State proved that Coleman unreasonably delayed in filing a petition for writ of habeas corpus as a matter of law. However, the factual record is insufficient for a reviewing court to decide whether the State suffered prejudice.¹ Therefore, we reverse and remand to the court of appeals for fact-finding to determine whether the State has been prejudiced by Coleman's unreasonable delay. The court of appeals shall select a method appropriate for fact-finding, either through the use of a special master or by remand to the circuit court.²

I. BACKGROUND

¶ 3 On February 19, 2004, Coleman filed a petition for writ of habeas corpus in the court of appeals under State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), asserting that his appointed appellate counsel was constitutionally ineffective because he failed to pursue an appeal from Coleman's 1986 Rock County convictions.

¶ 4 The criminal case that underlies Coleman's petition for habeas can be outlined as follows: in 1986, Coleman was charged with nine criminal counts. He moved to suppress evidence found in a search of Vanessa Henning's residence on Sunshine Street that supported the charged offenses. Henning testified at the suppression hearing that she consented to the search because she believed she had no choice after officers told her they would arrest her if she did not allow them to search her home. Henning's grandmother, present at the time of the search, testified to the same effect. Two Beloit police detectives testified that Henning had not been threatened with arrest. They also testified that on the day after the search of Henning's house, she contacted police to report that she had found additional clothing and a box containing bullets that belonged to Coleman. She asked that an officer come and get them. One of the officers also said that Coleman said he resided on Nelson Avenue with his aunt and uncle, and that he did not refer to Henning's house as his residence.

¶ 5 Coleman also testified. He said that he had been living at the Sunshine Street house; that he had been Henning's partner for six years; that he lived with her in her previous residence; and that he was the father of her children. The State emphasized that Coleman had not stayed at Henning's house continuously; that Coleman and Henning had broken up; that Henning had ordered Coleman out of the house; and that Coleman's belongings were in the basement in plastic bags at the time of the search.

¶ 6 The circuit court found that there was "clear and positive evidence" that Coleman was not a resident of Henning's house on the date of the search. Without reaching the issue of whether Henning's consent to search was voluntary, the circuit court concluded that Coleman did not have standing to challenge the search and denied his motion to suppress. Coleman then pled guilty to all counts, which included sexual assault, armed robbery, theft, and battery. He was sentenced to eighty years imprisonment.

¶ 7 Coleman was appointed postconviction and appellate counsel after his plea, and he filed an unsuccessful motion for sentence modification in January of 1987. According to Coleman, his appellate counsel advised him that there was no chance of obtaining relief on appeal; therefore, he took no direct appeal.

¶ 8 The record before us includes three written communications between appellate counsel and Coleman over the course of almost a year that relate to the decision not to appeal. They provide a less than complete picture of what happened regarding this decision. For example, on June 1, 1987, appellate counsel wrote to Coleman at the Columbia Correctional Institution. He said:

I write simply to confirm the agreement we reached on May 29, 1987.

I told you that I thought you had no chance of obtaining any relief on appeal. You accepted my view and indicated that you did not want to pursue an appeal.

¶ 9 On May 17, 1988, Coleman wrote back to appellate counsel:

I'm writing requesting my transcripts so that I may do the necessary research, that you fail [sic] to do for an appeal or post-conviction. Please do not close my appeal, if [a] deadline has not accured [sic].

By me gathering greater knowledge of law and ect. [sic] I come to know that you were not out to do your job, in helping me do the research for my appeal or post-conviction relief.

I know why you didn't do the best of your ability, its [sic] because your [sic] not the one who has to sit behind these bars each and everyday. No!, its [sic] me that will remain here for the rest of my life if nothing is done about it.

¶ 10 Appellate counsel wrote back to Coleman on May 23, 1988, and enclosed copies of police reports and transcripts. He stated:

In your letter you say that I failed to do the necessary research for an appeal or post-conviction relief in your case. I have to disagree with that. I did substantial research in an effort to find a way to obtain a reversal of the trial court's ruling on your suppression motion or to find a way to permit you to withdraw the guilty pleas you entered before Judge Dahlberg on May 28, 1986. You and I discussed different possible avenues of relief on January 16, 1987 and again on May 29, 1987. At that time you agreed with me that there was no hope for an appeal and told me not to pursue one. We had tried to have Judge Dahlberg modify your sentence. He denied that motion.

¶ 11 Coleman argues that he was denied effective assistance of appellate counsel because his attorney failed to appeal the Fourth Amendment issue regarding whether Henning consented to the search. He argues that, pursuant to State v. Johnson, 153 Wis.2d 121, 129, 449 N.W.2d 845 (1990) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), he is entitled to relief from his counsel's deficient performance because a reasonable attorney would have pursued the issue of consent, and that there is a reasonable probability that but for counsel's deficient performance, he would have prevailed on appeal.

¶ 12 Coleman also claims United States Supreme Court precedent has established that one need not be a resident of the premises to have standing to challenge a search, so long as the individual has a reasonable expectation of privacy in the premises searched, which he claims to have had.

¶ 13 While noting that Coleman does not assert that he instructed postconviction counsel to pursue an appeal, the State focuses, not on the merits of the ineffective assistance of counsel claim, but rather, on the merits of its laches defense to the petition for habeas. The State acknowledges that the available information about the decision not to pursue an appeal does not reveal with particularity the process by which appellate counsel reached the conclusion that the Fourth Amendment issue was without merit. It also does not address the conversations counsel had with Coleman prior to Coleman's reaching the final decision not to appeal.

¶ 14 The State emphasizes that the record shows Coleman failed to take any action between 1987 and 2004 and that his failure not only supports part of the laches defense, but also reinforces the State's position that Coleman agreed not to pursue an appeal. Coleman does not assert that he requested counsel to appeal and counsel ignored his request. Counsel did file a motion for postconviction relief in regard to sentencing, but that was unsuccessful.

¶ 15 The State notes that it suggested to the court of appeals that the court consider directing appellate counsel to respond to the petition for habeas in regard to his ability to recall or reconstruct the circumstances surrounding his representation of Coleman. The court of appeals chose not to do so. Instead, it concluded that Coleman's delay in petitioning for habeas was unreasonable and that the State was prejudiced by the delay. From those conclusions, the court determined that the State had proved its laches defense. This precluded an evidentiary hearing on the merits of Coleman's habeas petition. It is the court of appeals' decision on laches that we now review.

II. DISCUSSION

¶ 16 A convicted criminal defendant has a right to postconviction relief that includes both a postconviction motion under Wis. Stat. § 974.02 (2003-04),³ and a direct appeal, pursuant to the Wisconsin Constitution, Article I, § 21(1) and Wis. Stat. § 809.30. Once the time for direct appeal has passed, a defendant in a criminal case may collaterally attack his conviction pursuant to a Wis. Stat. § 974.06 motion, Peterson v. State, 54 Wis.2d 370, 381, 195 N.W.2d 837 (1972), or via a petition for writ of habeas corpus. Knight, 168 Wis.2d at 522, 484 N.W.2d 540. Coleman has properly chosen the last form under which to seek relief from his convictions because his claim is based on an allegation of ineffective assistance of...