State of Wisconsin ex rel. Joshua M. Wren, Petitioner-Petitioner,
Reed Richardson Warden, Respondent.
Argument September 6, 2019
Circuit Court Milwaukee County L.C. No. 2006CF2518 Carolina
of a decision of the Court of Appeals. Affirmed.
the petitioner-petitioner, there were briefs filed by John T.
Wasielewski and Wasielewski & Erickson, Milwaukee. There
was an oral argument by John T. Wasielewki.
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.
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
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.
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
In early 2006, 15-year-old Joshua Wren shot and killed a
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).
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.
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
• 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
• 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.
Finally, in 2017, more than a decade after sentencing, Wren
filed a Knight petition 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. 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
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.
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
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.
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.
Wren raises three arguments against the application of laches
to his case. 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.
Laches Is a Defense to a Habeas Petition
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. 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.
Laches Was Properly Applied to Wren's Habeas Petition
"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. It is, at root, an equitable
defense to an equitable claim. 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.
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.
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.
Wren asserts that the State failed to prove two of the three
elements-unreasonable delay and prejudice. And even if
the State did meet its burden, Wren maintains the court of
appeals erroneously chose to apply laches in his case.
State Proved Unreasonable Delay
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.").
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.
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. "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
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. 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.
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.
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. 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
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
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. 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. 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.
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). 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) .
The vast majority of motions under Wis.Stat. § 974.06
are filed by pro se litigants. 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. 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
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) .
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. There are two problems with this line of
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 ...