State of Wisconsin ex rel. Ezequiel Lopez-Quintero, Petitioner,
Michael A. Dittmann, Respondent.
ARGUMENT: October 12, 2018
Circuit Court Kenosha County L.C. No. 2007CF535 David P. Wilk
of a decision of the Court of Appeals. Reversed and remanded.
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.
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.
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.
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),  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');">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');">714 N.W.2d 900, which imposed a "prompt and speedy"
pleading requirement on habeas petitioners. We reverse the
decision of the court of appeals and remand for further
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.
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.
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
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."
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.
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). 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.
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
limitations 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.
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. The court of appeals denied the motion, and
Lopez-Quintero petitioned this court for review, which we
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
Standard of Review
We review the legal issues arising out of a habeas petition
independently. Coleman, 290 Wis.2d 352, ¶17.
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
General Legal Principles
"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. 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 (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');">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
The Great Writ constitutes "a bulwark against
convictions that violate 'fundamental
fairness.'" Engle, 456 U.S. at 126 (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
(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 to provide a prompt and
effective judicial remedy to those who are illegally
restrained of their personal liberty." State ex rel.
Wohlfahrt v. Bodette, 95 Wis.2d 130, 133, 289 N.W.2d 366');">289 N.W.2d 366
(Ct. App. 1980).
However, "[t]he extraordinary relief provided by the
writ of habeas corpus is available only in limited
circumstances," and the writ "does not issue as a
right." Marberry, 262 Wis.2d 720,
¶¶23, 25 (quoted source omitted) . A party seeking
habeas relief must be restrained of his liberty and
"show that the restraint was imposed by a body without
jurisdiction or that the restraint was imposed contrary to
constitutional protections." Haas, 252 Wis.2d
133, ¶12. Additionally, the party "must show that
there was no other adequate remedy available in the
law." Id.; see also Waley v. Johnston,
316 U.S. 101, 105 (1942) (extending the use of the writ
"to those exceptional cases where the conviction has
been in disregard of the constitutional rights of the
accused, and where the writ is the only effective means of
preserving his rights.").
We have long and consistently held that the extraordinary
writ of habeas corpus is not available to a petitioner when
the petitioner has other adequate remedies available. For
instance, habeas corpus is not available to challenge a
bindover decision by a court commissioner because the
decision is challengeable on a statutory motion to dismiss.
Similarly, the writ is not available to challenge the
sufficiency of probable cause to issue a criminal complaint,
even when the challenge is brought between arrest and the
preliminary hearing, because the challenge can be made using
other remedies at trial. Habeas corpus proceedings are
likewise not available to challenge an administrative order
revoking probation, since a writ of certiorari is available,
and is the proper remedy under such circumstances. In short,
if the petitioner has an otherwise adequate remedy that he or
she may exercise to obtain the same relief, the writ will not
Marberry, 262 Wis.2d 720, ¶25 (quoting
Haas, 252 Wis.2d 133, ¶14) . Ultimately,
"the burden is on the petitioner ... to demonstrate by a
preponderance of the evidence that his detention is
illegal." State ex rel. Hager v. Marten, 226
Wis.2d 687, 694, 594 N.W.2d 791 (1999).
A habeas petition filed in the court of appeals under
Wis.Stat. § (Rule) 809.51(1) "must contain a
statement of the legal issues and a sufficient statement of
facts that bear on those legal issues, which if found to be
true, would entitle the petitioner to relief."
Coleman, 290 Wis.2d 352, ¶18. The statute
(1) A person may request the court to exercise its
supervisory jurisdiction or its original jurisdiction to
issue a prerogative writ over a court and the presiding
judge, or other person or body, by filing a petition and
supporting memorandum. . . . The petition shall contain:
(a) A statement of the issues presented by the controversy;
(b) A statement of the facts necessary to an understanding of
(c) The relief sought; and
(d) The reasons why the court should take jurisdiction.
Rule 809.51(1). Subsection (2) provides the "court
may deny the petition ex parte or may order the respondents
to file a response with a supporting memorandum, if any, and
may order oral argument on the merits of the petition."
As the respondent, the State may assert equitable defenses
such as laches in opposing a habeas petition. "Laches is
an equitable defense to an action based on the
plaintiff's unreasonable delay in bringing suit under
circumstances in which such delay is prejudicial to the
defendant." Sawyer v. Midelfort, 227 Wis.2d
124, 159, 595 N.W.2d 423');">595 N.W.2d 423 (1999) . The application of laches
to bar habeas petitions is well-established. See
Coleman, 290 Wis.2d 352, ¶¶2, 19-25. Although
our courts have described the elements of laches in various
ways, we concluded in Coleman that the three-element
test described in some of our cases "provides the better
analytic framework for assessing a laches defense."
Id., ¶29. Under Coleman, the elements
of the defense of laches are: (1) unreasonable delay in
filing the habeas petition, (2) lack of knowledge on the part
of the State that the ...