State ex rel. Lopez-Quintero v. Dittmann

• Decision Date: 29 May 2019
• Docket Number: No. 2018AP203-W,2018AP203-W
• Citation: 2019 WI 58,387 Wis.2d 50,928 N.W.2d 480
• Parties: STATE of Wisconsin EX REL. Ezequiel LOPEZ-QUINTERO, Petitioner, v. Michael A. DITTMANN, Respondent.
• Court: Wisconsin Supreme Court

387 Wis.2d 50

928 N.W.2d 480

2019 WI 58

STATE of Wisconsin EX REL. Ezequiel LOPEZ-QUINTERO, Petitioner,

v.Michael A. DITTMANN, Respondent.

No. 2018AP203-W

Supreme Court of Wisconsin.

Oral Argument: October 12, 2018

Opinion Filed: May 29, 2019

For the petitioner, there were briefs filed by Gregory W. Wiercioch, Victor Pelaez, student practitioner, and Frank J. Remington Center, Madison. There was an oral argument by Gregory W. Wiercioch.

For the respondent, there was a brief filed by Kara L. Mele, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general. There was an oral argument by Kara L. Mele.

An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Robert R. Henak and Henak Law Office, S.C., Milwaukee.

REBECCA GRASSL BRADLEY, J.

¶1 We review the court of appeals' decision to summarily deny as untimely Ezequiel Lopez-Quintero's petition for habeas corpus seeking reinstatement of his right to file a direct appeal. Lopez-Quintero contends his petition satisfied all of the requirements under Wis. Stat. § (Rule) 809.51 (2015-16),¹ and the court of appeals erred when it presumed, without ordering a response from the State, that his nine-year delay in filing his petition caused prejudice. We hold that neither the language of Rule 809.51 nor principles of equity require a habeas petitioner to allege timeliness in the petition. We overrule State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997) (per curiam) abrogated in part by State ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900, which imposed a "prompt and speedy" pleading requirement on habeas petitioners.² We reverse the decision of the court of appeals and remand for further proceedings.

I. BACKGROUND

¶2 Christopher B. Cohen, an Illinois attorney who was also a member of the Wisconsin bar, and Frederick F. Cohn, an Illinois attorney who appeared pro hac vice, represented Lopez-Quintero. On March 7, 2008, a jury found Lopez-Quintero guilty of first-degree intentional homicide and carrying a concealed weapon.

¶3 On April 7, 2008, his attorneys filed a motion for a new trial. Two days later, the circuit court sentenced Lopez-Quintero to life in prison plus five years, without any possibility of extended supervision. During the sentencing hearing, one of Lopez-Quintero's attorneys discussed a possible appeal with the circuit court.

[DEFENSE COUNSEL]: Number one, we have filed a motion for a new trial already.

THE COURT: Yes, sir.

[DEFENSE COUNSEL]: Would that relieve us of filing the notice of intent to proceed to appeal?

THE COURT: No. I still think you have to file that.

[DEFENSE COUNSEL]: Within 20 days?

THE COURT: Right.

¶4 The circuit court gave Lopez-Quintero's attorneys the "Notice of Right to Seek Postconviction Relief" form, which the attorneys reviewed with Lopez-Quintero, who checked the box indicating "I plan to seek postconviction relief." One of Lopez-Quintero's attorneys also signed the form and certified as follows:

I have counseled the defendant about the decision to seek postconviction relief. I have informed the defendant that this decision must be made and communicated to me within 20 days of sentencing. I believe the defendant understands the right to postconviction relief and the 20 day time limit. I understand that it is my duty to file the Notice of Intent to Pursue Postconviction Relief on behalf of the defendant if that intent is timely communicated to me.

(Emphasis added.) At the conclusion of the sentencing hearing, one of Lopez-Quintero's attorneys advised he would "get that other document filed within 20 days."

¶5 During the June 10, 2008 hearing on Lopez-Quintero's motion for a new trial, his attorneys discussed Lopez-Quintero's indigence and the possibility of the circuit court appointing them as appellate counsel. The circuit court responded it would "endorse [the] appointment" but expressed it did not "have the ability to appoint you for the appeal." Despite the expiration of the 20-day deadline to file the notice of intent, Lopez-Quintero's attorneys did not request an extension to file one. On the same day, the circuit court granted Lopez-Quintero's "Petition for Waiver of Filing and Service Fees—Affidavit of Indigency and Order" and allowed Lopez-Quintero to "get transcript of trial without payment."

¶6 Lopez-Quintero's actions manifested his intent to pursue postconviction relief. However, no notice of intent was ever filed, and neither of Lopez-Quintero's attorneys requested an extension of time to file the notice of intent. Consequently, an appeal never occurred.

¶7 On February 1, 2018—nearly ten years after his conviction—Lopez-Quintero petitioned the court of appeals for a writ of habeas corpus under Wis. Stat. § (Rule) 809.51; see also State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).³ Lopez-Quintero, now represented by the Frank J. Remington Center at the University of Wisconsin Law School, alleged that his trial attorneys rendered ineffective assistance by failing to file a notice of intent within the 20-day deadline, and this deficiency caused his direct appeal rights to expire. Lopez-Quintero asked the court of appeals to "reinstate his appellate deadlines, so that he may pursue a direct appeal of his conviction and sentence." The petition alleged that Lopez-Quintero relied on his attorneys to pursue the appeal after he unequivocally indicated his intent to pursue postconviction relief by signing the Notice of Right to Seek Postconviction Relief form and checking the box indicating he intended to seek postconviction relief, but the petition omitted any reason for Lopez-Quintero's failure to file his claim for habeas relief until almost a decade after his appeal rights lapsed.

¶8 The court of appeals denied Lopez-Quintero's petition ex parte under Wis. Stat. § (Rule) 809.51(2). State ex rel. Lopez-Quintero v. Dittmann, No. 2018AP203-W, unpublished order at 1 (Wis. Ct. App. Feb. 12, 2018). It opined that "[t]he problem with Lopez-Quintero's petition is that it comes too late." Id. at 2. Citing Smalley, the court of appeals concluded that "[a]lthough Lopez-Quintero's stated limitations⁴ can account for some delay in this case, it [sic] cannot account for over nine years of delay. Accordingly, we are not persuaded that he sought habeas relief in a timely fashion and will deny the petition for that reason." Lopez-Quintero, No. 2018AP203-W, unpublished order at 2-3.

¶9 Lopez-Quintero filed a motion for reconsideration, asking the court of appeals "to reconsider its decision and refrain from denying Mr. Lopez-Quintero's legally-sufficient petition ex parte" or "[a]t the very least ... order the State to respond, and apply Coleman if the State raises the affirmative defense of laches." Under Coleman, "[t]he State has the burden of proof in regard to all the elements of its laches defense" therefore "the court of appeals erred when it assumed the State was prejudiced by Coleman's unreasonable delay." Coleman, 290 Wis. 2d 352, ¶¶ 2, 37, 714 N.W.2d 900. The court of appeals denied the motion, and Lopez-Quintero petitioned this court for review, which we granted.

II. ANALYSIS

¶10 While habeas relief may be denied under the well-established doctrine of laches if a petitioner unreasonably delays the filing of his petition, this case resolves whether the court of appeals may deny an otherwise sufficiently pled habeas petition ex parte, without a hearing or a response from the State, solely because the court of appeals deems it to be untimely. We hold that the court of appeals may not deny a habeas petition ex parte on the ground the petitioner failed to demonstrate he sought relief in a prompt and speedy manner. We overrule Smalley. Any equitable concerns regarding substantial delays, such as the near ten-year delay in the current case, are properly raised not sua sponte by the court of appeals but instead by the State asserting the defense of laches and establishing prejudice resulting from the delay.⁵

A. Standard of Review

¶11 We review the legal issues arising out of a habeas petition independently. Coleman, 290 Wis. 2d 352, ¶ 17, 714 N.W.2d 900. This case requires us to interpret Wis. Stat. § (Rule) 809.51, which presents a question of law. See State v. Ziegler, 2012 WI 73, ¶ 37, 342 Wis. 2d 256, 816 N.W.2d 238.

B. General Legal Principles

¶12 "A petition for writ of habeas corpus commences a civil proceeding wherein the petitioner claims an illegal denial of his or her liberty."

Coleman, 290 Wis. 2d 352, ¶ 18, 714 N.W.2d 900. Often referred to as the "Great Writ," habeas corpus "indisputably holds an honored position in our jurisprudence." Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Its roots spring from English common law, and "its availability is guaranteed by the U.S. Constitution, the Wisconsin Constitution, and by state and federal statute." State ex rel. Marberry v. Macht, 2003 WI 79, ¶ 22, 262 Wis. 2d 720, 665 N.W.2d 155 (quoting State ex rel. Haas v. McReynolds, 2002 WI 43, ¶ 11, 252 Wis. 2d 133, 643 N.W.2d 771 ); see also State ex rel. L'Minggio v. Gamble, 2003 WI 82, ¶ 17, 263 Wis. 2d 55, 667 N.W.2d 1 ; Wis. Stat. § 782.01(1) ("Every person restrained of personal liberty may prosecute a writ of habeas corpus to obtain relief from such restraint subject to [ Wis. Stat. §§] 782.02 and 974.06.").

¶13 The Great Writ constitutes "a bulwark against convictions that violate ‘fundamental fairness.’ " Engle, 456 U.S. at 126, 102 S.Ct. 1558 (quoted source omitted). Founded on principles of equity, habeas corpus "test[s] the right of a person to his personal liberty." Marberry, 262 Wis. 2d 720, ¶ 22, 665 N.W.2d 155 (quoted source omitted; alteration in original). "The purpose of the writ is to protect and vindicate the petitioner's right to be free from illegal restraint." Id.; see also State ex rel. Zdanczewicz v. Snyder, 131 Wis. 2d 147, 151, 388 N.W.2d 612 (1986). "Its function is...