State Ex Rel. Coleman v. McCaughtry

Wisconsin rel. Marvin Coleman, State ex

Petitioner-Petitioner,† v. Gary Waupun R. McCaughtry, Warden, Correc tional Institution and J. Frank, Matthew Secre tary, Department Respondents. of Corrections,

Supreme Court No. Oral argument 2004AP548-W. October May Decided 2006 WI 49 (Also 900.) reported in 714 N.W.2d † denied; Motion for reconsideration opinion modified. See 2006 WI 121. by there were briefs

For petitioner-petitioner Milwaukee, Hart, LLP, Kohler & Brian Kinstler and Brian Kinstler. argument by and oral the cause was Will- argued For the respondents Gansner, with whom attorney general, iam L. assistant attorney A. Peggy Lautenschlager, on the brief was general. ROGGENSACK, J. This 1. PATIENCE DRAKE of Marvin us review the denial requires

case of which corpus, for writ habeas Coleman's petition 355 alleged appellate ineffective assistance of counsel. The by State asserted that his claim was barred laches and appeals agreed, dismissing peti- the court of Coleman's tion. proof regard

¶ 2. The State of has burden all the of elements its laches defense. With that in mind and us, based the record before affirm we appeals proved of conclusion the court of that the State unreasonably delayed filing petition that Coleman corpus for of writ habeas as a matter law. However, reviewing factual record insufficient for court to prejudice.1 decide whether State suffered There- appeals fore, we reverse remand to the court fact-finding to determine whether the State has been prejudiced by delay. Coleman's unreasonable The court appeals appropriate shall select a method for fact- finding, through special either the use of a master or remand the circuit court.2

I. BACKGROUND February peti 19, 3. On 2004, Coleman filed a corpus appeals tion for writ of habeas in the court Knight, under State v. 2d 168 Wis. 484 N.W.2d540 (1992), asserting appointed appellate that counsel only The State claims that the information it had about appeal Coleman's came from his that attached three letters appellate between Coleman and counsel. Coleman has not argued knowledge State had that he would assert an ineffective claim, assistance of counsel so we conclude that element laches is at not issue in this review. jurisdiction The court of is without to make findings. factual Fleischman, n.3, Wurtz v. 97 Wis. 2d (1980). 293 N.W.2d 155 constitutionally he failed to ineffective because was pursue County appeal Rock from Coleman's 1986 convictions.

¶ Coleman's 4. The criminal case that underlies can be as follows: for habeas outlined charged nine criminal He with counts. Coleman was suppress in a search of Vanessa evidence found moved supported Henning's that residence on Sunshine Street suppres- charged Henning at the offenses. testified hearing because sion that she consented to search they her had no choice after officers told she believed she her her if she did not them to search would arrest allow Henning's grandmother, present of the at the time home. police search, to the same effect. Two Beloit testified Henning had been threat- testified that not detectives day They after also testified that on the ened with arrest. police Henning's house, she contacted the search of report clothing and a she had found additional box that belonged containing to Coleman. She asked bullets that get them. One of the officers an officer come and that on he resided Nelson Avenue also that Coleman said said uncle, he did not refer to his aunt and and that with Henning's house as his residence. He that he had also said 5. Coleman testified. living house; he had at that

been the Sunshine Street years; Henning's partner that lived with been six previous residence; her in and that he was her emphasized her The State father of children. Henning's stayed house continu- had not at up; Henning ously; had and broken that Coleman Henning house; and had Coleman out ordered belongings in the were basement that Coleman's plastic bags at the time of the search. "clear The circuit court found that there was positive not a resident evidence" that Coleman was Henning's house date the search. Without

reaching Henning's the issue of whether consent to voluntary, search was the circuit court concluded that standing challenge not did have the search suppress. pled and denied his motion Coleman then guilty to counts, all which assault, included sexual robbery, battery. armed theft, and He was sentenced to years eighty imprisonment. appointed postconviction

¶ 7. Coleman was and appellate plea, counsel after his an and filed unsuc- January cessful motion for sentence modification in According appellate Coleman, counsel ad- obtaining vised him that there was no chance relief appeal; appeal. on therefore, he took no direct

¶ 8. The record before us includes three written appellate communications between counsel and Cole- year man over the course almost a that relate to the appeal. They provide complete decision not to a less than picture happened regarding of what this For decision. example, on 1, 1987, June counsel wrote to Coleman at the Columbia Correctional He Institution. said:

I simply write agreement to confirm the we reached May 29, on

I I you you told that thought had no chance of obtaining any relief on You appeal. accepted my view and you indicated that did not to pursue appeal. want May 9. On 1988, Coleman wrote back to appellate counsel: writing

I'm requesting my transcripts I may so that necessary research, you do the that fail do [sic] to for an appeal or post-conviction. my Please do not ap- close peal, if [a] deadline has not [sic]. accured gathering greater knowledge of law and ect. By me do you your I not out to come to know were [sic] my appeal or helping me do the research for job, in relief. post-conviction you your ability,

I best of its why know didn't do the your not the one who has to sit [sic] because [sic] No!, everyday. me [sic] these bars each and its behind my nothing life if remain here the rest that will done about it. counsel wrote back to Coleman 10. Appellate 23,1988, reports and enclosed copies police

May He stated: transcripts. I your you say failed to

In letter do necessary appeal post-conviction for an or research your disagree I to with that. I did relief in case. have way a to in an effort to find obtain substantial research ruling your suppression on a of the trial court's reversal way you find permit a to to withdraw motion or to May Judge Dahlberg on guilty pleas you entered before 28,1986. possible different avenues You and I discussed 29, 16, May January again 1987 and on of relief on agreed me that there was you 1987. At that time with pursue to one. We appeal for an and told me not hope no Dahlberg modify your sen- Judge had tried to have tence. He denied that motion. denied effective argues Coleman was attorney because his counsel appellate

assistance regarding Amendment issue failed to Fourth appeal argues the search. He consented to Henning whether Johnson, 153 to State v. 2d. Wis. that, pursuant (1990) Wash- Strickland v. (citing N.W.2d from (1984)), he is entitled to relief ington, 466 U.S. because a reason- performance counsel's deficient his consent, the issue attorney would have pursued able probability and that there ais reasonable that but for performance, pre- counsel's deficient he would have appeal. on vailed Supreme

¶ 12. Coleman also claims United States precedent Court has one established that need not be premises standing challenge resident of the to have to long search, so as the individual has a reasonable expectation privacy premises in the searched, which he claims to have had. noting

¶ 13. While that Coleman does not assert postconviction pursue that he instructed counsel to an appeal, the State focuses, not merits ineffective assistance claim, of counsel rather, but on the merits its laches to defense for habeas. acknowledges The State that the available information pursue appeal about the decision to not an does not particularity process by reveal with which counsel reached the conclusion the Fourth Amend- ment issue was without merit. It also does not address prior the conversations counsel had with Coleman to reaching appeal. Coleman's the final not decision emphasizes ¶ 14. The State that the record shows any Coleman failed to take action between 1987 and only supports part 2004 and that his failure not of the position defense, laches but also reinforces the State's agreed pursue appeal. that Coleman not requested appeal does not assert that he counsel ignored request. counsel Counsel did file a motion postconviction regard sentencing, relief to but that was unsuccessful.

¶ suggested The State notes that it to the appeals directing appel- court of that the court consider respond petition late to counsel to the for habeas in regard ability to his to recall or reconstruct the circum- surrounding representation stances of Coleman. appeals Instead, it to do so. chose not The court of delay petitioning for ha- that Coleman's concluded preju- that the State was and beas was unreasonable delay. conclusions, the court From those diced proved its laches de- the State had determined hearing evidentiary precluded on the This fense. petition. It the court of Coleman's habeas merits appeals' now on laches that we review. decision

II. DISCUSSION right a A criminal defendant has convicted postconvic postconviction a relief that includes both (2003-04),3 § a under Stat. 974.02 tion motion Wis. appeal, pursuant Constitution, to Wisconsin direct 21(1) § § time I, 809.30. Once the Article and Wis. Stat. appeal passed, ain criminal has a defendant for direct pursuant may collaterally attack his conviction case § State, motion, Peterson v. 54 Wis. Stat. 974.06 Wis. (1972), 370, 381, 195 or via 2d N.W.2d Knight, corpus. 2d at 522. 168 Wis. writ of habeas properly form which has chosen the last under claim is convictions because his relief from his seek ap allegation of ineffective assistance on an based pellate Id. counsel. of Review

A. Standard court of determine whether the must 17. We unrea- was erred when it concluded proven presumed the State had sonable and Statutes are to to the Wisconsin All references subsequent otherwise noted. the 2003-04 version unless prejudice indepen element of its laches defense. We dently "legal arising review the issues context of a petition corpus." Marberry for habeas State rel. ex v. Macht, ¶79, 8, 2003 720, WI 262 Wis. 2d 665 N.W.2d Hager 155; Marten, see also State rel. ex v. 226 Wis. 2d (1999). question 687, 694, 594 N.W.2d 791 The applied petition requires whether laches to Coleman's a determination of the reasonableness of the bringing court; the issue before the a determination that knowledge the State did not have that Coleman would be bringing claim; this and a determination whether the prejudice delay. State suffered due State Pri v. hoda, 123, 37, 2000 WI 239 Wis. 2d 618 N.W.2d question upon 857. is a Reasonableness of law based findings. Viney, factual See Lohr v. 174 2dWis. (Ct. 1993). App. 477-78, 497 N.W.2d730 When the facts independently known, are question we review reasonableness as a Dickey, of law. State ex rel. McMillian v. (Ct. 1986). App. 266, 277, Wis. 2d 392 N.W.2d 453 Prejudice legal also conclusion based on the facts surrounding underlying petition. the issues Lohr, See proved, 174 Wis. 2d at 477. If the defense of laches is apply petition whether to laches and dismiss the habeas appeals. is left to the discretion of the court of See id. at B. Laches principles

1. General petition corpus A writ habeas com proceeding petitioner mences a civil wherein claims illegal liberty. denial of his or her State ex rel. Snyder, Zdanczewicz v. 147, 151, Wis. 2d 388 N.W.2d (1986). A habeas must contain a statement legal statement of facts sufficient issues legal issues, if found to on which he that bear those petitioner to relief. Wis. Stat. true, would entitle the 809.51(1); Smalley Morgan, § 211 2d ex rel. v. Wis. State (Ct. 1997). App. 805 Habeas 795, 802, 565 N.W.2d only petitioner corpus relief is when the available by right being of a constitutional or held in violation jurisdiction, only case, and in either tribunal that lacks adequate provide remedy at when no other law is Marberry, ¶ 720, 2. is an 262 2d Habeas relief. equitable Wis.

remedy, Baldi, States rel. Smith v. United ex (1953), is no constitutional 344 561 for which there U.S. right ¶ Evans, 32, counsel, 84, v. 2004 WI 273 State 784. Wis. 2d 682 N.W.2d

2. Laches tests

¶ have used various tests for courts Wisconsin why they explaining or their differences laches without com- that were chosen. The most have used the tests monly elements, the elements test has three but used consistently example, always For in Lohr are not stated. (2) (1) delay, they lack of are unreasonable stated as: acquiescence knowledge in the course of events of and (3) prejudice party asserting to the and laches proponent Lohr, at 477. The of the defense. 174 Wis. 2d inaction of the in attributed to the first element Lohr is applied are and the second and third elements claimant asserting person Id. laches as a defense. to the Wegner, 2d 254 78 In v. Wis. Schafer (1977), the same three elements 193 we stated N.W.2d (2) "(1) knowledge delay, on the lack of as, unreasonable asserting part party other that the of the defense right party suit, on bases would assert which (3) asserting party prejudice the defense to the Id. the event the action is maintained." at (citing Bank, Schneider Fuel & v. Supply Co. West Allis State (1975)). 1041, 1053, 70 Wis. 2d 236 N.W.2d 266 More recently we this same applied three-element analysis Sawyer Midelfort, v. 124, 159, 227 Wis. 2d 595 N.W.2d (1999). case, In each the first element is attributed to inaction of the claimant and the second and third elements to party who raised a laches defense. 21. Wisconsin courts have also used a four- element test requires: "an unreasonable occur, must must know the plaintiff facts and take no action, the defendant must not plaintiff know the would right assert the based, which suit is and prejudice to the defendant must occur." Riegleman v. Krieg, 85, 22, 798, WI 271 2d App Wis. 679 ¶ N.W.2d 857 (citing Policemen's & Annuity Fund Milwaukee v. City Benefit Milwaukee, 144, 20, 2001 246 AppWI 196, Wis. 2d ¶ 236). 630 N.W.2d Riegleman, In the court applied the four-element test determine whether a chiropractor's action to collect for services was The precluded. second element set out in Riegleman, whether the claimant knew the facts that rise to his claim gave and took yet no action, has been subsumed into the analysis of whether the in delay bringing the claim was "unreasonable." Sawyer, 227 at Wis. 2d 160 (concluding that a delay cannot be "unreasonable" had, until the claimant or had, should have knowledge that a defendant's acts were injuries). cause of claimant's 22. Another frequently used laches ¶ test has only (1) two elements: by unreasonable delay the claimant (2) prejudice to the party raising de- laches Evans, fense.4 273 192, 2dWis. ¶ 4 There have been occasions when this two-element test has preface element, to the first that the claimant has a cause of Neylan Vorwald, 121 2d in v. Wis. In (Ct. 1984), appeals App. the court of 481, 360 N.W.2d prejudice" regard concept in of "actual introduced Neylan laches test. of a two-element the second element Neylan's the dismissal of a motion to set aside involved year one earlier claim, had been entered dismissal which Laches raised Vorwald. notice. Id. at 485. was without introducing concept prejudice," the court "actual In delays prejudice" in to short tied "actual "Prejudice bringing to defendants claims. Id. at 491. may presumed delay resulting ... from unreasonable be delay excusable, is more moderate or in cases where but proportionally prejudice show actual is the need to Corp. (citing Lyell greater v. 491 n.5 Theatre . ..." Id. at (2d 1982)). Corp., 682 F.2d Cir. Loews prejudice concept time the of actual 24. The next appears used in McMillian v. is in the two-element test Dickey, for habeas raised to a where laches was (5th Citing corpus. Estelle, Cir. P.2d 1030 "[T]he Baxter v. 1980), appeals said, state must court of prejudice from actual that it must suffer demonstrate grounds upon ability respond to the its sought." McMillian, 2d at 281 132 Wis. which habeas n.2). (citing However, Baxter, 614 F.2d at 1032-33 & n.14 from the federal habeas that differs Baxter involved lie,5 will and Baxter state habeas circumstances which although prejudice," it "actual not use the term does & Loan Ass'n See Mut. Fed. Sav. against action defendant. (1973) Works, 99, 111, 2d 205 N.W.2d 762 v. Wis. Wire 58 Wis. McDonald, 371, 2d 192 N.W.2d 903 McDonald v. (citing 53 Wis. (1972)). against longer a "cause of action We no list cause of action must be an because a defendant" as element laches is raised. present, to that cause of action as it is 5 habeas a state that Wisconsin's rules when We note federal applicable those to may more liberal than be filed are 1996, is available to corpus federal habeas since habeas because

365 prejudice Baxter, does conclude that was shown. 614 F.2d at 1032-33. Smalley, again

¶ 25. In in the context of a habeas petition, appeals employed of the court a two-element requires prejudice" by test that that "actual be shown petition. Smalley, state when it raises laches ato habeas (citing McMillian, 211 Wis. 2d at 800 132 Wis. 2d at 281 n.14). Smalley While refers laches and uses laches terminology, appears analysis it to have conflated its petition's timeliness6 habeas with the unreasonable delay peti- element of laches. Both laches and habeas equitable they tions seek relief, and have some similar principles. example, equitable For remedies are not available to one whose own inaction results in the Christophersen, harm. See State Bank Drummond v. (1980) (reviewing 93 Wis. 2d 148, 160, 286 N.W.2d547 modification). appeal judgment an of a foreclosure analysis Smalley's delay prefaced While the was with explanation principles,7 Smalley an of laches deci- actually application prin- sion rests on the of habeas prisoner only state for year one after the state conviction final, becomes if the time is not tolled proceedings collateral 2244(d)(1) (2000). (2) in state 28 § court. U.S.C. argued The State has not that Coleman's habeas petition untimely was under the principles that we have set evalu ating Therefore, habeas petitions. we do not address whether proof Coleman has met his burden of regard. 7 The explained: court equitable doctrine, corpus As subject habeas to the doctrine delay petitioner's part laches. Where the on the was unreason- prejudice able and the State suffers actual from the in its ability respond petition, grounds dismissal on the may laches be warranted. Smalley Morgan, State ex rel. v. 2dWis. (Ct. 1997) (citations omitted). N.W.2d 805 App. Smalley by explaining concluded For example,

tiples.8 insufficiency by claim was Smalley's precluded for the The foundation itself.9 the habeas petition of when the Smalley readily apparent becomes decision for timeliness of proof burden of places decision reviewing is in accord with Smalley, which petition Smalley, 211 a petition.10 to habeas regard timeliness at n.7. 2d 802 Wis. Evans, laches was not raised as In where re- a Knight petition11 defense, but where

affirmative 8 petition: Smalley's on to then went review The court prompt corpus provide and purpose The of habeas "is remedy illegally judicial are restrained of to those who effective liberty." allege Smalley's facts personal does not their demonstrating sought prompt speedy relief. Such that he showing required. (citations omitted). at Id. 802

9 following: language includes the The relevant rejection Smalley's peti- whether our We have considered untimely that it does of Flores .... We conclude as runs afoul tion Smalley's request be for habeas relief must evaluated not because applicable to such relief. under the standards omitted). (citations Id.

10 all the elements contrast, proof By the burden asserting the party rests on the affirmative defense a laches 124, 159, 595 Midelfort, 227 Wis. 2d Sawyer v. See defense. (1999). as an However, Smalley if read were 423 N.W.2d it be misunder petition, could laches a habeas application of against is asserted holding whom laches party that a as stood reasonable. that the was proving has the burden ineffective bring an vehicle to proper procedural The petition pursu is a habeas claim appellate counsel assistance of 509, 522, 484 N.W.2d Knight, 2d v. Wis. ant to State (1992). possibility, mained a we discussed a two-element test appeared adopt for laches and the court prejudice" statement that the state must show "actual when it raises laches as affirmative defense to a petition. Evans, ¶ habeas 273 Wis. 2d 49. ¶ 27. However, Prihoda, in which addressed Prihoda's motion to vacate clerical correction in sentencing, Prihoda raised laches to the clerical correc- Prihoda, ¶ tion. ployed 239 Wis. 2d There, 35. we em- analysis require

a three-element that did not prejudice." Prihoda Instead, to show "actual we said (1) prove: delay by that Prihoda must unreasonable (2) knowledge state; the his lack of that the state would make a clerical correction in his sentence; and that (3) prejudice delay. Id., ¶ he suffered due to the Sawyer, Prihoda, Lohr and all em- Schafer ploy a three-element test where the first element is delay bringing unreasonable in the claim and the other apply party asserting two elements to the laches: lack (that knowledge brought) the claim would be and (prejudice). Neylan, Smalley McMillian, effect In Evans, the element first is the same, unreasonable delay, analy- but the second element of the two-element prejudice." delay sis is set out as "actual the When is not knowledge extensive, the lack of movant's that brought important assessing preju- claim would be in Neylan, dice. 121 Wis. 2d at otherwise, 491 n.5. Stated prejudice concept party actual includes the raising knowledge laches did not have that the claim brought prejudice would be and that he suffered be- bringing cause the claim. may quantify 29. Because it be difficult to "ac- prejudice,"

tual we conclude that the three-element analysis Sawyer provides and Prihoda the better analytic assessing framework for a laches defense than analysis McMillian, out in set does the two-element Carefully applied Smalley facts, and Evans. raising party assessing laches did not have whether permit brought knowledge be will that the claim would fully apprise effect of a to more the circuit court unreasonably delayed. example, For been claim that has bring knowledge that Coleman would if the had State destroyed appellate counsel, but claim of ineffective possessed that relevant to it were all the records that might defending prejudiced claim, the State be against it fail on its claim, but would nevertheless laches defense. Application of laches defense appeals of that Cole- The court concluded unreasonably delayed bringing in claim his before

man alleged ineffective assistance the court because Coleman did not seek 1987 and counsel occurred years The court 2004, until later. relief pointed out that: postconviction Coleman and

Correspondence between Coleman aware of May 1988 shows that was counsel issue, with was dissatisfied potential suppression do to to his own appeal, decision not intended counsel's necessary matter, and possessed into the research After to conduct that research. transcripts and records letters, however, exchange apparently that nothing. any request is no did There record counsel, allegation nor that Coleman court-appointed legal or free assistance else- sought pro bono counsel why he made no explain where. Nor does Coleman counsel, although he is attempt pursue relief without law literate, prison's had to his presumably access [and] library.... McCaughtry,

State ex rel. Coleman v. No. 2004AP548-W (Wis. unpublished App. order at Ct. December 2004).

¶ 31. The State asserts that the was filed years more than 17 after conviction; Coleman's appellate three letters between Coleman and counsel suggest appellate that counsel assessed the merits of possible appellate wanting issues, found them findings discussed his with Coleman. The letters also show that counsel advised Coleman not to appeal accepted and that Coleman this decision. Fur- thermore, Coleman does not assert that he asked coun- appeal ignored request. sel to and that counsel his any 32. The State also asserts the lack of that anything record Coleman tried to do relative to an appeal given transcripts, from when he was petition supports until 2004 he filed when his habeas appeals' the court of conclusion that was agree unreasonable. We Coleman has made no showing why attempt bring he failed pro many concerns before a court on se basis, as so persons incarcerated have. dispute any

¶ 33. Coleman not does of the facts argued by bring the State. he Instead, asserts did not his claim before the court sooner because he was legal knowledge without or financial means to hire attorney opinion another for a second the issue appeal until he married a woman with financial re- unpersuaded. marriage may are sources. We While his provided catalyst bring petition, have the to a habeas explain away that fact does not the uncontroverted fact years that Coleman knew of his claim for more than 16 nothing, year year. Accordingly, but he did after we has that the State appeals with the court agree unreasonable as a matter delay was Coleman's proved of law.12 the also it However, prove State must delay bringing of Coleman's

was because prejudiced assumed that Here, his claim. the court since more than 16 had years passed because counsel and Coleman discussed an appeal, counsel why little or no recall of he decided to would have or he and that an not he filed what appeal recommend he concluded that Coleman Coleman discussed before the file. closing had counsel's agreed relinquish- Coleman's interpreted 35. The court as delay ment of and the follows: right appeal he initially accepted counsel's conclusion that could He meritoriously Subsequently, his appeal not convictions. counsel, and no appointed no access to Coleman had only It counsel. was after private means retain marriage he could afford to retain the recent attorney represents him before this court. who now Id. at 1-2. was delay It concluded that Coleman's unreasonable, delay prejudiced and then assumed the State. years greatly

Furthermore, delay of seventeen State, As a any view. under reasonable prejudices matter, cannot obtain counsel's the State practical because testimony appeal, his decision not to about memory undoubtedly little or no has counsel appeal If of that decision. Coleman's circumstances ensuing reinstated, prevailed in the rights were certainly preclude a remand would appeal, to mean that interpreted not conclusion should be This 16-year which a circumstances under are no conceivable there However, filing Knight petition would be reasonable. delay in this appeal. not presented such circumstances are issue, further proceedings suppression although on the logical remedy. Additionally, that would be if the ultimately evidence were suppressed, the State would practical retrying have no means of Coleman on the remaining evidence. (footnote omitted).

Id. at 2-3 appeals' assumption may of 36. While court prove only possible true, isit not the outcome that could inquiry postconviction result from of counsel. There- fore, it cannot be decided as a matter of law. To the contrary, appellate may counsel be able to recall or to during happened reconstruct what his communications response Coleman; with they what Coleman's was; and how appeal. reached the ultimate decision not to If he appeals cannot, then the court is correct that the prejudice being State suffered able to meet Coleman's claim of ineffective assistance counsel. But proves assumption if counsel incorrect, the court proceedings further on Coleman's claim of ineffective required. assistance will be agree Accordingly, ¶ 37. we with Coleman that appeals us, based on the record before the court of erred prejudiced by when it assumed the State was Coleman's delay, requiring unreasonable instead of the State to prove prejudice. a factual basis Therefore, we re- appeals precludes verse the court decision that laches corpus, Coleman's for writ of habeas and we remand the matter to the court of to decide how develop a sufficient factual record.

III. CONCLUSION proof regard ¶ 38. The has State the burden of all elements its laches defense. With that in us, mind and based the record before we affirm the proved appeals of that the State conclusion of the court filing unreasonably delayed petition in a that Coleman corpus However, law. a matter of for of habeas as writ reviewing for a court the factual record is insufficient prejudice. Therefore, the State suffered decide whether appeals of remand to the court we reverse and fact-finding the has been to determine whether State delay. by prejudiced The unreasonable court Coleman's appropriate appeals for fact- of finding, shall select a method by through special of or the use master either remand to the circuit court.13 appeals

By of of the court Court.—The decision remanded. is reversed and the cause is {concurring). BUTLER, JR., B. J. 39. LOUIS upon equitable based Laches petitioner's defense is delay bringing in an action unreasonable prejudicial in which such under circumstances Sawyer 124, 227 Wis. 2d defendant. v. Midelfort, (citation omitted). (1999) It 423 159, 74, N.W.2d on the defense, the burden is is an affirmative where unreasonably plaintiffs de- defense to show that layed bringing Id., ¶ 75; v. in Becker the lawsuit. (1972). Becker, 374-75, 202 369, 56 Wis. 2d N.W.2d fact-finding proceedings any In the absence (Coleman's) corpus habeas relate to Marvin Coleman's majority petition, conclude that I fail to see how the can (1) unreasonably proved de- that Coleman the State (2) layed filing petition; element of laches or knowledge that Coleman would the State had claim is not an ineffective assistance of counsel assert hearing in this habeas subsequent finding At the fact may regard to its corpus proceeding, laches be considered issues, ineffective assistance any potential effect on such as Coleman counsel, or retrial of the crimes of which suppression stands convicted. Majority op., including ¶ 2,

an issue in this review. n.l. The effect of these conclusions is to shift the burden proof petitioner, to the Coleman, and to render the fact-finding court and this court into bodies respective jurisdictions.1 in excess of our respect exactly ¶ 40. With to laches, what is be- having court, fore this been considered court appeals? February We have before us Coleman's 2004, habeas attachments, with and the State's response petition. petition alleges to the habeas The 20-year-old pled guilty that in then County peti- nine felonies in Rock Circuit Court. The alleges applied tion that Coleman for and received appellate represent any postconvic- to counsel him in appellate petition alleges tion and matters. The that appellate counsel advised Coleman that "he had no obtaining any appeal," chance of relief on and that accepted pursued appeal. Coleman that advice and no petition alleges The that Coleman has since retained counsel, current and current counsel has concluded ultimately that Coleman had meritorious and deter- challenge minative suppression to the circuit court's denial of his petition alleges

motion. The that aas deprived result, Coleman was of effective assistance appellate delay filing counsel. As to the reasons for in petition, petition alleges initially his the that Coleman accepted appointed having advice, counsel's no reason question years to it, it and was not until married he acquired monetary later that he to resources retain prior performance. counsel to review counsel's The petition alleges further that Coleman was not entitled appointed to counsel. 1 n.2, majority Fleischman, op., citing See 2 v. ¶ Wurtz 97 (1980). 100, n.3,

Wis. 2d 107 293 N.W.2d 155 to refer three written com- 41. The attachments appellate Coleman, and counsel munications between May May relate and that to between Majority op., appeal. original ¶¶ to 8-10. not decision ap- course, communications occurred Of because these February years prior proximately to to 17 Coleman's petition, attached com- 19, 2004, none those habeas delay or the reasons for the munications refer to the delay. only The communication from Coleman asked my "[pjlease appeal appellate if do not close counsel to [sic]".2 deadline not accured has response to Coleman's was the State's What February petition? "Respondents LACK habeas specifically ad- SUFFICIENT INFORMATION performance allegation of contained deficient dress (Emphasis original.) petition.. The in response . ." Coleman's that the be deemed barred asserted appears alleges "[i]t response that The laches. absolutely no took between 1988 challenge performance appellate action although legal means to do so was available counsel, "[TJhere was under him." is no indication Coleman seeking pro any disability precluded him from . .. performance before a review of counsel's se sought has not demonstrated that 2004." "Coleman required by speedy prompt, Wis. Rule relief as 809.51(1)." pursuing very § "This substantial performance appellate challenge is counsel's to added.) manifestly (Emphases unreasonable." hearing facts held to discern the was No petition allegations or in either the habeas the behind response. is a situation where Yet, this not the State's only undisputed one reason- facts and there is are passed. had appears It that then the deadline ("Where Sawyer, able inference. See 227 Wis. 2d at 159 undisputed only are facts there is one reason- may inference, able the court conclude a as matter (citation omitted). met.") law that the elements are response ap- ¶ 44. The State's asserts that "it pears" that Coleman no took action between 1988 and way hearing. 2004, but there no is know that absent alleges The State that "there no indication" that disability precluded pro Coleman was under that se performance, only yet review of counsel's not was there hearing point, no on this but Coleman asserted that he relied on counsel's advice that his case lacked merit. presents dispute why pro This then a factual as to no se sought. finally action was The State maintains that sought "Coleman not has demonstrated" that prompt, speedy required by relief as the habeas statute. only initially Yet, not does assert that he asked appeal, subsequent for an but his communication with year counsel a later indicated that he still appeal. creating wanted In addition to a factual dispute point, argument clearly on this the State's shifts petitioner the burden to the laches should not apply, leaving party instead the burden on the asserting laches, defense of the State.3 Given these disputes, clearly inappropriate factual it is for either the court of or this court decide this fact-finding. without further Id. case 45. This is not unlike State ex rel. McMil (Ct. Dickey,

lian v. 266, 282, 132 Wis. 2d 392 N.W.2d453 1986). App. petitioner sought judicial action, In that argument The State's points first two would also respect relieve State of its with burden to the affirmative laches, defense of as its position clearly does not establish who what, has prove so that the inference is the petitioner did present enough not here. probation from at of revocation 1974. Id.

review his languished in the circuit McMillian's case then transcript eight years, no of the with court excess having proceedings In ever been filed. Id. at 274. depart- denying petition, and the the circuit court his "failing 'pursue' for McMillian to his ment faulted making further demands or certiorari action in not concerning inquiries Id. at 282. the status of his case." "reject[ed] attempt to shift the The court of this delay proceedings from have for in the those who blame required to one to in the manner law who failed act complied legal requirements." Id. has with all Similarly, sought

¶ 46. in this matter Coleman represent appellate to him and received counsel initially appellate postconviction and matters. After being merit, his case lacked last informed that asked coun- communication to counsel known appeal open. keep words, In Coleman's other sel to legally required steps take took was pursue postconviction the factual dis- relief. Given delaying putes for his subse- that exist the reasons given quent burden of actions, and the fact party asserting proving affirma- falls laches making factual defense, this should not be tive court findings establish or on Coleman's failure to based Sawyer, anything. prove 2d at 159. See 227 Wis. fully agree majority's

¶ 47. I with the observation Smalley appeals, v. in State ex rel. that the court (Ct. App. Morgan, 2d 565 N.W.2d 805 Wis. 1997), analysis "appears conflated its have petition's de- the unreasonable habeas timeliness with majority Majority op., lay The element of laches." analysis "[w]hile accurately observes that explanation Smalley's prefaced was with Smalley actually principles, rests on decision laches application principles." Majority op., ¶ the of habeas 25. majority correctly "[t]he The concludes that foundation readily Smalley apparent for the decision in becomes proof places the when decision the burden timeli- of Smalley, petition is in ness reviewing the which accord with of regard petition." in timeliness to a habeas added) (citation Majority op., (emphasis ¶ 25 and foot- omitted). note Unfortunately, majority

¶ 48. in the conflates ex- actly Smalley analysis the manner same as the court its petitioner's the of habeas timeliness with the unreason- applying of able element In laches. the laches majority case, affirmative defense to the of facts this the points out that "Coleman does not assert that he asked appeal ignored counsel to and that counsel his re- quest."4 Majority op., places ¶ 31. This the burden on opposed majority Coleman as to the State. The then agrees showing why that "Coleman has made no attempt bring failed to to his concerns before a court on pro many persons basis, se as so incarcerated have."5 Majority op., majority again ¶ places The once the majority burden on Coleman. The then concludes that years, Coleman knew of claim his for more than 16 but Majority nothing.6 op., Again, that he did the earlier, As noted this subject "fact" is to dispute, as Coleman's last instructions of record to appellate counsel were keep to his appeal, appeal. hearing not close his There was no resolve factual dispute. this earlier, subject As noted is dispute, this "fact" also as alleged Coleman that he relied on counsel's advice and lacked the lawyer. again, means to hire another Once there was hearing no to resolve this dispute. factual earlier, As subject noted this "fact" is dispute, also as clearly Coleman asserts he was not aware the merits of claim, having upon advice, relied appellate counsel's any- placed In the absence on Coleman. is burden hearing matter, that exist this the facts to determine analyzing majority, instead of that the it is clear applied State, has offered defense laches principles in the same factor under habeas timeliness Smalley.7 appeals in manner as the court of record, in the absence of this 49. On the basis hearing fact-finding process, any I conclude that or proving meet its burden has failed to State delayed bringing unreasonably claim, this any knowledge that Coleman lacked or that State right is his habeas on which assert would already majority determined that has As the based. necessary State has whether the to ascertain remand delay, prejudiced this I remand would been of all for a determination to the court of matter Accordingly, respectfully I laches. three elements of concur. Justice to state that Chief I am authorized and Justice ANN S. ABRAHAMSON

SHIRLEY join concurring opinion. BRADLEY this WALSH of his to review the merits hire counsel the means to lacked no again, there was years later. Once he married claim until dispute. this factual hearing to resolve passage that the a clear inference opinion The also raises delay element the unreasonable enough to meet of time alone this, heartily disagree. I With the laches defense.

Case Details

Case Name: State Ex Rel. Coleman v. McCaughtry

Court Name: Wisconsin Supreme Court

Date Published: May 18, 2006

Citation: 714 N.W.2d 900

Docket Number: 2004AP548-W

Court Abbreviation: Wis.