Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State ex rel. Wren v. Warden

Supreme Court of Wisconsin

December 26, 2019

State of Wisconsin ex rel. Joshua M. Wren, Petitioner-Petitioner,
Reed Richardson Warden, Respondent.

          Oral Argument September 6, 2019

          Circuit Court Milwaukee County L.C. No. 2006CF2518 Carolina Stark Judge

         REVIEW of a decision of the Court of Appeals. Affirmed.

          For the petitioner-petitioner, there were briefs filed by John T. Wasielewski and Wasielewski & Erickson, Milwaukee. There was an oral argument by John T. Wasielewki.

          For the respondent-respondent, there was a brief filed by Sara Lynn Shaeffer, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Sara Lynn Shaeffer.

          HAGEDORN, J., delivered the majority opinion of the court, in which ROGGENSACK, C.J., ZIEGLER and KELLY, JJ., joined.

          BRIAN HAGEDORN, J.

         ¶1 After his conviction in 2007 for reckless homicide, Joshua M. Wren alleges his counsel failed to file a notice of intent to pursue postconviction relief as promised, causing Wren to lose his direct appeal rights. Wren knew this, however, by sometime in 2010 or 2011. Over the next several years, Wren filed four pro se motions relating to his conviction, none of which raised his counsel's alleged blunders. Then, in 2017, Wren filed a petition for a writ of habeas corpus asserting ineffective assistance of counsel for failing to appeal, and seeking to reinstate his direct appeal rights. In defense, the State pled laches, resting its case on the fact that the attorney who made the alleged missteps passed away in 2014, and no case files or notes remained. The court of appeals agreed with the State, imposed laches, and denied the petition.[1]

         ¶2 Before us, Wren asserts that our adoption of laches as an available defense to a habeas petition was ill-considered and should be reexamined. But even if laches can bar his claim, Wren maintains that the State failed to prove the elements, and that the court of appeals erroneously exercised its discretion in applying laches here.

         ¶3 We disagree. This court held just a few months ago that the State may assert laches as a defense to a habeas petition. See State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, ¶10, 387 Wis.2d 50, 928 N.W.2d 480');">928 N.W.2d 480. We decline to revisit that ruling today. On the merits, we agree with the court of appeals that the State established unreasonable delay and prejudice, the two laches elements Wren challenges. We further conclude that the court of appeals did not erroneously exercise its discretion by applying laches and barring relief.

         I. BACKGROUND

         ¶4 In early 2006, 15-year-old Joshua Wren shot and killed a man.[2] He pled guilty to first-degree reckless homicide, and in March 2007 was sentenced to 21 years of initial confinement and nine years of extended supervision-considerably more than Wren's counsel suggested and longer than was recommended in the presentence investigation report (PSI).[3]

         ¶5 On the day of sentencing, Wren's attorney, Nikola Kostich, filed the "Notice of Right to Seek Postconviction Relief"; this form contained a checked box indicating Wren was undecided about pursuing postconviction relief. No notice of intent to seek postconviction relief was ever filed.

         ¶6 During the next ten years, Wren filed and litigated four pro se motions related to his conviction.

• In 2010, he unsuccessfully moved to vacate his DNA surcharge. The circuit court denied his 2011 motion for reconsideration.
• In 2013, Wren again challenged the DNA surcharge and also sought to amend the judgment of conviction regarding his restitution obligations. The circuit court denied the DNA surcharge challenge once again, but did amend the judgment of conviction to clarify his restitution requirements.[4]
• In 2015, he sought a copy of the PSI. This motion was also denied, in part on the grounds that Wren previously had an opportunity to review the report and "the direct appeal deadline ha[d] long since expired."
• In 2016, Wren sought sentence modification, arguing that the circuit court relied on improper facts (an alleged beating by Wren of a fellow prisoner) . The motion was denied as untimely filed.

         ¶7 Finally, in 2017, more than a decade after sentencing, Wren filed a Knight petition[5] in the court of appeals seeking to reinstate his direct appeal rights on the grounds of ineffective assistance of counsel. In Wren's telling, he and his family wanted to appeal and made multiple attempts to communicate this to Kostich. Yet they heard nothing back. The petition described Kostich's disciplinary history to substantiate his non-responsiveness.[6] The long and short of it, according to Wren's petition, is that Kostich promised to appeal, did not do so, and never responded to multiple inquiries by Wren and his family. Wren insists he was left entirely without counsel in violation of his Sixth Amendment rights, and should therefore have his direct appeal rights reinstated.

         ¶8 The court of appeals remanded the matter to the circuit court for an evidentiary hearing. However, Kostich passed away in 2014, so the State had no witnesses, nor were any of Kostich's case files located. Nonetheless, the circuit court heard from Wren and three of his family members, and rendered factual findings based on the evidence presented.

         ¶9 Relevant circuit court findings include the following: Wren signed the Notice of Right to Seek Postconviction Relief six days before sentencing, he did not personally check the box indicating he was undecided about pursuing postconviction relief, and Wren was unaware which box would end up being checked. Wren contacted Kostich in a timely manner, and Kostich told Wren that he would appeal. Several of Wren's family members spoke with Kostich immediately after the original sentencing hearing, and Kostich told them an appeal would be forthcoming. After the deadline to appeal had passed, Wren wrote Kostich regarding the status of the appeal and never heard back. Wren's mother, father, and sister made similar efforts to reach Kostich before and after the appeal deadline passed, all to no avail. Kostich "intentionally led" Wren and his family to believe he was going to timely file postconviction relief, but he failed to do so and notified no one. Kostich failed to contact Wren or his family after sentencing, despite their persistent efforts.

         ¶10 In accordance with Wren's testimony, the circuit court additionally found that sometime in 2010 or 2011, Wren knew no appeal had been filed. Though he sought relief of various kinds through four other pro se motions, Wren was unaware that he could petition to reinstate his direct appeal rights. He "wanted to seek postconviction relief regarding ineffective assistance of trial counsel and the sentence, but he did not know how to do so." Wren eventually learned what to do and how to do it after communicating with an incarcerated uncle, and he filed the present habeas petition within three to four months.

         ¶11 Following the evidentiary hearing, the court of appeals entertained briefing based on the circuit court's findings. The State did not challenge the facts found as clearly erroneous, nor did it address the merits of Wren's ineffective assistance of counsel argument because it could not; the State had no evidence or witnesses to present regarding what happened and why. Rather, it raised the defense of laches, essentially arguing that its hands were tied due to Wren's delay and his former counsel's intervening death. The court of appeals concluded that the State proved the requisite legal elements of laches, and exercising its own discretion, determined it was equitable to apply laches in this case. We granted Wren's petition for review.


         ¶12 Wren raises three arguments against the application of laches to his case.[7] First, he contends the doctrine of laches should not apply to habeas petitions at all. Second, he asserts the State failed to prove two of the three elements of laches- unreasonable delay and prejudice. Finally, Wren maintains the court of appeals erroneously exercised its discretion in choosing to apply laches to his petition.

         A. Laches Is a Defense to a Habeas Petition

         ¶13 Wren begins with a request that we reexamine our adoption of the laches defense to habeas petitions. His principal argument is that we incorporated laches into our habeas corpus jurisprudence somewhat thoughtlessly in two court of appeals opinions.[8] Whatever merit those criticisms may have, however, we had occasion to directly answer this question last term. In Lopez-Quintero, we made clear that the State may raise laches as an affirmative defense to a habeas petition. 387 Wis.2d 50, ¶16. Moreover, Wren did not raise and brief this issue below, nor was it presented in Wren's petition for review. Having just considered the matter, we decline Wren's invitation to reconsider it.

         B. Laches Was Properly Applied to Wren's Habeas Petition

         ¶14 "Laches is founded on the notion that equity aids the vigilant, and not those who sleep on their rights to the detriment of the opposing party . . . ." 27A Am. Jur. 2d Equity § 108.[9] It is, at root, an equitable defense to an equitable claim.[10] Though different jurisdictions structure the analytical framework somewhat differently, the doctrine is consistent in concept: did a party delay without good reason in asserting its rights, and did the delay prejudice the party seeking to defend that claim.

         ¶15 In Wisconsin, application of laches to habeas petitions proceeds in two steps. First, the party asserting the defense-the State in this instance-must prove the following three elements: "(1) unreasonable delay in filing the habeas petition, (2) lack of knowledge on the part of the State that the petitioner would be asserting the habeas claim, and (3) prejudice to the State." Lopez-Quint ero, 387 Wis.2d 50, ¶16. Second, even if the State proves all three elements, the court may-in its discretion-choose not to apply laches if it determines that application of the defense is not appropriate and equitable. See State ex rel. Washington v. State, 2012 WI.App. 74, ¶26, 343 Wis.2d 434, 819 N.W.2d 305.

         ¶16 Whether the State proved all three elements under step one is a legal question we review de novo. State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶17, 290 Wis.2d 352, 714 N.W.2d 900. Assuming step one is satisfied, we review the decision to apply laches under step two for an erroneous exercise of discretion. Id.

         ¶17 Wren asserts that the State failed to prove two of the three elements-unreasonable delay and prejudice.[11] And even if the State did meet its burden, Wren maintains the court of appeals erroneously chose to apply laches in his case.

         1. The State Proved Unreasonable Delay

         ¶18 Whether a delay is reasonable is case specific; we look at the totality of circumstances. State ex rel. McMillian v. Dickey, 132 Wis.2d 266, 281, 392 N.W.2d 453');">392 N.W.2d 453 (Ct. App. 1986) ("What is reasonable varies from case to case and involves the totality of the circumstances."), abrogated on other grounds by Coleman, 290 Wis.2d 352; see also 27A Am. Jur. 2d Equity § 131 ("Whether a party's delay is unreasonable depends on the circumstances of the particular case.").

         ¶19 In rendering its conclusion, the court of appeals zeroed in on two factual findings. First, Wren was aware no appeal had been filed by 2010 or 2011. And during the intervening time period, he filed four separate pro se motions, none of which raised the issue presented in this habeas petition. The court of appeals held that the six-year delay from the time he knew no appeal had been filed-a full ten years after the deadline to seek postconviction relief-was unreasonably long.

         ¶20 As an initial matter, unreasonable delay in laches is based not on what litigants know, but what they might have known with the exercise of reasonable diligence. This underlying constructive knowledge requirement arises from the general rule that "ignorance of one's legal rights is not a reasonable excuse in a laches case." 27A Am. Jur. 2d Equity § 138.[12] "Where the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known by him were such as to put a man of ordinary prudence upon inquiry." Melms v. Pabst Brewing Co., 93 Wis. 153, 174, 66 N.W. 518 (1896) (citations omitted) . To be sure, what we expect will vary from case to case and litigant to litigant. But the expectation of reasonable diligence is firm nonetheless.[13]

         ¶21 Thus, the question is when Wren either knew or should have known he had a potential claim. We agree with the court of appeals that the delay clock started running no later than 2010 or 2011 when Wren, by his own admission, learned no appeal had been filed and had long since heard nothing from his attorney. After obtaining this knowledge, Wren researched and leveraged his available resources to craft four separate pro se motions relating to his conviction and sentence-none even hinting at the claims raised before us.[14] After four attempts to seek various kinds of other postconviction relief, we agree with the court of appeals that a habeas petition coming ten years after his conviction and six years after he knew his attorney didn't file the appeal he was allegedly promised is a delay without good reason.

         ¶22 Wren raises two principal objections in response. First, he didn't know he could make such a claim and didn't know how to do so; and when he did discover this possible claim, he timely brought it within three to four months. Second, Wren proffers that any delay is actually the State's fault, and that's why he was supposed to have counsel in the first place.

         ¶23 Wren's first objection, echoed by the dissent, is really an effort to except Wren from the constructive knowledge requirement we apply to all other litigants. The not-so-silent argument being made is that Wren is less capable than others and should be held to a lower standard. However, we regularly require legally untrained litigants to assert their rights in a timely manner.[15] Nothing prevented Wren from contacting another attorney. Nothing prevented Wren from researching available options to ensure he took advantage of every possible legal argument he could make. It surely cannot be that 20-year-olds (Wren's approximate age when he found out no appeal was forthcoming) are deemed incompetent. And while the PSI noted Wren had a second grade reading level at the time of sentencing, that detail alone does not mean he cannot research, consult others, and find out what needs to be done. In fact, Wren did just this when he filed four pro se motions regarding other matters prior to filing his habeas petition. This reflects someone who is more than capable of being resourceful.[16]

         ¶24 Wren's paramount objection seems to be that as a pro se litigant whose postconviction attorney abandoned him, any delay is the State's fault, not his. Incorrect. As we explain below, we have long required pro se litigants, just like those with an attorney, to act reasonably in defense of their rights.

         ¶25 Pro se litigants are generally granted "a degree of leeway" in recognition of the fact that they are ordinarily unfamiliar with the procedural rules and substantive law that might govern their appeal. Rutherford v. LIRC, 2008 WI.App. 66, ¶27, 309 Wis.2d 498, 752 N.W.2d 897. But by definition, "a degree of leeway" means the additional leniency will run out at some point. Thus, for example, while we construe pro se petitions, motions, and briefs to make the most intelligible argument we can discern, we do not impute to pro se litigants the best argument they could have, but did not, make.[17] And while pro se litigants are given leeway in the style of a motion, we ordinarily hold them to strict deadlines, whether they know about them or not.[18] In other words, we generally do not hold pro se litigants only to deadlines or arguments that they know; we hold them to deadlines and arguments we expect them to discover with reasonable diligence. This means that once Wren no longer had a lawyer representing him, he was not free to do nothing to address the claims he raised in his habeas petition. Rather, he had an independent obligation to act-the same standard we apply to all pro se litigants.

         ¶26 The postconviction relief process is instructive on this point. Following a direct appeal, defendants seeking to attack their criminal convictions may do so through a motion under Wis.Stat. § 974.06 (2017-18).[19] But this form of relief comes with a significant restriction. Under subsection (4), unless a "sufficient reason" is given, any legal issues that could have been raised in a prior motion may not be brought in a subsequent § 974.06 motion. § 974.06(4). And in 1994, this court made clear that if the issue could have been raised on direct appeal, the litigant has lost the opportunity to bring it under § 974.06. State v. Escalona-Naranjo, 185 Wis.2d 168, 173, 517 N.W.2d 157');">517 N.W.2d 157 (1994) .[20]

         ¶27 The vast majority of motions under Wis.Stat. § 974.06 are filed by pro se litigants.[21] The statute's strictures are not ignored or relaxed for pro se litigants; we apply the same rules to everyone. This means that even a potentially meritorious constitutional claim on a petitioner's third § 974.06 motion-a claim for ineffective assistance of counsel, for example-is a nonstarter if it could have been brought on direct appeal or in the prior § 974.06 motions.[22] These pro se litigants, no less than Wren here, are almost uniformly untrained in the law. Yet we expect them to exercise reasonable diligence to learn all potentially meritorious claims and to raise them in their first § 974.06 motion. If they don't, the claim is procedurally barred, whatever its merits may be.[23]

         ¶28 Wren appears to believe-as does the dissent-that ineffective assistance of counsel is an exception to these principles. Yet no authority to this effect is cited, nor are we aware of any. Without question, if Wren told Kostich to file an appeal and Kostich failed to do so, that failure would establish constitutionally deficient performance, and prejudice is presumed. See Garza v. Idaho, 139 S.Ct. 738, 744 (2019) ("[P]rejudice is presumed 'when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.'" (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000))). The law is clear that Wren is not liable for the faults of his constitutionally deficient counsel. See Coleman v. Thompson, 501 U.S. 722, 754 (1991) .

         ¶29 But Wren and the dissent take this proposition far afield from its more modest foundations. They argue that when a defendant alleges he has been denied his Sixth Amendment right to effective assistance of counsel, any subsequent delay must be attributed to the State due to its failure to provide adequate counsel in the first instance. Or said another way, if his counsel failed, Wren is relieved of any further obligation to assert his own rights. Or maybe more charitably, because he didn't know what actions to take, Wren was absolved from taking any action at all.[24] There are two problems with this line of argument.

         ¶30 First, it assumes Wren's Sixth Amendment right to counsel was denied. But that is the very claim Wren wishes to maintain if this habeas petition is successful. One cannot assume his ultimate claim will be ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.