State ex rel. Santana v. Endicott, 2005AP332.

Decision Date14 December 2005
Docket NumberNo. 2005AP332.,2005AP332.
Citation2006 WI App 13,709 N.W.2d 515
PartiesSTATE of Wisconsin ex rel. Luis SANTANA, Petitioner-Appellant, v. Jeffrey P. ENDICOTT, Warden, and Redgranite Correctional Institution, Respondents-Respondents.
CourtWisconsin Court of Appeals

On behalf of the respondents-respondents, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and James M. Freimuth, Assistant Attorney General.



In March 1996, Luis Santana was found guilty of two drug offenses. He neither perfected an appeal nor sought postconviction remedies subsequent to his convictions. Years later, his direct appeal rights having long since expired, Santana sought habeas corpus relief in the circuit court. He requested reinstatement of his right to proceed under WIS. STAT RULE 809.30 (2003-04)1 on the ground of ineffective assistance of appointed counsel. The circuit court dismissed the petition. We affirm. Although Santana may seek habeas relief on his ineffective assistance claim, he started in the wrong forum. His petition faults appointed counsel for failure to pursue an appeal. State ex rel. Smalley v. Morgan, 211 Wis.2d 795, 797-99, 565 N.W.2d 805 (Ct.App.1997), unequivocally requires defendants to raise this type of ineffective assistance claim in a Knight2 petition to this court. That said, we emphasize that the dismissal below is without prejudice and that Santana may still file a Knight petition.

¶2 Subsequent to Santana's convictions, he filed a notice of intent to seek postconviction relief, and the state public defender thereafter appointed counsel to represent him. Counsel twice sought orders of this court involving clarification or extension of time to file a notice of appeal or a postconviction motion. In granting the second motion, we noted that counsel had been contacted by an attorney in Massachusetts whom Santana's family had retained to explore the possibility of having Santana either deported to the Dominican Republic, his native country, or placed there through a prisoner exchange program. We observed that this attorney had informed appellate counsel that exchange and deportation might not be available to Santana if postconviction matters remained pending. Following this order, counsel wrote to the Department of Corrections. His correspondence stated that Santana requested deportation and would not be pursuing postconviction relief or an appeal. Counsel subsequently closed Santana's file. Thus, his involvement in Santana's case ended sometime in or around August 1997.

¶3 Nearly seven and one-half years later, on December 21, 2004, Santana petitioned the circuit court for a writ of habeas corpus. Among his claims were the following. First, he asserted that counsel improperly withdrew from representation without prosecuting an appeal or filing a no-merit report. According to Santana, this inaction violated his right to assistance of appellate counsel because nobody—trial counsel, the trial court, or appellate counsel—had informed him of his appeal options, and therefore he had never waived these rights. Santana also alleged several trial errors. He challenged the sufficiency of evidence with respect to the charge for possessing cocaine with the intent to deliver and asserted that the court had not given the proper jury instruction on that charge. Moreover, he claimed a violation of his due process rights resulted from the State's use of an informant who illegally used drugs. The circuit court dismissed Santana's petition on the ground that he had not exhausted other appeal and postconviction remedies.

¶4 On appeal, we hold that Smalley governs this case and that dismissal was proper. In Smalley, we recognized that a Knight petition in this court provided the proper vehicle for defendants to attack appointed counsel's failure to commence an appeal governed by WIS. STAT. RULE 809.30 or WIS. STAT. RULE 809.32, whether or not the appeal had to be preceded by a postconviction motion. Smalley, 211 Wis.2d at 798-99, 565 N.W.2d 805; see also State v. Evans, 2004 WI 84, ¶¶ 34 n. 12, 39 n. 14, 273 Wis.2d 192, 682 N.W.2d 784; State ex rel. Ford v. Holm, 2004 WI App 22, ¶ 9 n. 4, 269 Wis.2d 810, 676 N.W.2d 500 ("Although the allegation of ineffective assistance of counsel in this case involves the alleged actions or omissions of counsel prior to the filing of an appeal, it is nonetheless properly raised by way of a Knight petition in this court."), review denied, 2004 WI 50, 271 Wis.2d 109, 679 N.W.2d 544 (2004). Santana complains that counsel failed to file a no-merit appeal or to move for postconviction relief. RULE 809.32 governs no-merit appeals. Had counsel moved for postconviction relief, he would have done so pursuant to WIS. STAT. § 974.02, which is governed by the procedural rules in RULE 809.30. See § 974.02(1); Evans, 273 Wis.2d 192, ¶ 29, 682 N.W.2d 784 (such a motion may precede or substitute for a notice of appeal and may be a prerequisite to direct appeal depending on whether the issues argued were previously raised). Thus, Santana should have brought a Knight petition to this court.

¶5 The State, citing Smalley, 211 Wis.2d at 798-99, 565 N.W.2d 805, and Ford, 269 Wis.2d 810, ¶¶ 36-37, 676 N.W.2d 500, observes that although this court accepts habeas petitions where appellate counsel is ineffective, we often remand to the trial court for fact finding and opines that "[i]t reasonably follows ... that a trial court should be able to address a loss-of-direct-appeal claim in the first instance." We disagree with the State's suggestion that Smalley prescribes an optional procedure. First, the fact that we may often remand for fact finding says nothing about whether the circuit court is the proper forum for determining the legal issues. Second, Evans strongly indicates that a convicted defendant does not have a choice of forum for his or her habeas petition:

In Knight, this court stated unequivocally that "to bring a claim of ineffective assistance of appellate counsel, a defendant must petition the appellate court that heard the appeal for a writ of habeas corpus." Further, we expressly disavowed language from the court of appeals' decision in State v. Flores, 158 Wis.2d 636, 462 N.W.2d 899 (Ct.App. 1990), which allowed such a claim to be made via a § 974.06 motion: "Because we conclude that the defendant should pursue an ineffective assistance of appellate counsel claim by petitioning the appellate court for a writ of habeas corpus, we expressly overrule any language in Flores that might sanction a contrary procedure."

Evans, 273 Wis.2d 192, ¶ 39, 682 N.W.2d 784 (alteration in original; citations and footnote omitted). We find this language particularly telling because the court had already characterized a WIS. STAT. § 974.06 postconviction motion as "essentially the statutory substitute for a petition for writ of habeas corpus." Evans, 273 Wis.2d 192, ¶ 32, 682 N.W.2d 784. We do not see how it could be proper for a defendant to pursue habeas relief in the circuit court on an ineffective assistance of appellate counsel claim when Evans expressly precludes him or her from pursuing a procedure that the court characterized as its "statutory equivalent." See id., ¶ 34, 682 N.W.2d 784.

¶6 Although we affirm the circuit court's order dismissing Santana's petition, we emphasize that he remains free to pursue the proper procedure by filing a Knight petition in this court. The circuit court did not say whether it intended to dismiss with or without prejudice. We will construe the order as a dismissal without prejudice. First, we infer that this is the result the court intended. The order dismissed Santana's motion because he had "not taken advantage of his appellate rights or postconviction remedies available to him." Thus, it seemed to assume that other remedies remained available. Second, Santana's failure to file his petition in the right forum is a procedural defect that he can easily cure by submitting a new petition to this court. Cf. State ex rel. Schatz v. McCaughtry, 2003 WI 80, ¶ 36, 263 Wis.2d 83, 664 N.W.2d 596 ("Generally, when a dismissal for failure to state a claim does not specify whether it is with or without prejudice and the defects in the dismissed complaint can be cured by a subsequent complaint, the dismissal should not be treated as a bar to the filing of the subsequent complaint.").

¶7 Having acknowledged that Santana still has the option of a Knight petition we note that he has also brought several other claims of error. Thus, we think it appropriate to say a few words about the proper procedural mechanisms for pursuing his various claims. We underscore the nature and significance of the Knight petition as a habeas petition addressing the actions of appellate counsel before this court. See State v. Knight, 168 Wis.2d 509, 520-22, 484 N.W.2d 540 (1992). Nothing in Knight indicates that the court contemplated the use of this procedure to encompass claims of trial error that do not concern actions before this court. Thus, we cannot entertain his other claims in a Knight petition.

¶8 Santana does, however, have other procedural avenues available. First, if he succeeds on his Knight petition, we will reinstate his direct appeal rights, and he can pursue an appeal on those claims:

[I]f a defendant files a Knight petition and it is determined that his appellate counsel was deficient, his direct appeal rights may be reinstated. Thus, a defendant's right to appeal will not be extinguished; on the contrary, a Knight petition provides the appropriate vehicle to determine if counsel was deficient so that a defendant's direct appeal rights can be reinstated.

Evans, 273 Wis.2d 192, ¶ 59 n. 21, 682 N.W.2d 784. If Santana does not prevail on his Knight p...

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