2019 WI 110

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP880-W

COMPLETE TITLE: State of Wisconsin ex rel. Joshua M. Wren,

 Petitioner-Petitioner,

 v.

Reed Richardson Warden,

 Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS 

OPINION FILED: December 26, 2019 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 6, 2019 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Milwaukee 

JUDGE: Carolina Stark 

JUSTICES:

HAGEDORN, J., delivered the majority opinion of the court, in 

which ROGGENSACK, C.J., ZIEGLER and KELLY, JJ., joined. ANN 

WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA 

GRASSL BRADLEY, and DALLET, JJ., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

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.
2019 WI 110

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP880-W 

(L.C. No. 2006CF2518)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Joshua M. Wren,

 Petitioner-Petitioner,

 v.

Reed Richardson Warden,

 Respondent.

FILED

DEC 26, 2019

Sheila T. Reiff

Clerk of Supreme Court

HAGEDORN, J., delivered the majority opinion of the court, in 

which ROGGENSACK, C.J., and ZIEGLER and KELLY, JJ., joined. ANN 

WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA 

GRASSL BRADLEY, and DALLET, JJ., joined.

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

¶1 BRIAN HAGEDORN, J. 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 
No. 2017AP880-W

2

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. 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.

 

1 State ex rel. Wren v. Richardson, No. 2017AP880-W, 

unpublished slip op. (Wis. Ct. App. Nov. 12, 2018).
No. 2017AP880-W

3

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 

 

2 The State charged Wren with one count of first-degree 

reckless homicide. The complaint alleged that, in an interview 

conducted by a Milwaukee police detective, Wren admitted he 

"took out a revolver from his left sweatshirt pocket and pointed 

the gun up in the air and fired a shot." In the same interview, 

Wren stated that "he shot this man on accident."

3 The PSI recommended 13 years of initial confinement and 

five to six years of extended supervision. In exchange for 

Wren's guilty plea, the State agreed not to seek a specific 

sentence.
No. 2017AP880-W

4

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 petition5 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 

 

4 Specifically, the circuit court amended the judgment "to 

reflect that restitution shall be paid from up to 25% of the 

defendant's prison earnings (rather than funds)."

5 "Habeas petitions to the court of appeals alleging 

ineffective assistance of appellate counsel are often referred 

to as 'Knight petitions.'" State ex rel. Kyles v. Pollard, 2014 

WI 38, ¶27 n.11, 354 Wis. 2d 626, 847 N.W.2d 805; see also State 

v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

6 The petition notes that Wren's family discovered Kostich's 

"license to practice law in Wisconsin was suspended for 60 days 

in November 2012"; that he "was reprimanded in 1986 for a 
No. 2017AP880-W

5

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 

 

criminal conviction of failing to file tax returns"; and that 

"in 2010 he was reprimanded for representing a person on a 

criminal charge, in which he had previously consulted with the 

victim in the criminal case about potential civil action against 

the person ultimately represented in the criminal matter."
No. 2017AP880-W

6

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, 
No. 2017AP880-W

7

determined it was equitable to apply laches in this case. We 

granted Wren's petition for review.

II. DISCUSSION

¶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, 

 

7 Wren also argues the merits of his habeas petition and 

asks us to reinstate his direct appeal rights. However, because 

we affirm the court of appeals' application of laches, we need 

not address this argument.

8 Laches was first explicitly mentioned as a defense against 

a habeas petition in Wisconsin in 1986. State ex rel. McMillian 

v. Dickey, 132 Wis. 2d 266, 281, 392 N.W.2d 453 (Ct. App. 1986) 

("While we recognize that a habeas proceeding may be dismissed 

under the equitable doctrine of laches, the delay on the part of 

the petitioner must be unreasonable."), abrogated on other 

grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 

Wis. 2d 352, 714 N.W.2d 900. A later court of appeals decision 

cited McMillian for the proposition that "[a]s an equitable 
No. 2017AP880-W

8

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 

 

doctrine, habeas corpus is subject to the doctrine of laches." 

State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 800, 565 

N.W.2d 805 (Ct. App. 1997), overruled on other grounds by State 

ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, 387 Wis. 2d 50, 

928 N.W.2d 480.

Outside the context of habeas corpus, laches is a wellestablished equitable principle in Wisconsin jurisprudence. As 

early as 1859, this court stated that "[u]nreasonable delay, and 

mere lapse of time, independently of any statute of limitations, 

constitute a defense in a court of equity." Sheldon v. 

Rockwell, 9 Wis. 158 (*166), 162 (*181) (1859).

9 See also Kenosha County v. Town of Paris, 148 Wis. 2d 175, 

188, 434 N.W.2d 801 (Ct. App. 1988) ("equity aids the vigilant, 

not those who sleep on their rights").

10 A habeas petition is an equitable claim, so application 

of an equitable defense like laches makes sense, especially 

where habeas petitions can be filed years after the conviction. 

See State ex rel. Dowe v. Circuit Court for Waukesha Cty., 184 

Wis. 2d 724, 728-29, 516 N.W.2d 714 (1994) ("As an equitable 
No. 2017AP880-W

9

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-Quintero, 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.

 

doctrine . . . habeas corpus is confined to situations in which 

there is a pressing need for relief or where the process or 

judgment upon which a prisoner is held is void.").
No. 2017AP880-W

10

¶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 (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.

 

11 Wren concedes the second element, i.e., the State lacked 

knowledge that he would be asserting the habeas claim.
No. 2017AP880-W

11

¶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. 

 

12 See also Jones v. United States, 6 Cl. Ct. 531, 533 

(1984) ("Where laches is raised, knowledge of the law is imputed 

to all plaintiffs. Consequently, professed ignorance of one's 

legal rights does not justify delay in filing suit.").

13 See also 27A Am. Jur. 2d Equity § 139 ("The correct 

inquiry in determining whether a claimant's conduct resulted in 

a want of due diligence requires focus not upon what the 

plaintiff knows, but what he or she might have known, by the use 

of the means of information within his or her reach, as the law 

requires a party to discover those facts that were discoverable 

through the exercise of reasonable diligence.").
No. 2017AP880-W

12

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 

 

14 His first two motions dealt with the DNA surcharge and 

restitution award. It was not until his third motion in 2015 

that he turned his attention to his sentence, the issue he 

states he would like to challenge if his direct appeal rights 

are reinstated. But even his 2016 motion for sentence 

modification was based on the circuit court's purported reliance 

on an improper fact——again, nothing suggesting a broader 

challenge to his conviction or sentence, or to his trial 

counsel's effectiveness.
No. 2017AP880-W

13

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 

 

15 See infra, ¶25. Courts have long recognized that a 

violation of constitutional rights——and ineffective assistance 

of counsel is a violation of the Sixth Amendment——must be timely 

asserted even in criminal cases. See Yakus v. United States, 

321 U.S. 414, 444 (1944) ("No procedural principle is more 

familiar to this Court than that a constitutional right may be 

forfeited in criminal as well as civil cases by the failure to 

make timely assertion of the right before a tribunal having 

jurisdiction to determine it.").

16 For example, Wren noted in his habeas petition that his 

family discovered Kostich's disciplinary history. Moreover, the 

circuit court made no findings suggesting that Wren had the kind 

of severe mental limitations that might call for even broader 

latitude than we normally give pro se litigants.
No. 2017AP880-W

14

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 

 

17 See State v. Romero-Georgana, 2014 WI 83, ¶69, 360 

Wis. 2d 522, 849 N.W.2d 668 ("Although we liberally construe 

filings by pro se litigants, . . . there is a limit to our 

lenience. A reviewing court might avert its eyes from the flaws 

on the peripheries, but it will not ignore obvious 

insufficiencies at the center of a motion." (internal citation 

omitted)).

18 See Waushara County v. Graf, 166 Wis. 2d 442, 452, 480 

N.W.2d 16 (1992) ("Pro se appellants must satisfy all procedural 

requirements, unless those requirements are waived by the court. 

They are bound by the same rules that apply to attorneys on 

appeal. The right to self-representation is '[not] a license 

not to comply with relevant rules of procedural and substantive 

law.'" (quoting Farretta v. California, 422 U.S. 806, 834 n.46 

(1975))).
No. 2017AP880-W

15

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 (1994).20

 

19 All subsequent references to the Wisconsin Statutes are 

to the 2017-18 version.

20 This is no outlier; State v. Escalona-Naranjo has been 

cited thousands of times in Wisconsin courts. 185 Wis. 2d 168, 

517 N.W.2d 157 (1994).
No. 2017AP880-W

16

¶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

 

21 This is in large part because there is no constitutional 

right to counsel on a collateral attack. Pennsylvania v. 

Finley, 481 U.S. 551, 555 (1987) ("We have never held that 

prisoners have a constitutional right to counsel when mounting 

collateral attacks upon their convictions, . . . and we decline 

to so hold today. Our cases establish that the right to 

appointed counsel extends to the first appeal of right, and no 

further." (internal citation omitted)).

22 See, e.g., Escalona-Naranjo, 185 Wis. 2d at 186 

("[Escalona-Naranjo] has not alleged a sufficient reason as to 

why his allegation of ineffective assistance of trial counsel 

could not have been raised when he filed his [Wis. Stat. 

§] 974.02 motion for a new trial."); Romero-Georgana, 360 

Wis. 2d 522, ¶5 ("[T]he defendant has not offered a sufficient 

reason in his third postconviction motion for failing to raise 

his [Wis. Stat.] § 974.06 claim [for ineffective assistance of 

counsel] in his second postconviction motion. . . . 

Consequently, the defendant's claim is barred.").

23 Unless, of course, an exception in Wis. Stat. § 974.06 is 

triggered.
No. 2017AP880-W

17

¶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.

 

24 Wren also argues he did not know he should file a habeas 

petition in the court of appeals until our 2014 decision in 

Kyles, 354 Wis. 2d 626. But this decision only clarified where 

such a claim should be filed. Nothing in Kyles announced 
No. 2017AP880-W

18

¶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 successful in order to assess 

whether he delayed in bringing that very claim.

¶31 Second, and more to the point, Wren's argument that 

laches cannot apply when counsel fails to appeal as promised is 

without any legal support in Wisconsin. The issue before us is 

not, did Wren, with counsel, miss the deadline. The question 

is, knowing counsel did not file an appeal, did Wren himself 

unreasonably delay in seeking relief. If the dissent is correct 

that any delay of the sort alleged here is attributable to the 

State, then Wren could wait ten, twenty, or even thirty years to 

raise his claim, regardless of any impact on the State's ability 

to address the merits of an alleged ineffective assistance 

claim. This cannot be correct. Pro se litigants, including 

those who claim their trial counsel did not serve them by filing 

an appeal, still have an independent obligation to timely raise 

these issues with the court on their own. A pro se litigant has 

no license to "lay in the weeds and wait to raise an issue of 

 

anything new related to the substance or timing of a petition to 

reinstate direct appeal rights because of ineffective assistance 

of trial counsel. The issue here is not that Wren timely raised 

the claim in the wrong court. It is that he untimely raised the 

claim.

This argument is also unpersuasive in light of the fact 

that, notwithstanding his filing of several postconviction 

motions in the interim, Wren did not file his habeas petition 

until three years after Kyles was decided.
No. 2017AP880-W

19

potential merit." Washington, 343 Wis. 2d 434, ¶23. After 

knowing no appeal had been filed, and after knowing his counsel 

had not responded to him, Wren had an obligation to exercise 

reasonable diligence and raise the issues in a timely manner. 

Wren's delay of six to seven years from the time he knew this is 

not attributable to the State; it is on Wren. Put simply, Wren 

had some time to figure this out, but not unlimited time. Here, 

his delay was unreasonable.

2. The State Proved Prejudice

¶32 Wren's unreasonable delay alone is not sufficient to 

support the application of laches. The State also must prove 

that the unreasonable delay prejudiced its defense against the 

habeas petition.25 Coleman, 290 Wis. 2d 352, ¶19. "What amounts 

 

25 Many jurisdictions include in their prejudice analysis 

whether the delay prejudices the state's ability to address the 

underlying merits should the petition be granted. The State has 

made no such argument in this case, but it is a common position 

around the country. See, e.g., United States v. Darnell, 716 

F.2d 479, 480 (7th Cir. 1983) ("The government's ability to meet 

successfully the allegations of the motion or to present a case 

against the defendant if he is granted a new trial may be 

greatly diminished by the passage of time." (footnote omitted)); 

Telink, Inc. v. United States, 24 F.3d 42, 48 (9th Cir. 1994) 

("In making a determination of prejudice, the effect of the 

delay on both the government's ability to respond to the 

petition and the government's ability to mount a retrial are 

relevant." (citing Darnell, 716 F.2d at 480)); In re Douglas, 

200 Cal. App. 4th 236, 246 (Cal. Ct. App. 2011) ("[T]he People 

have been prejudiced both with regard to retrying Defendant and 

to responding to issues raised in Defendant's petition."); 

Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) ("For 

post-conviction laches purposes, prejudice exists when the 

unreasonable delay operates to materially diminish a reasonable 

likelihood of successful re-prosecution." (citation omitted)); 
No. 2017AP880-W

20

to prejudice, such as will bar the right to assert a claim after 

the passage of time pursuant to laches, depends upon the facts 

and circumstances of each case, but it is generally held to be 

anything that places the party in a less favorable position." 

27A Am. Jur. 2d Equity § 143.

¶33 Courts commonly describe two types of prejudice: 

evidentiary and economic.26 The State here claims evidentiary 

 

Woodberry v. State, 101 P.3d 727, 731 (Kan. Ct. App. 2004) ("The 

length of th[e] delay is unreasonable, and the State would 

undoubtedly be prejudiced if forced to retry [the 

petitioner]."); Jones v. State, 126 A.3d 1162, 1182 (Md. 2015) 

("[W]e conclude that, for purposes of determining whether laches 

bars an individual's ability to seek coram nobis relief, 

prejudice involves not only the State's ability to defend 

against the coram nobis petition, but also the State's ability 

to reprosecute."); Johnson v. State, 714 N.W.2d 832, 838 (N.D. 

2006) ("[P]rejudice exists when the unreasonable delay operates 

to materially diminish a reasonable likelihood of successful reprosecution." (quoting Kirby v. State, 822 N.E.2d 1097, 1100 

(Ind. Ct. App. 2005))); Ex Parte Perez, 398 S.W.3d 206, 215 

(Tex. Crim. App. 2013) ("[We] expand the definition of prejudice 

under the existing laches doctrine to permit consideration of 

anything that places the State in a less favorable position, 

including prejudice to the State's ability to retry a 

defendant . . . .").

26 See ABB Robotics, Inc. v. GMFanuc Robotics Corp., 828 

F. Supp. 1386, 1393 (E.D. Wis. 1993) ("Material Prejudice 'may 

be either economic or evidentiary.'" (quoted source omitted)). 

American Jurisprudence, using slightly different terms, 

describes it this way: 

Generally, there are two main types of prejudice 

arising from delay by plaintiffs in bringing their 

claims that support the laches defense: (1) "defense 

prejudice," whereby the defendant is impaired from 

successfully defending itself from suit given the 

passage of time; and (2) "economic prejudice," whereby 

the costs to the defendant have significantly 

increased due to the delay.
No. 2017AP880-W

21

prejudice. "Evidentiary prejudice . . . may arise where a 

plaintiff's delay in bringing an action has curtailed the 

defendant's ability to present a full and fair defense on the 

merits due to the loss of evidence, the death of a witness, or 

the unreliability of memories." 30A C.J.S. Equity § 158.

¶34 The loss of key records and the unavailability of 

essential witnesses are "classic elements" of prejudice in a 

laches defense. Id. The death of key witnesses is precisely 

the kind of thing laches is aimed at, particularly where the 

"the decedent's knowledge is crucial to a party's 

defense . . . ." 27A Am. Jur. 2d Equity § 152. American 

Jurisprudence explains: 

The doctrine of laches is peculiarly applicable where 

the difficulty of doing justice arises through the 

death of the principal participants in transactions 

complained of, or of witnesses to transactions . . . . 

For example, documents may have been misplaced or 

destroyed, or it may be difficult or impossible for 

the party to defend a claim if essential witnesses are 

deceased . . . .

Id. § 149.27

 

27A Am. Jur. 2d Equity § 144.

27 The Wisconsin Practice Series offers draft forms for 

practitioners. One of its sample laches forms addresses 

precisely this type of scenario as an archetypal issue. The 

form reads: 

The plaintiff had knowledge of all of the facts set 

forth in the complaint at least _______ years before 

commencement of this action. During that interval, 

all persons who would be material witnesses have died, 

the defendant's position has substantially changed as 

a result, and the defendant is materially prejudiced. 

The plaintiff should be barred by laches from 

obtaining relief in this action.
No. 2017AP880-W

22

¶35 Wren asserts that the State has not proven prejudice. 

He rests his argument largely on the fact that the State's claim 

of prejudice relies on the unavailability of Attorney Kostich. 

And in that vein, Wren points specifically to the circuit 

court's factual findings that he believed Kostich would file an 

appeal on his behalf and subsequently failed to respond to Wren 

or his family, despite their attempts to contact him. If these 

findings are accepted, Wren maintains, that establishes 

ineffective assistance of counsel, and no contradictory 

hypothetical evidence could matter.

¶36 Wren's argument on this point is superficially strong, 

but it rests on a faulty foundation. To be sure, the State does 

not contest the circuit court's factual findings. But fairly 

understood, the State advanced something even more fundamental: 

it had no tools and no evidence to defend the habeas claim at 

all because its necessary evidence——the files and testimony of 

Kostich——were unavailable due to Wren's unreasonable delay in 

raising the issue. The State made this point most poignantly at 

oral argument when it said it did not challenge the factual 

findings because——due to Wren's delay——it had nothing with which 

to challenge them. Even the evidentiary hearing at which the 

circuit court made its factual findings was a one-sided story. 

This is the very definition of prejudice.

 

5 Wisconsin Practice Series: Civil Procedure Forms § 40:433 (3d 

ed. 2019).
No. 2017AP880-W

23

¶37 It is no excuse to say that we do not know what 

testimony Kostich would have offered, or what evidence his case 

files may have contained. Zizzo v. Lakeside Steel & 

Manufacturing Co. is instructive on this point. 2008 WI App 69, 

312 Wis. 2d 463, 752 N.W.2d 889. There, a son who inherited 

property sought to discharge the mortgage obligations on the 

property in part on the grounds of laches. Id., ¶1. His 

deceased parents received a loan in 1989 and were supposed to 

pay off the property in 1993, but no payments were ever made, 

nor were efforts made to collect or foreclose on the mortgage. 

Id. The mortgage holder responded that no prejudice was shown, 

essentially arguing the claim was "speculative because he does 

not know exactly what information his [deceased] parents 

possessed . . . ." Id., ¶20. The court's response there is 

true here as well: "Of course he does not know that 

information——and that is exactly how he is prejudiced." Id.

¶38 It is important to stress that prejudice to a party 

for purposes of laches does not mean a party is so disadvantaged 

that it cannot prosecute its case. The prerequisite under our 

law is prejudice due to the delay, i.e., disadvantage to a 

party. Thus, the legal element is met by showing the State's 

defense of the habeas petition was meaningfully disadvantaged. 

The death of the essential witness to the events at issue, along 

with the loss of his documentary files, unquestionably satisfies 

this standard.
No. 2017AP880-W

24

3. The Court of Appeals Appropriately Exercised 

Its Discretion in Applying Laches

¶39 Though we agree that the State proved all three 

elements of laches as a matter of law, the court of appeals 

still had the duty and authority to decide whether to apply 

laches in this case. As noted above, we review this decision 

for an erroneous exercise of discretion. Coleman, 290 

Wis. 2d 352, ¶17. Therefore, as long as the court applied a 

proper standard of law and employed a demonstrated, rational 

process to reach a conclusion that a reasonable court could 

reach, the decision should be affirmed. State v. Cooper, 2019 

WI 73, ¶13, 387 Wis. 2d 439, 929 N.W.2d 192. When we review a 

discretionary decision, we look for reasons to affirm the lower 

court's decision, even if its reasoning could have been 

explained more fully. See State v. Hurley, 2015 WI 35, ¶29, 361 

Wis. 2d 529, 861 N.W.2d 174.

¶40 The court of appeals properly acknowledged it needed 

to exercise its discretion whether to apply laches to Wren's 

case. In deciding to do so, the court reasoned that application 

was appropriate because "Wren waited over ten years to raise 

concerns about the lack of appointment of postconviction counsel 

and a direct appeal, despite the fact that he sought relief 

numerous times from the trial court." State ex rel. Wren v. 

Richardson, No. 2017AP880-W, unpublished slip op. at 9 (Wis. Ct. 

App. Nov. 12, 2018). The court relied significantly on the 

reasoning of Washington, 343 Wis. 2d 434, where the petitioner 

waited five years to seek reinstatement of his appellate rights.
No. 2017AP880-W

25

¶41 Wren's objections to the court's decision to apply 

laches are predominantly echoes of his previous arguments: he 

shouldn't be faulted for the State's failure to ensure he had 

constitutionally adequate counsel; he didn't know he could do 

this; and he wasn't familiar with the court system.

¶42 All of these assertions, however, are aimed at a 

rebalancing of the equities in this court. That is not how we 

review discretionary decisions. The court of appeals' decision 

is sufficient to satisfy our standard of review. It was 

reasonable for the court to conclude that even if the State 

failed to provide him with constitutionally adequate counsel, 

any subsequent delays by Wren should not be attributed to the 

State.28 It was reasonable to conclude that the State's 

 

28 Furthermore, while failure to file an appeal is deficient 

performance for which prejudice is presumed, claims of 

ineffective assistance of counsel generally fail absent some 

form of corroboration of the attorney's actions.

A defendant on a post-conviction motion may bring a 

claim of ineffective counsel. If the counsel in 

question cannot appear to explain or rebut the 

defendant's contentions because of death . . . then 

the defendant should not, by uncorroborated 

allegations, be allowed to make a case for 

ineffectiveness. The defendant must support his 

allegations with corroborating evidence. Such 

evidence could be letters from the attorney to the 

client, transcripts of statements made by the attorney 

or any other tangible evidence which would show the 

attorney's ineffective representation. . . . In other 

words, we will presume that counsel had a reasonable 

basis for his actions, and the defendant cannot by his 

own words rebut this presumption. Such a burden will 

assure that post-conviction proceedings will not be 

brought solely on the basis of ineffective counsel 
No. 2017AP880-W

26

inability to mount a defense due to Wren's delay should outweigh 

Wren's interest in further challenging his conviction.29 The 

question before us is not whether we would have made the same 

decision, but whether the court of appeals applied a proper 

standard of law and employed a demonstrated, rational process to 

reach a conclusion that a reasonable court could reach.30 The 

answer is yes it did.

III. CONCLUSION

¶43 We decline Wren's invitation to reconsider our 

decisions holding that laches is an available defense to a 

habeas petition. The State raised the defense in response to 

Wren's petition and proved all three elements of laches, in 

particular, unreasonable delay and prejudice. We also affirm 

the court of appeals' exercise of discretion in applying laches 

 

when counsel dies or for some other reason becomes 

unavailable to explain his or her prior actions.

State v. Lukasik, 115 Wis. 2d 134, 140, 340 N.W.2d 62 (Ct. App. 

1983).

29 The dissent would balance the equities differently, 

giving more weight to the prejudice to Wren. Dissent, ¶75. 

That is the very definition of rebalancing the scales in 

violation of our standard of review.

30 See Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 

(Ct. App. 1991) ("And where the record shows that the court 

looked to and considered the facts of the case and reasoned its 

way to a conclusion that is (a) one a reasonable judge could 

reach and (b) consistent with applicable law, we will affirm the 

decision even if it is not one with which we ourselves would 

agree." (footnote omitted)).
No. 2017AP880-W

27

to Wren's petition. Therefore, we affirm the court of appeals' 

denial of Wren's petition for a writ of habeas corpus.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2017AP880-W.awb

1

¶44 ANN WALSH BRADLEY, J. (dissenting). "It is 

incongruous to state that a defendant was denied the right to 

counsel and then preclude the defendant from raising a claim 

because of errors made due to the absence of counsel." State ex 

rel. Kyles v. Pollard, 2014 WI 38, ¶56, 354 Wis. 2d 626, 847 

N.W.2d 805. Yet the majority opinion does just that.

¶45 In doing so, the majority endorses a significant

failure in our system of justice. Abandoned by counsel and 

hampered by a second grade reading level, Wren was left to fend 

for himself. Not surprisingly, he spent several years adrift in 

a sea of pro se motions. Once he learned that the correct 

mechanism to seek reinstatement of the appeal rights he had lost 

due to his counsel's abandonment was to file a habeas petition, 

he did so promptly. 

¶46 I agree with the majority that laches is a defense 

available to the State in response to a petition for habeas 

corpus. See majority op., ¶3. Our case law is well established 

on this point. See, e.g., State ex rel. Lopez-Quintero v. 

Dittman, 2019 WI 58, ¶10, 387 Wis. 2d 50, 928 N.W.2d 480.

¶47 However, I part ways with the majority's application 

of the doctrine of laches to the facts of this case. In my 

view, the majority errs in its determination that Wren's delay 

was unreasonable. The majority further errs in refusing to 

disturb the court of appeals' conclusion that the application of 

laches in this case was equitable.
No. 2017AP880-W.awb

2

¶48 Because I determine that Wren's delay was not 

unreasonable, and the application of laches to bar his claim is 

hardly equitable, I respectfully dissent.

I

¶49 At the age of 15, Wren was charged with first-degree 

reckless homicide. The next year, in 2007, he pleaded guilty as 

charged in exchange for the State's agreement not to seek a 

specific sentence. As the majority acknowledges, the sentence 

he received was "considerably more than Wren's counsel suggested 

and longer than was recommended in the presentence investigation 

report (PSI)." Majority op., ¶4.

¶50 Wren told his attorney, Nikola Kostich, that he 

disagreed with the sentence.1 Attorney Kostich responded that 

Wren should not worry because they would appeal. Immediately 

after the sentencing hearing, members of Wren's family also 

spoke with Attorney Kostich, and Attorney Kostich also assured

them that he would file an appeal on Wren's behalf.

¶51 Such an appeal never came. Wren and members of his 

family attempted to contact Attorney Kostich over a period of 

 

1 The facts as set forth in this dissent are largely taken 

from the circuit court's findings of fact. The State has not 

challenged these facts as clearly erroneous. Majority op., ¶11.
No. 2017AP880-W.awb

3

several years, but they received no response.2 Accordingly, the 

circuit court found as a fact that "Attorney Kostich 

intentionally led Wren and third parties acting on his behalf to 

believe that he would timely complete the requirements necessary 

for the defendant to seek postconviction relief, and then he 

failed to do so without notifying Wren or third parties acting 

on his behalf." Attorney Kostich passed away in 2014.

¶52 The circuit court additionally found as a fact that 

"[s]ometime in 2010 or 2011, Wren concluded that Attorney 

Kostich had not filed an appeal on his behalf. After reaching 

this conclusion, Wren still wanted to seek postconviction relief 

regarding ineffective assistance of trial counsel and the 

sentence, but he did not know how to do so." Consistent with 

such an intent, Wren filed various motions in the circuit court 

from 2010 to 2016. Id., ¶6. However, Wren did not know that he 

could file a habeas petition that could reinstate his appeal 

rights.

 

2 Attorney Kostich was brought before this court for 

professional discipline on four prior occasions, including 

during the relevant period here. See In re Disciplinary 

Proceedings Against Kostich (Kostich IV), 2012 WI 118, 344 

Wis. 2d 534, 824 N.W.2d 799; In re Disciplinary Proceedings 

Against Kostich (Kostich III), 2010 WI 136, 330 Wis. 2d 378, 793 

N.W.2d 494; In re Disciplinary Proceedings Against Kostich

(Kostich II), 2005 WI 90, 282 Wis. 2d 206, 700 N.W.2d 763; 

Matter of Disciplinary Proceedings Against Kostich (Kostich I), 

132 Wis. 2d 227, 391 N.W.2d 208 (1986). In two of these 

instances, Attorney Kostich was disciplined for failing to 

communicate with a client or a client's family member or failing 

to act with reasonable diligence as are the allegations in this 

case. Kostich IV, 344 Wis. 2d 534; Kostich II, 282 Wis. 2d 206.
No. 2017AP880-W.awb

4

¶53 Wren testified that he eventually learned of the 

mechanism of a habeas petition from his uncle, who was 

incarcerated in another institution. He further testified that 

within "three to four months" of learning this information, he 

filed the petition for writ of habeas corpus that is the subject 

of this case, seeking to reinstate his right to pursue the 

postconviction relief he thought he would be seeking through 

Attorney Kostich. Specifically, Wren argued that he was denied 

the right to a direct appeal and the right to the assistance of 

counsel on that appeal, because he was abandoned by his 

attorney.

II

A

¶54 The majority's first error lies in its determination 

that Wren's delay in seeking to reinstate his appeal rights was 

unreasonable.

¶55 In the majority's view, "the delay clock started 

running no later than 2010 or 2011 when Wren, by his own 

admission, learned no appeal had been filed . . . ." Id., ¶21. 

After he learned no appeal had been filed, the majority reasons, 

"Wren researched and leveraged his available resources to craft 

four separate pro se motions relating to his conviction——none 

even hinting at the claims raised before us." Id.

¶56 While the majority places the delay at Wren's feet, it 

glosses over the underlying reason that an appeal was never 

filed——that Wren was abandoned by his counsel and thus 

completely denied the right to counsel on direct appeal in 
No. 2017AP880-W.awb

5

violation of the Sixth Amendment. See State ex rel. Seibert v. 

Macht, 2001 WI 67, ¶10, 244 Wis. 2d 378, 627 N.W.2d 881 

(recognizing a constitutional right to counsel on appeal); Page 

v. Frank, 343 F.3d 901, 909 (7th Cir. 2003) ("It is well 

established that a criminal defendant possesses the right to 

effective assistance of counsel through his first appeal of 

right."); Evitts v. Lucey, 469 U.S. 387, 396 (1985).

¶57 Indeed, such abandonment by counsel has been described 

by the Seventh Circuit as a "per se violation of the sixth 

amendment." Castellanos v. United States, 26 F.3d 717, 718 (7th 

Cir. 1994). "If the defendant told his lawyer to appeal, and 

the lawyer dropped the ball, then the defendant has been 

deprived, not of effective assistance of counsel, but of any

assistance of counsel on appeal." Id. 

¶58 United States Supreme Court precedent dictates that, 

as a constitutional matter, the responsibility for the denial of 

counsel on direct appeal is imputed to the State. And it is the 

State which must bear the cost——dare I say the burden——of the 

resulting default. In Coleman v. Thompson, 501 U.S. 722, 754 

(1991), the Court wrote:

Where a petitioner defaults a claim as a result of the 

denial of the right to effective assistance of 

counsel, the State, which is responsible for the 

denial as a constitutional matter, must bear the cost 

of any resulting default and the harm to state 

interests that federal habeas review entails.

In other words, "if the procedural default is the result of 

ineffective assistance of counsel, the Sixth Amendment itself 

requires that responsibility for the default be imputed to the 
No. 2017AP880-W.awb

6

State." Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 

(1986)).

¶59 These principles certainly apply here. It is the 

State's responsibility to provide Wren with counsel, and it 

utterly failed in that endeavor. To say that Wren

"unreasonably" delayed when the delay must be imputed to the 

State turns Supreme Court precedent on its head.

¶60 Nevertheless, the majority seems unfazed by the Sixth 

Amendment mandate that the responsibility for the delay be 

imputed to the State. According to the majority it is the pro 

se defendant, with a second grade reading ability who was 

abandoned by counsel, that we hold responsible instead.

¶61 The majority admonishes that: "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." Majority op., 

¶23. Really? First of all, such statements have no record 

support. But more importantly, is this really the high bar that 

we are requiring of pro se litigants like Wren——"to take 

advantage of every possible legal argument he could make?"

¶62 It is the rare member of the public who even knows of 

the existence of a writ of habeas corpus, let alone what it 

means and how and when to file such a writ. Recall that even 

experienced lawyers and courts were unsure how to proceed. This 

court did not clarify the proper forum for filing a habeas 

petition until 2014,3 but the majority curiously expects a non-

 

3 See State ex rel. Kyles v. Pollard, 2014 WI 38, ¶3, 354 

Wis. 2d 626, 847 N.W.2d 805.
No. 2017AP880-W.awb

7

lawyer abandoned by counsel to have figured it all out before 

then.

¶63 Further, the majority wrongly holds Wren's filings 

prior to this habeas proceeding against him. It relies on the 

assertion that "Wren researched and leveraged his available 

resources to craft four separate pro se motions relating to his 

conviction——none even hinting at the claims raised before us" to 

support the proposition that Wren sat on his rights. Id., ¶21.

¶64 But Wren is not trained in the law, and he was a mere 

15 years old at the time of his crime. The record indicates 

that he read at a second grade level. He was completely 

abandoned by counsel and left to fend for himself through no 

fault of his own. 

¶65 The majority asserts that it is simply holding Wren to 

"the same standard we apply to all pro se litigants." Id., ¶25. 

Citing to secondary sources, the majority declares that Wren's 

ignorance of his legal rights does not absolve him of any 

obligation. Id., ¶20. It cites general maxims regarding pro se 

litigants, but its platitudes fail to address a defendant who 

has been denied his constitutional right to direct appeal due to 

the complete desertion of his counsel. See id., ¶25. 

¶66 Indeed, the majority conflates a willing pro se 

litigant with a criminal defendant blamelessly abandoned by 

counsel.4 If the justice system worked as it should have, Wren 

 

4 The majority further conflates the denial of the right to 

counsel on direct appeal with a postconviction motion where the 

defendant already had the benefit of a direct appeal with the 

assistance of counsel. See majority op., ¶27.
No. 2017AP880-W.awb

8

would not have been pro se in the first place. He was not pro 

se by choice, but was forced into an untenable position by his 

counsel's complete abandonment.5 

¶67 In the majority's view, "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." Id., ¶25. 

However, Wren did not "do nothing." He did what he could with 

the resources and knowledge he had.6 The fact that Wren filed 

other pro se motions on unrelated issues with the assistance of 

other inmates indicates that Wren remained engaged in his case, 

not that he had abandoned his quest to reinstate his appeal 

rights. 

¶68 Once Wren learned about petitions for a writ of habeas 

corpus, he filed one straight away. Indeed, he testified that 

he filed his habeas petition "three to four months" after 

learning that such a petition was an option available to him. 

Contrary to the suggestion of the majority, these facts do not 

paint a picture of a litigant "lay[ing] in the weeds and 

 

5 The United States Supreme Court has "long held that a 

lawyer who disregards specific instructions from the defendant 

to file a notice of appeal acts in a manner that is 

professionally unreasonable." Roe v. Flores-Ortega, 528 U.S. 

470, 477 (2000) (citations omitted). "This is so because a 

defendant who instructs counsel to initiate an appeal reasonably 

relies upon counsel to file the necessary notice." Id.

6 See Kyles, 354 Wis. 2d 626, ¶57 (rejecting the State's 

argument that Kyles' prior unsuccessful pro se attempts to seek 

relief that "were thwarted due to his lack of legal knowledge 

and the lower courts' confusion over where and how he should 

file his claims" barred a subsequent petition for habeas 

corpus).
No. 2017AP880-W.awb

9

wait[ing] to raise an issue of potential merit." See State ex 

rel. Washington v. State, 2012 WI App 74, ¶23, 343 Wis. 2d 434, 

819 N.W.2d 305; Betts v. Litscher, 241 F.3d 594, 596 (7th Cir. 

2001) ("The Constitution does not permit a state to ensnare an 

unrepresented defendant in his own errors and thus foreclose 

access to counsel."). 

¶69 I therefore conclude that Wren's delay was not 

unreasonable. Wren acted promptly upon learning the correct 

mechanism for seeking to reinstate his appeal rights and, in any 

event, as a constitutional matter, such a delay is properly 

imputed to the State in the first instance.7

B

¶70 The majority also errs in upholding the court of 

appeals' determination that the equities favor the State. 

Cautioning against "rebalancing . . . the equities in this 

court[,]" the majority concludes that the court of appeals 

"applied a proper standard of law and employed a demonstrated, 

rational process to reach a conclusion that a reasonable court 

could reach." Majority op., ¶42.

¶71 As a starting point, I do not dispute that the State 

is prejudiced by the delay that resulted from Attorney Kostich's 

 

7 The majority posits that this dissent stands for a rule 

that "Wren could wait ten, twenty, or even thirty years to raise 

his claim, regardless of any impact on the State's ability to 

address the merits of an alleged ineffective assistance claim." 

Majority op., ¶31. Nonsense. Contrary to this suggestion, this 

dissent addresses only the facts before us, and does not 

speculate as to what the result would have been if Wren had 

waited a longer period of time before filing his habeas 

petition.
No. 2017AP880-W.awb

10

abandonment of his client. If an attorney's lack of 

recollection of events coupled with the destruction of the 

attorney's files is enough to establish prejudice to the State, 

then the unavailability of an attorney for testimony due to the 

attorney's death must also be sufficient. See Washington, 343 

Wis. 2d 434, ¶25.

¶72 However, the analysis cannot end there. Even if all 

elements of laches are proven, a court still must determine, in 

its discretion, whether to apply laches and deny the petition. 

Id., ¶20. Laches is, after all, an equitable defense. Sawyer 

v. Midelfort, 227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999).

¶73 In my view, the court of appeals erroneously exercised 

its discretion by giving short shrift to the competing prejudice 

suffered by Wren. Although it is true that the State suffers 

prejudice by not being able to question Kostich, the State is 

not the only party prejudiced by Kostich's absence. See Garza 

v. Idaho, 139 S. Ct. 738, 744 (2019) (explaining that prejudice 

is presumed when a defendant is "left entirely without the 

assistance of counsel on appeal" or "when counsel's 

constitutionally deficient performance deprives a defendant of 

an appeal that he otherwise would have taken") (citations and 

internal quotations omitted). Certainly Wren would have liked 

to have Kostich on the stand just as much, if not more, than the 

State. 

¶74 Given the record indicating a complete lack of 

response from Attorney Kostich to Wren or his family members, 

Wren would have likely benefited from having Attorney Kostich on 
No. 2017AP880-W.awb

11

the stand to confirm that the attorney did nothing to pursue 

Wren's appeal. Indeed, the circuit court found as a fact that 

"Attorney Kostich intentionally led Wren and third parties 

acting on his behalf to believe that he would timely complete 

the requirements necessary for the defendant to seek 

postconviction relief, and then he failed to do so without 

notifying Wren or third parties acting on his behalf." If 

Kostich's testimony would confirm the finding that Wren asked 

Attorney Kostich to file an appeal and he simply didn't do it, 

then Wren is prejudiced to a far greater extent than is the 

State.

¶75 Giving proper weight to the prejudice to Wren, the 

equities clearly favor Wren and militate against the application 

of laches.8 Further, it was the State that denied Wren counsel 

on appeal, and it would be inequitable to now hold Wren 

accountable for the State's failing. I therefore conclude that 

the court of appeals erroneously exercised its discretion 

because it did not give the competing prejudice suffered by Wren 

the weight it is due.

¶76 For the foregoing reasons, I respectfully dissent.

¶77 I am authorized to state that Justices REBECCA GRASSL 

BRADLEY and REBECCA FRANK DALLET join this dissent.

 

8 In the majority's estimation, this conclusion represents 

an impermissible "rebalancing" of the equities. Majority op., 

¶42 n.29. Rather than "rebalancing" the scale, this dissent 

seeks to make sure that all considerations are properly on the 

scale in the first place. 
No. 2017AP880-W.awb

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