2019 WI 58 

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP203-W 

COMPLETE TITLE: State of Wisconsin ex rel. Ezequiel Lopez 

Quintero, 

 Petitioner, 

 v. 

Michael A. Dittmann, 

 Respondent. 

REVIEW OF DECISION OF THE COURT OF APPEALS 

OPINION FILED: May 29, 2019 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 12, 2018 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Kenosha 

 JUDGE: David P. Wilk 

 

JUSTICES: 

 CONCURRED: KELLY, J. concurs (opinion filed). 

 DISSENTED: ROGGENSACK, C.J. dissents, joined by ZIEGLER, J. 

(opinion filed). 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the petitioner, there were briefs filed by Gregory W. 

Wiercioch, Victor Pelaez, student practitioner, and Frank J. 

Remington Center, Madison. There was an oral argument by 

Gregory W. Wiercioch. 

For the respondent, there was a brief filed by Kara L. 

Mele, assistant attorney general, with whom on the brief was 

Brad D. Schimel, attorney general. There was an oral argument by 

Kara L. Mele. 

An amicus curiae brief was filed on behalf of Wisconsin 

Association of Criminal Defense Lawyers by Robert R. Henak and 

Henak Law Office, S.C., Milwaukee. 
2019 WI 58

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP203-W 

(L.C. No. 2007CF535) 

STATE OF WISCONSIN : IN SUPREME COURT 

State of Wisconsin ex rel. Ezequiel LopezQuintero, 

 Petitioner, 

 v. 

Michael A. Dittmann, 

 Respondent. 

FILED 

MAY 29, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Reversed and 

remanded. 

¶1 REBECCA GRASSL BRADLEY, J. We review the court of 

appeals' decision to summarily deny as untimely Ezequiel LopezQuintero's petition for habeas corpus seeking reinstatement of 

his right to file a direct appeal. Lopez-Quintero contends his 

petition satisfied all of the requirements under Wis. Stat. 

§ (Rule) 809.51 (2015-16),1 and the court of appeals erred when 

it presumed, without ordering a response from the State, that 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated. 
No. 2018AP203-W 

2 

his nine-year delay in filing his petition caused prejudice. We 

hold that neither the language of Rule 809.51 nor principles of 

equity require a habeas petitioner to allege timeliness in the 

petition. We overrule State ex rel. Smalley v. Morgan, 211 

Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997) (per curiam) 

abrogated in part by State ex rel. Coleman v. McCaughtry, 2006 

WI 49, 290 Wis. 2d 352, 714 N.W.2d 900, which imposed a "prompt 

and speedy" pleading requirement on habeas petitioners.2 We 

reverse the decision of the court of appeals and remand for 

further proceedings. 

I. BACKGROUND 

¶2 Christopher B. Cohen, an Illinois attorney who was 

also a member of the Wisconsin bar, and Frederick F. Cohn, an 

Illinois attorney who appeared pro hac vice, represented LopezQuintero. On March 7, 2008, a jury found Lopez-Quintero guilty 

 

2 The dissent contends that Coleman did not abrogate 

Smalley, but Coleman in fact did abrogate Smalley's erroneous 

enunciation of the laches test. Coleman explained: "[b]ecause 

it may be difficult to quantify 'actual prejudice,' we conclude 

that the three-element analysis of Sawyer and Prihoda provides 

the better analytic framework for assessing a laches defense 

than does the two-element analysis set out in McMillian, Smalley 

and Evans." State ex rel. Coleman v. McCaughtry, 2006 WI 49, 

¶29, 290 Wis. 2d 352, 714 N.W.2d 900 (referencing Sawyer v. 

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

Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857; State ex 

rel. McMillian v. Dickey, 132 Wis. 2d 266, 392 N.W.2d 453 (Ct. 

App. 1986); State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 

565 N.W.2d 805 (Ct. App. 1997) (per curiam); and State v. Evans, 

2004 WI 84, 273 Wis. 2d 192, 682 N.W.2d 784). 
No. 2018AP203-W 

3 

of first-degree intentional homicide and carrying a concealed 

weapon. 

¶3 On April 7, 2008, his attorneys filed a motion for a 

new trial. Two days later, the circuit court sentenced LopezQuintero to life in prison plus five years, without any 

possibility of extended supervision. During the sentencing 

hearing, one of Lopez-Quintero's attorneys discussed a possible 

appeal with the circuit court. 

[DEFENSE COUNSEL]: Number one, we have filed a 

motion for a new trial already. 

THE COURT: Yes, sir. 

[DEFENSE COUNSEL]: Would that relieve us of 

filing the notice of intent to proceed to appeal? 

THE COURT: No. I still think you have to file 

that. 

[DEFENSE COUNSEL]: Within 20 days? 

THE COURT: Right. 

¶4 The circuit court gave Lopez-Quintero's attorneys the 

"Notice of Right to Seek Postconviction Relief" form, which the 

attorneys reviewed with Lopez-Quintero, who checked the box 

indicating "I plan to seek postconviction relief." One of 

Lopez-Quintero's attorneys also signed the form and certified as 

follows: 

I have counseled the defendant about the decision to 

seek postconviction relief. I have informed the 

defendant that this decision must be made and 

communicated to me within 20 days of sentencing. I 

believe the defendant understands the right to 

postconviction relief and the 20 day time limit. I 

understand that it is my duty to file the Notice of 
No. 2018AP203-W 

4 

Intent to Pursue Postconviction Relief on behalf of 

the defendant if that intent is timely communicated to 

me. 

(Emphasis added.) At the conclusion of the sentencing hearing, 

one of Lopez-Quintero's attorneys advised he would "get that 

other document filed within 20 days." 

¶5 During the June 10, 2008 hearing on Lopez-Quintero's 

motion for a new trial, his attorneys discussed Lopez-Quintero's 

indigence and the possibility of the circuit court appointing 

them as appellate counsel. The circuit court responded it would 

"endorse [the] appointment" but expressed it did not "have the 

ability to appoint you for the appeal." Despite the expiration 

of the 20-day deadline to file the notice of intent, LopezQuintero's attorneys did not request an extension to file one. 

On the same day, the circuit court granted Lopez-Quintero's 

"Petition for Waiver of Filing and Service Fees——Affidavit of 

Indigency and Order" and allowed Lopez-Quintero to "get 

transcript of trial without payment." 

¶6 Lopez-Quintero's actions manifested his intent to 

pursue postconviction relief. However, no notice of intent was 

ever filed, and neither of Lopez-Quintero's attorneys requested 

an extension of time to file the notice of intent. 

Consequently, an appeal never occurred. 

¶7 On February 1, 2018——nearly ten years after his 

conviction——Lopez-Quintero petitioned the court of appeals for a 

writ of habeas corpus under Wis. Stat. § (Rule) 809.51; see also 
No. 2018AP203-W 

5 

State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).3 LopezQuintero, now represented by the Frank J. Remington Center at 

the University of Wisconsin Law School, alleged that his trial 

attorneys rendered ineffective assistance by failing to file a 

notice of intent within the 20-day deadline, and this deficiency 

caused his direct appeal rights to expire. Lopez-Quintero asked 

the court of appeals to "reinstate his appellate deadlines, so 

that he may pursue a direct appeal of his conviction and 

sentence." The petition alleged that Lopez-Quintero relied on 

his attorneys to pursue the appeal after he unequivocally 

indicated his intent to pursue postconviction relief by signing 

the Notice of Right to Seek Postconviction Relief form and 

checking the box indicating he intended to seek postconviction 

relief, but the petition omitted any reason for Lopez-Quintero's 

failure to file his claim for habeas relief until almost a 

decade after his appeal rights lapsed. 

¶8 The court of appeals denied Lopez-Quintero's petition 

ex parte under Wis. Stat. § (Rule) 809.51(2). State ex rel. 

Lopez-Quintero v. Dittmann, No. 2018AP203-W, unpublished order 

at 1 (Wis. Ct. App. Feb. 12, 2018). It opined that "[t]he 

 

3 "Because the circuit court is unable to provide a remedy 

for the failure to file a notice of intent to seek 

postconviction relief . . . the court of appeals is the proper 

forum for claims of ineffectiveness premised on counsel's 

failure to file a notice of intent." State ex rel. Kyles v. 

Pollard, 2014 WI 38, ¶38, 354 Wis. 2d 626, 847 N.W.2d 805. 

Accordingly, Lopez-Quintero properly filed his habeas petition, 

alleging ineffective assistance of counsel based on failure to 

file a notice of intent, in the court of appeals. 
No. 2018AP203-W 

6 

problem with Lopez-Quintero's petition is that it comes too 

late." Id. at 2. Citing Smalley, the court of appeals 

concluded that "[a]lthough Lopez-Quintero's stated limitations[4] 

can account for some delay in this case, it [sic] cannot account 

for over nine years of delay. Accordingly, we are not persuaded 

that he sought habeas relief in a timely fashion and will deny 

the petition for that reason." Lopez-Quintero, No. 2018AP203-W, 

unpublished order at 2-3. 

¶9 Lopez-Quintero filed a motion for reconsideration, 

asking the court of appeals "to reconsider its decision and 

refrain from denying Mr. Lopez-Quintero's legally-sufficient 

petition ex parte" or "[a]t the very least . . . order the State 

to respond, and apply Coleman if the State raises the 

affirmative defense of laches." Under Coleman, "[t]he State has 

the burden of proof in regard to all the elements of its laches 

defense" therefore "the court of appeals erred when it assumed 

the State was prejudiced by Coleman's unreasonable delay." 

Coleman, 290 Wis. 2d 352, ¶¶2, 37. The court of appeals denied 

the motion, and Lopez-Quintero petitioned this court for review, 

which we granted. 

 

4 In his petition to the court of appeals for a writ of 

habeas corpus, Lopez-Quintero asserted he did not speak English 

and was unfamiliar with the American criminal justice system, 

which we presume to be the "stated limitations" the court of 

appeals referenced in its ex parte denial of the petition. 
No. 2018AP203-W 

7 

II. ANALYSIS 

¶10 While habeas relief may be denied under the wellestablished doctrine of laches if a petitioner unreasonably 

delays the filing of his petition, this case resolves whether 

the court of appeals may deny an otherwise sufficiently pled 

habeas petition ex parte, without a hearing or a response from 

the State, solely because the court of appeals deems it to be 

untimely. We hold that the court of appeals may not deny a 

habeas petition ex parte on the ground the petitioner failed to 

demonstrate he sought relief in a prompt and speedy manner. We 

overrule Smalley. Any equitable concerns regarding substantial 

delays, such as the near ten-year delay in the current case, are 

properly raised not sua sponte by the court of appeals but 

instead by the State asserting the defense of laches and 

establishing prejudice resulting from the delay.5

A. Standard of Review 

¶11 We review the legal issues arising out of a habeas 

petition independently. Coleman, 290 Wis. 2d 352, ¶17. This 

case requires us to interpret Wis. Stat. § (Rule) 809.51, which 

 

5 The dissent misapprehends this court's rather limited 

holding, which simply requires the State to respond to the 

petition, after which the court of appeals will decide whether 

to grant it or not, considering any equitable defenses the State 

may assert. Contrary to the dissent's characterization of this 

opinion, we do not engage in any factfinding and the petitioner 

retains the burden of proving the allegations in his petition. 

The court of appeals denied him the opportunity to do so based 

on Smalley's misstatement of applicable law. 
No. 2018AP203-W 

8 

presents a question of law. See State v. Ziegler, 2012 WI 73, 

¶37, 342 Wis. 2d 256, 816 N.W.2d 238. 

B. General Legal Principles 

¶12 "A petition for writ of habeas corpus commences a 

civil proceeding wherein the petitioner claims an illegal denial 

of his or her liberty." Coleman, 290 Wis. 2d 352, ¶18. Often 

referred to as the "Great Writ," habeas corpus "indisputably 

holds an honored position in our jurisprudence." Engle v. 

Isaac, 456 U.S. 107, 126 (1982). Its roots spring from English 

common law, and "its availability is guaranteed by the U.S. 

Constitution, the Wisconsin Constitution, and by state and 

federal statute." State ex rel. Marberry v. Macht, 2003 WI 79, 

¶22, 262 Wis. 2d 720, 665 N.W.2d 155 (quoting State ex rel. Haas 

v. McReynolds, 2002 WI 43, ¶11, 252 Wis. 2d 133, 643 

N.W.2d 771); see also State ex rel. L'Minggio v. Gamble, 2003 WI 

82, ¶17, 263 Wis. 2d 55, 667 N.W.2d 1; Wis. Stat. § 782.01(1) 

("Every person restrained of personal liberty may prosecute a 

writ of habeas corpus to obtain relief from such restraint 

subject to [Wis. Stat. §§] 782.02 and 974.06."). 

¶13 The Great Writ constitutes "a bulwark against 

convictions that violate 'fundamental fairness.'" Engle, 456 

U.S. at 126 (quoted source omitted). Founded on principles of 

equity, habeas corpus "test[s] the right of a person to his 

personal liberty." Marberry, 262 Wis. 2d 720, ¶22 (quoted 

source omitted; alteration in original). "The purpose of the 

writ is to protect and vindicate the petitioner's right to be 

free from illegal restraint." Id.; see also State ex rel. 
No. 2018AP203-W 

9 

Zdanczewicz v. Snyder, 131 Wis. 2d 147, 151, 388 N.W.2d 612 

(1986). "Its function is to provide a prompt and effective 

judicial remedy to those who are illegally restrained of their 

personal liberty." State ex rel. Wohlfahrt v. Bodette, 95 

Wis. 2d 130, 133, 289 N.W.2d 366 (Ct. App. 1980). 

¶14 However, "[t]he extraordinary relief provided by the 

writ of habeas corpus is available only in limited 

circumstances," and the writ "does not issue as a right." 

Marberry, 262 Wis. 2d 720, ¶¶23, 25 (quoted source omitted). A 

party seeking habeas relief must be restrained of his liberty 

and "show that the restraint was imposed by a body without 

jurisdiction or that the restraint was imposed contrary to 

constitutional protections." Haas, 252 Wis. 2d 133, ¶12. 

Additionally, the party "must show that there was no other 

adequate remedy available in the law." Id.; see also Waley v. 

Johnston, 316 U.S. 101, 105 (1942) (extending the use of the 

writ "to those exceptional cases where the conviction has been 

in disregard of the constitutional rights of the accused, and 

where the writ is the only effective means of preserving his 

rights."). 

We have long and consistently held that the 

extraordinary writ of habeas corpus is not available 

to a petitioner when the petitioner has other adequate 

remedies available. For instance, habeas corpus is 

not available to challenge a bindover decision by a 

court commissioner because the decision is 

challengeable on a statutory motion to dismiss. 

Similarly, the writ is not available to challenge the 

sufficiency of probable cause to issue a criminal 

complaint, even when the challenge is brought between 

arrest and the preliminary hearing, because the 
No. 2018AP203-W 

10 

challenge can be made using other remedies at trial. 

Habeas corpus proceedings are likewise not available 

to challenge an administrative order revoking 

probation, since a writ of certiorari is available, 

and is the proper remedy under such circumstances. In 

short, if the petitioner has an otherwise adequate 

remedy that he or she may exercise to obtain the same 

relief, the writ will not be issued. 

Marberry, 262 Wis. 2d 720, ¶25 (quoting Haas, 252 Wis. 2d 133, 

¶14). Ultimately, "the burden is on the petitioner . . . to 

demonstrate by a preponderance of the evidence that his 

detention is illegal." State ex rel. Hager v. Marten, 226 

Wis. 2d 687, 694, 594 N.W.2d 791 (1999). 

¶15 A habeas petition filed in the court of appeals under 

Wis. Stat. § (Rule) 809.51(1) "must contain a statement of the 

legal issues and a sufficient statement of facts that bear on 

those legal issues, which if found to be true, would entitle the 

petitioner to relief." Coleman, 290 Wis. 2d 352, ¶18. The 

statute provides: 

(1) A person may request the court to exercise 

its supervisory jurisdiction or its original 

jurisdiction to issue a prerogative writ over a court 

and the presiding judge, or other person or body, by 

filing a petition and supporting memorandum. . . . The 

petition shall contain: 

(a) A statement of the issues presented by the 

controversy; 

(b) A statement of the facts necessary to an 

understanding of the issues; 

(c) The relief sought; and 

(d) The reasons why the court should take 

jurisdiction. 
No. 2018AP203-W 

11 

Rule 809.51(1).6 Subsection (2) provides the "court may deny the 

petition ex parte or may order the respondents to file a 

response with a supporting memorandum, if any, and may order 

oral argument on the merits of the petition." Rule 809.51(2). 

¶16 As the respondent, the State may assert equitable 

defenses such as laches in opposing a habeas petition.7 "Laches 

is an equitable defense to an action based on the plaintiff's 

unreasonable delay in bringing suit under circumstances in which 

such delay is prejudicial to the defendant." Sawyer v. 

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

application of laches to bar habeas petitions is wellestablished. See Coleman, 290 Wis. 2d 352, ¶¶2, 19-25. 

Although our courts have described the elements of laches in 

various ways, we concluded in Coleman that the three-element 

test described in some of our cases "provides the better 

analytic framework for assessing a laches defense." Id., ¶29. 

 

6 The dissent would rewrite the statute to additionally 

require a habeas petitioner who claims his appeal rights were 

denied to allege "when, where or how [he] specifically directed 

his trial counsel to appeal." Dissent, ¶58. This heightened 

"when, where or how" pleading requirement does not appear in the 

text of the statutes or in any Wisconsin cases. 

7 Although Michael A. Dittmann, the warden of the 

correctional facility where Lopez-Quintero is confined, is the 

respondent in this case, see Wis. Stat. § 782.01 ("'respondent' 

means the person on whom the writ is to be served"), the 

Wisconsin Department of Justice represents Dittmann and responds 

to the petition; therefore, we reference the respondent as the 

"State." See e.g., Coleman, 290 Wis. 2d 352, ¶¶13-15, 31-37 

(generally referring to the respondent as the State). 
No. 2018AP203-W 

12 

Under Coleman, the elements of the defense of laches are: (1) 

unreasonable delay in filing the habeas petition, (2) lack of 

knowledge on the part of the State that the petitioner would be 

asserting the habeas claim, and (3) prejudice to the State. 

Id., ¶¶28-29. As the party asserting the defense, the State 

bears the burden to raise and prove all elements of the defense. 

Id., ¶2. 

C. Application 

¶17 The sole issue presented is whether the court of 

appeals may deny a habeas petition ex parte for the petitioner's 

failure to plead that his claim was brought in a timely manner. 

We conclude it may not. Lopez-Quintero's habeas petition was 

sufficiently pled in accordance with the statutory 

prescriptions. The petition contained a "statement of the legal 

issues and a sufficient statement of facts [bearing] on those 

legal issues, which if found to be true, would entitle [LopezQuintero] to relief." See Coleman, 290 Wis. 2d 352, ¶18. 

Lopez-Quintero's petition alleges that he communicated his 

desire to seek postconviction relief by indicating his intent 

"to seek postconviction relief" on the Notice of Right to Seek 

Postconviction Relief form, which his attorney also signed, 

explicitly acknowledging the attorney's "duty to file the Notice 
No. 2018AP203-W 

13 

of Intent to Pursue Postconviction Relief."8 See Wis. Stat. 

§ 973.18(5) (explaining that "[i]f the defendant desires to 

 

8 The dissent misjudges Lopez-Quintero's habeas petition as 

insufficient because he did not allege making "a specific 

request of counsel to appeal" and accuses the court of "adding 

facts to the petition" to cure the petition's purported 

deficiency. Dissent, ¶¶50-51. The dissent is wrong on both 

counts. Lopez-Quintero checked the box on the Notice of Right 

to Seek Postconviction Relief form indicating "I plan to seek 

postconviction relief." He did not check either of the two 

other options on the form: "I do not plan to seek 

postconviction relief" or "I am undecided about seeking 

postconviction relief and I know I need to decide and tell my 

lawyer within 20 days." One of Lopez-Quintero's attorneys 

signed this form and acknowledged his responsibility to file a 

notice of intent to pursue postconviction relief in accordance 

with Lopez-Quintero's unequivocal wishes. Because LopezQuintero explicitly indicated his intent to pursue 

postconviction relief, his attorneys were obligated to file a 

notice of intent to pursue postconviction relief under Wis. 

Stat. § (Rule) 809.30(2)(b). See Wis. Stat. § 973.18(5). This 

notice was a prerequisite to any postconviction relief, 

including an appeal. Rule 809.30(2)(a)-(b). The attorneys' 

inaction in response to Lopez-Quintero's specific instruction to 

file the notice of intent under Rule 809.30(2)(b) resulted in 

the "complete denial of appeal," and prejudice is therefore 

"presumed." See State ex rel. Flores v. State, 183 Wis. 2d 587, 

620, 516 N.W.2d 362 (1994). It is this "forfeiture of a 

proceeding"——here, an appeal——and the "complete denial of 

counsel" that carries the presumption of prejudice. See Roe v. 

Flores-Ortega, 528 U.S. 470, 483 (2000). It is immaterial that 

Lopez-Quintero indicated his intent to seek "postconviction 

relief" rather than specifying he wished to appeal; his 

attorneys' inaction resulted in the complete denial of any 

postconviction proceedings——including an appeal. 

(continued) 
No. 2018AP203-W 

14 

pursue postconviction relief, the defendant's trial counsel 

shall file" the notice of intent to pursue postconviction 

relief). The petition further alleges that he relied on his 

attorneys to file the notice of intent to pursue postconviction 

relief, which is a precondition to pursuing an appeal. See Wis. 

Stat. § (Rule) 809.30(2)(a)-(b). Lopez-Quintero's attorneys 

 

The dissent also faults Lopez-Quintero for failing to 

explain "why an appeal was not pursued" and speculates that 

"[p]erhaps after denial of the motion for a new trial, counsel 

and Lopez-Quintero decided an appeal would not be worth 

pursuing." Dissent, ¶54. The dissent quotes Flores-Ortega, 528 

U.S. at 486 for the proposition that "evidence that [a 

defendant] sufficiently demonstrated to counsel his interest in 

an appeal . . . is insufficient to establish that, had the 

defendant received reasonable advice from counsel about the 

appeal, he would have instructed his counsel to file an appeal." 

Dissent, ¶44. But the quoted language in Flores-Ortega did not 

address Lopez-Quintero's situation, in which his attorneys 

disregarded his instructions to file a notice of intent to 

pursue postconviction relief thereby depriving him of his right 

to appeal, which has long been held to constitute ineffective 

assistance of counsel. See Flores, 183 Wis. 2d at 620 

("[W]henever the ineffective assistance is such as to deprive 

one totally of the right to appeal, the prejudice showing is 

presumed."); see also Flores-Ortega, 528 U.S. at 483 (explaining 

that deficient performance leading to the forfeiture of a 

judicial proceeding is presumed to be prejudicial). Instead, 

Flores-Ortega considered whether counsel was "deficient for not 

filing a notice of appeal when the defendant has not clearly 

conveyed his wishes one way or the other." Flores-Ortega, 528 

U.S. at 477 (emphasis added). Because Lopez-Quintero's petition 

alleged that he clearly communicated his desire to pursue 

postconviction relief to his attorneys, the dissent's 

speculation about why an appeal was never filed is irrelevant. 

Lopez-Quintero's allegations, if proved, would establish 

ineffective assistance of counsel. See Flores, 183 Wis. 2d at 

620. 
No. 2018AP203-W 

15 

failed to do so, depriving him of any opportunity to appeal.9 

Trial counsel's "failure to perfect an appeal when the defendant 

has indicated a desire to appeal constitutes ineffective 

assistance of counsel." See State ex rel. Flores v. State, 183 

Wis. 2d 587, 615, 516 N.W.2d 362 (1994) (quoted source omitted). 

Whenever ineffective assistance of counsel results in the 

"complete denial of appeal, prejudice is presumed." Id. at 620; 

see also Garza v. Idaho, 139 S. Ct. 738, 744 (2019) (explaining 

that "prejudice 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)); Flores-Ortega, 528 U.S. at 477 

(explaining that "[w]e have 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," and "'[w]hen counsel fails to file a requested 

 

9 The dissent faults Lopez-Quintero for failing to attach an 

"affidavit" or a "transcript from an evidentiary hearing" to 

support his claim. Dissent, ¶39. No law supports the 

proposition that such evidentiary materials are necessary to 

plead a habeas claim. Under the law governing habeas pleading 

requirements, the defendant must allege sufficient facts "which 

if found to be true, would entitle the petitioner to relief." 

See Coleman, 290 Wis. 2d 352, ¶18 (emphasis added). Contrary to 

the dissent's view of the case, we are at the pleading stage; 

Lopez-Quintero submitted a sworn petition for habeas corpus 

attesting that the facts alleged in the petition (including the 

attachments) were "true and correct." See Wis. Stat. § 782.04 

(a petition for habeas corpus "must be verified"). The 

additional evidentiary materials listed by the dissent may, in 

some cases, be necessary to prove a habeas claim, but they are 

not necessary to plead the claim. 
No. 2018AP203-W 

16 

appeal, a defendant is entitled to [a new] appeal without 

showing that his appeal would likely have had merit'" (quoted 

source omitted; third alteration in original)); Strickland v. 

Washington, 466 U.S. 668, 692 (1984) ("Actual or constructive 

denial of the assistance of counsel altogether is legally 

presumed to result in prejudice."); Castellanos v. United 

States, 26 F.3d 717, 718 (7th Cir. 1994) (explaining that "[i]f 

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," which is a "per se violation of the sixth amendment"). 

Because a habeas petitioner need not plead that his petition was 

filed in a timely manner, we reverse the court of appeals' 

decision denying Lopez-Quintero's statutorily-compliant petition 

and remand for further proceedings. 

¶18 We begin with an analysis of Wis. Stat. § (Rule) 

809.51. Subsection (1) describes what the petitioner must 

allege in the petition. While the statute requires the 

petitioner to provide a statement of the issues, a statement of 

facts, the relief sought, and the reasons the court should take 

jurisdiction, see Rule 809.51(1)(a)-(d), it does not impose any 

time limit on when a petition may be brought. Id. Subsection 

(2) describes what the court of appeals may do upon receipt of 

the petition. It may deny the petition ex parte or order a 

response, and it may order oral argument on the merits. Rule 
No. 2018AP203-W 

17 

809.51(2). Lack of timeliness is not listed as a basis for 

denying a petition ex parte.10 The statute does not impose any 

deadline within which a petitioner must bring a habeas petition. 

In the absence of language imposing a time limit on filing a 

petition for the court of appeals to issue a writ of habeas 

corpus, we will not read one into the statute.11 Under the 

omitted-case canon of statutory interpretation, "[n]othing is to 

be added to what the text states or reasonably implies (casus 

omissus pro omisso habendus est). That is, a matter not covered 

is to be treated as not covered." Antonin Scalia & Bryan A. 

Garner, Reading Law: The Interpretation of Legal Texts 93 

(2012); see also Wisconsin Ass'n of State Prosecutors v. WERC, 

2018 WI 17, ¶45, 380 Wis. 2d 1, 907 N.W.2d 425 ("Nothing is to 

be added to what the text states or reasonably implies" (quoting 

Scalia & Garner, Reading Law at 93)). "One of the maxims of 

statutory construction is that courts should not add words to a 

statute to give it a certain meaning." Fond Du Lac Cty. v. Town 

 

10 Subsection (3) authorizes the court of appeals to grant 

or deny the petition after considering the petition, responses, 

supporting memoranda, and argument, and subsection (4) requires 

a statement identifying compliance with certain formatting 

requirements for the petition. Wis. Stat. § (Rule) 809.51(3), 

(4). 

11 We already implicitly recognized the absence of a 

statutory time limit in Coleman. We explained that, in this 

respect, Wisconsin's rules on state habeas claims differ from 

the federal rules, which provide that relief "is available to a 

state prisoner for only one year after the state conviction 

becomes final." See Coleman, 290 Wis. 2d 352, ¶24 n.5. 

Wisconsin's rules contain no such limit. Id. 
No. 2018AP203-W 

18 

of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 

1989). Therefore, if habeas petitioners are subject to any sort 

of timeliness requirement, it must derive from a different 

source. 

¶19 The State maintains that the court of appeals properly 

denied Lopez-Quintero's habeas petition ex parte. It appears to 

concede that Wis. Stat. § (Rule) 809.51 contains no timeliness 

requirement, but it emphasizes that the statute "does not 

purport to provide a comprehensive treatment of the issue of 

extraordinary writs" and therefore does not foreclose the 

imposition of a timeliness requirement as a matter of equity. 

The State grounds its argument in Smalley, which denied a habeas 

petition ex parte for failing to allege facts demonstrating that 

the petitioner sought prompt and speedy relief. Smalley, 211 

Wis. 2d at 801-02. The State insists that Lopez-Quintero has 

not shown that Smalley is objectively wrong; therefore, the 

State argues, we should reject his invitation to overrule it. 

We disagree and overrule Smalley. 

¶20 In Smalley, the court of appeals denied a habeas 

petition ex parte because the petitioner "did not timely file 

his petition." Smalley, 211 Wis. 2d at 796. Because "[t]he 

purpose of habeas corpus is 'to provide a prompt and effective 

judicial remedy to those who are illegally restrained of their 

personal liberty,'" the court of appeals held that Wis. Stat. 

§ (Rule) 809.51(1) requires a habeas petitioner to "allege facts 

[in the petition] demonstrating that he sought prompt and speedy 

relief." Smalley, 211 Wis. 2d at 802 (quoting Wohlfahrt, 95 
No. 2018AP203-W 

19 

Wis. 2d at 133). The court of appeals did not attempt to 

justify this new pleading requirement under the text of Rule 

809.51(1), which contains no such requirement. Instead, the 

court of appeals invoked the principles of equitable estoppel 

and laches, which it used to read a timeliness requirement into 

Rule 809.51(1). Smalley, 211 Wis. 2d at 800. It further 

reasoned that "[e]quitable remedies are not available to one 

whose own actions or inactions result in the harm." Id. (quoted 

source omitted). Without any analysis, but merely highlighting 

the length of the delay, the court of appeals concluded the 

State was prejudiced by the "untimely habeas petition." Id. at 

803. The court of appeals did, however, clarify that "[w]hether 

a defendant's claim is made within a reasonable time must be 

evaluated on a case-by-case basis." Id. at 802. 

¶21 Smalley's imposition of a "prompt and speedy" pleading 

requirement for habeas claims is unsupported either by the 

statutory text or Wisconsin cases. The equitable cases cited in 

Smalley offer no support for its extra-textual conclusion that 

Wis. Stat. § (Rule) 809.51(1) imposes a burden on habeas 

petitioners to allege that they sought relief in a "prompt and 

speedy" manner or risk their petitions being denied ex parte 

under Rule 809.51(2). Under the doctrine of laches, it is the 

State, not the petitioner, who bears the burden to show laches 

should be applied to bar a habeas petition. Indeed, in Coleman 

we recognized the weakness of Smalley's reliance on laches to 

deny a habeas petition ex parte, thereby relieving the State of 

its burden to establish the elements of that affirmative 
No. 2018AP203-W 

20 

defense, when we remarked that Smalley "conflated its analysis 

of the habeas petition's timeliness with the unreasonable delay 

element of laches." Coleman, 290 Wis. 2d 352, ¶25 (footnote 

omitted).12 In a similar vein, equitable estoppel in this 

context is a defense to be raised by the State, and "[t]he 

burden of proving the elements of equitable estoppel is on the 

party asserting it as a defense." See Coconate v. Schwanz, 165 

Wis. 2d 226, 231-32, 477 N.W.2d 74 (Ct. App. 1991). Neither 

 

12 Certain language in Coleman suggests that the timeliness 

of a habeas petition is a factor to be considered "under the 

principles that we have set for evaluating habeas petitions." 

Coleman, 290 Wis. 2d 352, ¶25 n.6. The court in Coleman 

proceeded to explain that "[t]he foundation for the decision in 

Smalley becomes readily apparent when the decision places the 

burden of proof for timeliness of the petition on Smalley, which 

is in accord with reviewing timeliness in regard to a habeas 

petition." Coleman, 290 Wis. 2d 352, ¶25. Coleman, however, 

never identifies the source for the purported timeliness 

requirement. Other than this unsupported language from Coleman, 

we discovered no basis in law or equity for the proposition that 

a timeliness requirement inheres in habeas petitions and the 

State in this case identifies none. Indeed, the State 

recognized that only "[s]ince Smalley" has "this 

Court . . . acknowledged that a petitioner seeking a writ of 

habeas corpus under Wis. Stat. § (Rule) 809.51 has the burden of 

proof to show the timeliness of his petition." While timeliness 

must be shown by a party seeking a supervisory writ, see State 

ex rel. CityDeck Landing LLC v. Circuit Court for Brown Cty., 

2019 WI 15, ¶30, 385 Wis. 2d 516, 922 N.W.2d 832, it never was a 

prerequisite for a habeas petition, until Smalley mistakenly 

imported the concept into Rule 809.51. Perhaps Coleman's stray 

references to "reviewing timeliness in regard to a habeas 

petition" derive from the "prompt and speedy" factor that must 

be shown by petitioners seeking supervisory writs; the decision 

does not say. Regardless, the only source for shifting the 

burden of proof to the habeas petitioner to show timeliness is 

Smalley, which erroneously conjured this requirement from a 

statute that is entirely silent on the subject. 
No. 2018AP203-W 

21 

doctrine provides any foundation for denying a habeas petition 

ex parte on the basis that the petitioner failed to allege the 

petition was made within a reasonable time. Any equitable 

defense to a habeas petition must be raised and proven by the 

State, which cannot be done unless the State is required to 

respond to the petition. 

¶22 Smalley's reliance on the general principle that 

"[e]quitable remedies are not available to one whose own actions 

or inactions result in the harm" is a similarly unpersuasive 

justification for its "prompt and speedy" pleading requirement. 

The quoted precept came from Lohr v. Viney, 174 Wis. 2d 468, 

477, 497 N.W.2d 730 (Ct. App. 1993), in connection with that 

court's application of equitable estoppel. See Smalley, 211 

Wis. 2d at 800. Setting aside the unavailability of equitable 

estoppel to deny a habeas petition ex parte, Smalley's reliance 

on this language begs the question of what "harm" the petitioner 

caused. Smalley assumed, with little analysis and no response 

by the State, that mere delay (which the court of appeals 

unilaterally deemed unreasonable) necessarily harmed, or 

prejudiced, the State. Smalley, 211 Wis. 2d at 803. There is 

no legal footing for this presumption, which led us to reject a 

similar presumption in Coleman. The court of appeals in 

Coleman, as in Smalley, put the cart before the horse by 

concluding the State was prejudiced by the petitioner's delay in 

seeking habeas relief, without requiring the State to first 

assert unreasonable delay and then prove it prejudiced the 

State. As we observed in Coleman, delay does not automatically 
No. 2018AP203-W 

22 

prejudice the State, which must not only allege prejudice but 

then prove a factual basis for it. Coleman, 290 Wis. 2d 352, 

¶36. 

¶23 Smalley manufactured the requirement that a habeas 

petitioner must prove his petition was "prompt and speedy," a 

precondition not found in Wis. Stat. § (Rule) 809.51(1) or the 

equitable cases the court cited.13 Although Coleman recognized 

that Smalley confused laches with pleading requirements, it 

overlooked Smalley's mistaken application of Wohlfahrt, which 

understood that the "function" of habeas corpus "is to provide a 

prompt and effective judicial remedy to those who are illegally 

restrained of their personal liberty." Wohlfahrt, 95 Wis. 2d at 

133. Smalley turned this purpose for habeas on its head. 

Rather than safeguarding the liberty interests of a petitioner 

who was illegally restrained, Smalley misused this language to 

 

13 The dissent cites State ex rel. Kalal v. Circuit Court 

for Dane Cty., 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110 

for the proposition that a habeas petitioner "must show that 

'the request for relief [was] made promptly and speedily." 

Dissent, ¶45. Kalal's application of the longstanding "prompt 

and speedy" requirement applies to supervisory writs, not writs 

of habeas corpus. See Kalal, 271 Wis. 2d 633, ¶17. The dissent 

confuses the two. Compare id. (supervisory writ will not be 

granted unless "(1) an appeal is an inadequate remedy; (2) grave 

hardship or irreparable harm will result; (3) the duty of the 

trial court is plain and it must have acted or intends to act in 

violation of that duty; and (4) the request for relief is made 

promptly and speedily") with State ex rel. Haas v. McReynolds, 

2002 WI 43, ¶12, 252 Wis. 2d 133, 643 N.W.2d 771 (habeas corpus 

is available where a party is restrained of his liberty, the 

restraint was imposed by a body without jurisdiction or contrary 

to constitutional protections, and there is no other adequate 

remedy at law). 
No. 2018AP203-W 

23 

instead protect the State by imposing a requirement on the 

petitioner to plead that he sought relief in a prompt and speedy 

manner.14 Nothing in the language lifted from Wohlfahrt supports 

this application. 

¶24 With no statutory or common law basis for Smalley's 

"prompt and speedy" pleading requirement, we decline to impose 

one. Equity cannot be advanced by denying a statutorilycompliant habeas petition solely because an appellate court 

deems it to be filed too late, absent the State showing that the 

delay prejudiced it. As implicitly reflected in the elements of 

the test for laches, numerous factors may influence the 

determination of whether it is equitable to bypass the merits of 

a claim on the basis of unreasonable delay. See e.g., Coleman, 

290 Wis. 2d 352, ¶29 (explaining that "assessing whether a party 

raising laches did not have knowledge that the claim would be 

brought will permit the circuit court to more fully" evaluate 

"the effect of a claim that has been unreasonably delayed." 

(emphasis added)). Such considerations cannot be fully vetted 

by an ex parte review of the petition. 

 

14 Smalley quoted Wohlfahrt for the proposition that "[t]he 

purpose of habeas corpus 'is to provide a prompt and effective 

judicial remedy to those who are illegally restrained of their 

personal liberty,'" and concluded in the next two sentences that 

"Smalley's petition does not allege facts demonstrating that he 

sought prompt and speedy relief" and "[s]uch a showing is 

required." Smalley, 211 Wis. 2d at 802 (quoting State ex rel. 

Wohlfahrt v. Bodette, 95 Wis. 2d 130, 133, 289 N.W.2d 366 (Ct. 

App. 1980)). 
No. 2018AP203-W 

24 

¶25 The parties' differing accounts of the near-ten-year 

delay in the filing of Lopez-Quintero's petition illustrate why 

the myriad of facts that could bear on whether it is equitable 

to bar Lopez-Quintero's statutorily-compliant habeas petition 

cannot be fully addressed in an ex parte denial. The State 

accuses Lopez-Quintero of sleeping on his rights. While 

conceding, as the court of appeals did, that his "stated 

limitations account for some delay in this case," the State 

insists that "Lopez-Quintero's lack of English proficiency, lack 

of education, and lack of familiarity with Wisconsin's criminal 

justice system" do not account for all of the delay. 

¶26 Lopez-Quintero describes in his brief to this court 

multiple reasons for his delay in seeking habeas relief.15 In 

addition to asserting in his verified habeas petition linguistic 

impediments, limited education, and unfamiliarity with the 

criminal justice system, Lopez-Quintero delineates in his brief 

a procedural history that he claims explains the delay. We do 

not recount, accept as true, or rely upon Lopez-Quintero's 

assertions concerning his reasons for filing his habeas petition 

nearly ten years after his appeal rights expired. His account 

 

15 The State protests that the petition itself did not 

include the specific reasons for the delay in seeking habeas 

relief that Lopez-Quintero now presents to this court. Because 

we conclude that the law does not require habeas petitioners to 

allege timeliness in their petitions, the purported 

insufficiency or even the total absence of any explanation in 

the petition for Lopez-Quintero's delay in filing it is 

irrelevant. 
No. 2018AP203-W 

25 

is immaterial to the issue we decide. We merely highlight that 

the court of appeals never fully addressed the equitable 

considerations related to the timing of the habeas petition——

which would include Lopez-Quintero's proffered reasons for the 

delay——because it dismissed the petition ex parte. LopezQuintero's articulated reasons for his delay in filing his 

habeas petition are properly considered after the State's 

assertion of laches in response to the petition, not before. 

¶27 The State worries that declining to impose a 

timeliness requirement for pleading habeas claims undermines the 

finality of judgments and would allow "a petitioner [to] seek a 

writ of habeas corpus 50 years after his conviction." The 

State's fears are unfounded. Laches provides a process to 

balance the State's concerns regarding the prejudice it could 

suffer in being forced to respond to decades-old claims, as well 

as the State's interest in the finality of judgments, against 

the Great Writ's protection of constitutional rights.16 

Consistent with our previous decisions, Lopez-Quintero's habeas 

petition, or any other, may be barred if the State successfully 

argues laches. The burden to demonstrate why a statutorilycompliant claim for habeas relief should be denied as untimely 

 

16 Laches similarly provides the process to address the 

dissent's complaint that "it did not take Lopez-Quintero ten 

years to figure out that no appeal was pending." Dissent, ¶56. 

Equitable concerns about the near ten-year delay must be 

addressed after hearing both sides, not in a perfunctory ex 

parte dismissal. 
No. 2018AP203-W 

26 

rests with the party seeking to avoid a substantive review of 

the issue. Coleman, 290 Wis. 2d 352, ¶2 ("The State has the 

burden of proof in regard to all the elements of its laches 

defense.") If Lopez-Quintero's delay was unreasonable, the 

State did not know Lopez-Quintero would bring the claim, and the 

delay prejudiced the State, then the claim may be barred. See 

id., ¶17 (explaining that once "the defense of laches is proved, 

whether to apply laches and dismiss the habeas petition is left 

to the discretion of the court of appeals"). It is the State 

who bears the burden of proving the elements of laches. 

¶28 A petition for habeas corpus constitutes the final 

opportunity for an individual restrained of his personal liberty 

to establish that the State's action against him violated our 

constitutions or other law, after all other avenues for relief 

are exhausted or shown to be inadequate. Habeas is the people's 

bulwark against illegal confinement by the government. Bearing 

in mind that "the overriding responsibility of [the Supreme] 

Court is to the Constitution of the United States" and of this 

court, to the Wisconsin Constitution as well, "no matter how 

late it may be that a violation of the Constitution is found to 

exist,"17 the court of appeals cannot forever foreclose an 

individual's appellate rights, ex parte and on the basis of 

untimeliness, when his attorneys failed to file the form 

necessary to initiate the appeal he requested. Absent a 

demonstration of prejudice by the State, a habeas petition may 

 

17 See Chessman v. Teets, 354 U.S. 156, 165 (1957). 
No. 2018AP203-W 

27 

not be denied merely because it was filed later than the court 

of appeals believes it should have been. 

III. CONCLUSION 

¶29 We hold that neither Wis. Stat. § (Rule) 809.51 nor 

equity imposes a "prompt and speedy" pleading requirement in the 

filing of a petition for habeas corpus. The equitable defense 

of laches exists to address any prejudice to the State caused by 

a petitioner's unreasonable delay in the filing of a habeas 

petition. A habeas petition may not be denied ex parte solely 

because the petitioner failed to assert and demonstrate he 

sought relief in a "prompt and speedy" manner. Instead, the 

State bears the burden to raise laches as a defense and prove 

(1) unreasonable delay, (2) lack of knowledge that the 

petitioner would bring a habeas claim, and (3) resulting 

prejudice. The State did not do so here because the court of 

appeals erred in denying the petition ex parte without giving 

the State the opportunity to respond and prove laches. 

¶30 We recognize that "habeas corpus should not be 'made 

the instrument for re-determining the merits of all cases in the 

legal system that have ended in detention.'" Rose v. Mitchell, 

443 U.S. 545, 581 (1979) (Powell, J., concurring in the 

judgment; quoted source omitted). Our decision is a narrow one 

and we make no assessment of the merits of Lopez-Quintero's 

petition, much less the merits of his appeal should the court of 

appeals reinstate his appellate deadlines; we merely recognize 

his right to have his statutorily-compliant petition considered 

without the court of appeals imposing a non-existent timeliness 
No. 2018AP203-W 

28 

requirement as a basis for denying the petition ex parte.18 

Accordingly, we reverse the decision denying Lopez-Quintero's 

petition for habeas corpus and remand to the court of appeals 

for further proceedings on the petition. 

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

reversed and remanded. 

 

18 The court of appeals retains the discretion to otherwise 

deny habeas petitions ex parte on any grounds available under 

the law. See Wis. Stat. § (Rule) 809.51(2). Puzzlingly, the 

dissent asserts that the court "never says why the court of 

appeals erroneously exercised the discretion the legislature 

granted to it." Dissent, ¶63. Of course, the entirety of this 

opinion explains why the court of appeals erred, although we 

recognize it relied on unsound cases it was bound to apply. The 

dissent seemingly equates "discretion" with "whim" but of course 

the exercise of a court's discretion must be grounded in the 

law, and as we have explained in some detail, ex parte denial of 

a habeas petition for untimeliness bears no support in law or 

equity. See State v. Avery, 2013 WI 13, ¶23, 345 Wis. 2d 407, 

826 N.W.2d 60 (court of appeals "erroneously exercises its 

discretion when it applies the wrong legal standard"); State v. 

Martel, 2003 WI 70, ¶8, 262 Wis. 2d 483, 664 N.W.2d 69 

(explaining that "a discretionary decision that is based upon an 

error of law is an erroneous exercise of discretion"); see also 

State ex rel. Singh v. Kemper, 2016 WI 67, ¶25, 371 Wis. 2d 127, 

883 N.W.2d 86 ("Whether a writ of habeas corpus is available to 

the party seeking relief is a question of law that we review 

independently of the determinations rendered by the circuit 

court and the court of appeals."). 
No. 2018AP203-W.dk 

1 

¶31 DANIEL KELLY, J. (concurring). We have previously 

suggested that a habeas petitioner must allege facts supporting 

the petition's timeliness (see State ex rel. Coleman v. 

McCaughtry, 2006 WI 49, ¶25, 290 Wis. 2d 352, 714 N.W.2d 900), 

which I believe is a good and prudent safeguard against abuse of 

this writ; but Coleman does not establish the timeliness element 

with clarity, and rather than announcing such an element in a 

contested case, I believe we should follow the federal court's 

example of adopting the requirement through rulemaking (see Fed. 

R. App. P. 9(a)). With that caveat, I join the court's opinion. 
No. 2018AP203-W.pdr 

1 

¶32 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The 

majority opinion errs in three major respects: First, by 

excusing Lopez-Quintero's insufficiently pled petition; second, 

by assuming the role of factfinder as it grounds its decision in 

facts outside of the record that were never pled or supported by 

affidavit, thereby accepting a petition that never asserts when, 

where or how Lopez-Quintero specifically directed his attorney 

to file an appeal; and third, by permitting habeas to lie ten 

years after Lopez-Quintero's trial and conviction without a 

reasonable factual basis for the delay, the majority opinion 

excuses a ten-year delay. This is a sea change in the 

responsibilities of a habeas petitioner, thereby creating an 

opportunity for abuse of habeas in regard to direct appeals. 

¶33 Accordingly, because the majority opinion overturns 

long-standing habeas corpus precedent without recognizing that 

it exists and thereafter does not apply Strickland v. 

Washington, 466 U.S. 668 (1984), as interpreted by the United 

States Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470 

(2000), in regard to direct appeals, I would affirm the court of 

appeals, and I respectfully dissent from the majority opinion. 

I. BACKGROUND 

¶34 On March 7, 2008, Lopez-Quintero was convicted of 

first-degree intentional homicide with use of a dangerous weapon 

and carrying a concealed weapon after a six-day jury trial.1 On 

 

1 Lopez-Quintero was represented by privately paid counsel 

at trial. 
No. 2018AP203-W.pdr 

2 

April 9, 2008, he was sentenced to life in prison without the 

possibility of parole. He moved for a new trial.2 LopezQuintero signed a Notice of Right to Seek Postconviction Relief 

(Notice of Right) form while he was in court on April 9, 2008. 

Wisconsin Stat. § 973.18(3) requires: 

Before adjourning the sentencing proceeding, the judge 

shall direct the defendant and defendant's trial 

counsel to sign a form to be entered in the record, 

indicating that the lawyer has counseled the defendant 

regarding the decision to seek postconviction relief, 

and that the defendant understands that a notice of 

intent to pursue postconviction relief must be filed 

in the trial court within 20 days after sentencing for 

that right to be preserved. 

Lopez-Quintero was given a copy of the form he signed. Wis. 

Stat. § 973.18(4). The Notice of Right form does not evidence 

Lopez-Quintero's intent to appeal. Rather, the box he checked 

states: "I plan to seek postconviction relief." 

"Postconviction relief," which is defined in Wis. Stat. 

§ 809.30(1)(c), is not specific to an appeal, but also includes 

various motions for relief following conviction. 

¶35 On June 10, 2008, the circuit court denied LopezQuintero's request for a new trial because the evidence of his 

guilt was so overwhelming that the circuit court concluded a new 

trial would produce the same result. For example, gunshots that 

caused the homicide came from a car owned by Lopez-Quintero, and 

Lopez-Quintero was found a short time after the shooting with 

the murder weapon tucked into the waistband of his pants. 

 

2 Lopez-Quintero's trial counsel represented him on his 

postconviction motion. 
No. 2018AP203-W.pdr 

3 

¶36 When the circuit court denied Lopez-Quintero's motion 

for a new trial, his attorneys asked about filing an appeal. In 

preparation for the potential of an appeal, the circuit court 

granted Lopez-Quintero fee waivers for trial transcripts. The 

circuit court also waived the service and filing fees that would 

be applicable if he decided to appeal. In addition, the court 

directed Lopez-Quintero's trial counsel to continue until a 

decision about whether to appeal was made. The transcripts for 

Lopez-Quintero's trial were filed during 2008 and payment was 

made by the State, according to the record for Kenosha County 

Case No. 2007CF535. 

¶37 Neither Lopez-Quintero nor anyone acting on his behalf 

filed anything in regard to appealing or inquiring about an 

appeal of his conviction until February 1, 2018, when the 

Remington Center filed this petition for writ of habeas corpus 

on his behalf in the court of appeals.3

¶38 The petition for habeas asserts that Lopez-Quintero's 

"trial attorneys failed to fulfill their constitutional and 

statutory obligations to file a Notice of Intent to Seek 

Postconviction Relief ('Notice of Intent') within 20 days after 

sentencing."4 The petition alleges that failing to make the 

 

3 Wisconsin Stat. § 782.04 states that petitions for habeas 

corpus "must be verified." Maier v. Byrnes, 121 Wis. 2d 258, 

262, 358 N.W.2d 833 (Ct. App. 1984). Verification entails 

signing a document in the presence of a notary public to assure 

the truthfulness of the factual allegations. Kellner v. 

Christian, 197 Wis. 2d 183, 188-89, 539 N.W.2d 685 (1995). 

4 "Notice of Intent" starts the postconviction process. 

Wis. Stat. § 890.30(2)(b). It is the next step after the 

"Notice of Right" Lopez-Quintero signed in court on April 9, 

(continued) 
No. 2018AP203-W.pdr 

4 

appropriate filings within 20 days constituted ineffective 

assistance of counsel, citing Strickland. 

¶39 Although Lopez-Quintero's petition claims ineffective 

assistance for failing to initiate a direct appeal, the petition 

is not based on a transcript from an evidentiary hearing where 

trial counsel was questioned, or on an affidavit of counsel 

about why a Notice of Intent was not filed, or on LopezQuintero's affidavit stating when, where or how he specifically 

instructed counsel to appeal and that counsel refused to do so. 

II. DISCUSSION 

A. Standard of Review 

¶40 A petition for writ of habeas corpus presents a mixed 

question of fact and law, wherein we do not disturb historic 

facts. State v. Pozo, 2002 WI App 279, ¶6, 258 Wis. 2d 796, 654 

N.W.2d 12. However, whether habeas is available to the 

petitioner is a question of law that we independently review, 

while benefitting from the discussion of the court of appeals. 

Id. 

B. Habeas Corpus Petition 

1. General Principles 

¶41 Habeas corpus is a civil action, even if brought about 

by a criminal charge. State ex rel. McCaffrey v. Shanks, 124 

Wis. 2d 216, 223, 369 N.W.2d 743 (1985) (citing State ex rel. 

Korne v. Wolke, 79 Wis. 2d 22, 26, 255 N.W.2d 446 (1977)). As 

is required with other claims for relief, "[a] habeas petition 

 

2008. 
No. 2018AP203-W.pdr 

5 

must contain a statement of the legal issues and a sufficient 

statement of facts that bear on those legal issues, which if 

found to be true, would entitle the petitioner to relief." 

State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶18, 290 

Wis. 2d 352, 714 N.W.2d 990. The burden of proof in a habeas 

corpus proceeding is on the petitioner to sustain his 

allegations by a preponderance of the evidence. State ex rel. 

Reddin v. Meekma, 99 Wis. 2d 56, 61, 298 N.W.2d 192 (Ct. App. 

1980); State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 334, 283 

N.W.2d 408 (Ct. App. 1979) (citing Walker v. Johnston, 312 U.S. 

275, 286, (1941)); Wenzlaff v. Burke, 250 Wis. 525, 527, 27 

N.W.2d 475 (1947). 

¶42 Habeas corpus when issued is an equitable writ that 

permits courts of equity to tailor a remedy that is necessary 

under the particular facts. State ex rel. Memmel v. Mundy, 75 

Wis. 2d 276, 288, 249 N.W.2d 573 (1977). However, habeas is 

available only when the petitioner's liberty is restrained in 

violation of the constitution or by a tribunal that lacked 

jurisdiction. State ex rel. Marberry v. Macht, 2003 WI 79, ¶2, 

262 Wis. 2d 720, 665 N.W.2d 155. We have concluded that a 

petition for habeas corpus is an appropriate vehicle by which to 

bring a claim of ineffective assistance of appellate counsel. 

State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992). 

¶43 As we have explained many times, in order to mount a 

successful claim under Strickland, deficient performance by 

counsel and prejudice to the defendant must be alleged and 

proved. Strickland, 466 U.S. at 681-82. "[C]ourts must 'judge 
No. 2018AP203-W.pdr 

6 

the reasonableness of counsel's challenged conduct on the facts 

of the particular case, viewed as of the time of counsel's 

conduct.'" Roe, 528 U.S. at 477. 

¶44 The United States Supreme Court has repeatedly held 

that disregarding "specific instructions" from a defendant to 

file a notice of appeal is "professionally unreasonable." Id. 

However, a defendant must clearly direct counsel to file an 

appeal in order to conclude that failing to do so was deficient 

performance. Id. (explaining that counsel is not deficient for 

not filing a notice of appeal when defendant has not clearly 

directed him to appeal). As Roe explained, "[t]o prove 

deficient performance, a defendant can rely on evidence that he 

sufficiently demonstrated to counsel his interest in an appeal. 

But such evidence alone is insufficient to establish that, had 

the defendant received reasonable advice from counsel about the 

appeal, he would have instructed his counsel to file an appeal." 

Id. at 486. 

¶45 In addition, the "right to claim ineffective 

assistance of counsel for failure to commence an appeal does not 

exist indefinitely." State ex rel. Smalley v. Morgan, 211 

Wis. 2d 795, 802, 565 N.W.2d 805 (Ct. App. 1997).5 As Smalley 

 

5 The majority opinion overrules State ex rel. Smalley v. 

Morgan, 211 Wis. 2d 795, 802, 565 N.W.2d 805 (Ct. App. 1997). 

Majority op., ¶1. In so doing, it incorrectly states that 

Smalley was "abrogated in part by State ex rel. Coleman v. 

McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900." 

Coleman did not abrogate Smalley. Rather, Coleman explains that 

"the Smalley decision actually rests on the application of 

habeas principles" not on laches. Id., ¶25. In so doing, 

Coleman affirms Smalley's timeliness requirement. 
No. 2018AP203-W.pdr 

7 

explained, it was the petitioner's burden to show he was not 

"capable" of learning prior to filing habeas that counsel had 

not commenced any type of appeal on his behalf. Id. at 880 n.4. 

Rather, in order for habeas to issue, the petitioner must show 

that "the request for relief [was] made promptly and speedily." 

See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 

58, ¶¶16, 17, 271 Wis. 2d 633, 681 N.W.2d 110 (discussing 

invocation of the court's equitable powers to issue a writ 

pursuant to Wis. Stat. § 809.51, a statutory provision that also 

applies to writs of habeas corpus). 

¶46 I further note that "[e]quitable remedies are not 

available to one whose actions or inactions result in the harm." 

Lohr v. Viney, 174 Wis. 2d 468, 477, 497 N.W.2d 730 (Ct. App. 

1993). In this regard, the petitioner's conduct is a critical 

factor in deciding whether according habeas relief is 

appropriate. Coleman, 290 Wis. 2d 352, ¶25 (citing Smalley, 211 

Wis. 2d at 802 n.7, and explaining that Smalley correctly 

"places the burden of proof for timeliness of the [habeas] 

petition on Smalley"). 

¶47 Furthermore, finality requires that postconviction 

proceedings not continue indefinitely. State v. EscalonaNaranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994). For 

example, a convicted person is required to raise all grounds for 

relief from his or her conviction in the initial Wis. Stat. 

§ 974.06 motion. Id. at 185. 
No. 2018AP203-W.pdr 

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2. Wisconsin Stat. §§ 809.51 and 782.04 

¶48 Lopez-Quintero asserts a right to appeal by invoking 

this court's supervisory jurisdiction pursuant to Wis. Stat. 

§ 809.51. Subsection (1) requires that the petition contain: 

(a) A statement of the issues presented by the 

controversy; 

(b) A statement of the facts necessary to 

understanding of the issues; 

(c) The relief sought; and 

(d) The reasons why the court should take 

jurisdiction. 

Lopez-Quintero's petition also is required to comply with Wis. 

Stat. § 782.04(5), which commands a statement of "In what the 

illegality of the imprisonment consists." State ex rel. Santana 

v. Endicott, 2006 WI App 13, ¶10, 288 Wis. 2d 707, 709 N.W.2d 

515. 

¶49 Wisconsin Stat. § 809.51(1) requires more than an 

assertion that Lopez-Quintero wanted a direct appeal and he did 

not get one. It requires a statement of the "issues presented 

by the controversy" and "the facts necessary to understanding of 

the issues." Wisconsin Stat. § 782.04(5) requires an 

explanation of why Lopez-Quintero is being imprisoned 

unlawfully. These two statutes form the framework for what must 

be pled in a habeas petition. 
No. 2018AP203-W.pdr 

9 

3. Lopez-Quintero's Petition 

¶50 Even though the majority opinion labels it as a 

"sufficiently pled habeas petition,"6 Lopez-Quintero's petition 

for habeas is patently inadequate. The petition does not allege 

facts showing that Lopez-Quintero had made a specific request of 

counsel to appeal. Rather, the petition for habeas references 

the June 10, 2008 Affidavit of Indigency. However, that 

document demonstrates that no decision had been made on whether 

to appeal: "Atty Frederick Cohn appointed to initiate appeal if 

desired."7 

¶51 Because the record before us is deficient, the 

majority's decision places it in the position of adding facts to 

the petition, so that if true, the petition would support 

finding that Lopez-Quintero specifically directed his counsel to 

appeal. The majority opinion goes on this factual journey with 

the erroneous belief that "[t]he burden to demonstrate why a 

statutorily-compliant claim for habeas relief should be denied 

as untimely rests with the party seeking to avoid a substantive 

review of the issue."8 The majority opinion cites Coleman, 290 

Wis. 2d 352, ¶2 for this amazing proposition. However, 

paragraph 2 of Coleman focuses on laches, explaining that if the 

State raises laches as a defense, it has the burden to prove the 

elements of that defense. However, the State did not plead in 

 

6 Majority op., ¶10. 

7 Affidavit of Indigency, p. 1 (emphasis added). 

8 Majority op., ¶27. 
No. 2018AP203-W.pdr 

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response to Lopez-Quintero's petition; therefore, the defense of 

laches is not at issue. Furthermore, Coleman concludes that 

habeas petitions have an obligation to plead facts which if true 

would afford the relief the petition seeks. Id., ¶18. 

Therefore, it is paragraph 18 of Coleman that is significant to 

Lopez-Quintero's petition, not paragraph 2. 

¶52 Furthermore, by finding facts, the majority takes a 

far different tact than the United States Supreme Court followed 

in Roe where there had been an evidentiary hearing at which 

trial counsel testified. Roe, 528 U.S. at 475. Even after 

reviewing testimony from that evidentiary hearing, the Supreme 

Court concluded that the record from the hearing was 

insufficient; and it remanded for further proceedings. Id. at 

487 (explaining, "we are unable to determine whether [counsel] 

had a duty to consult with respondent (either because there were 

potential grounds for appeal or because respondent expressed 

interest in appealing), whether she satisfied her obligations, 

and, if she did not, whether respondent was prejudiced 

thereby."). 

¶53 Lopez-Quintero's petition says that he "wanted to 

pursue postconviction relief" and he and Attorney Christopher 

Cohen signed a Notice of Right. The petition also relates that 

"Lopez-Quintero could not recall any instance where he met with 

his attorneys to discuss the appeals process after sentencing." 

¶54 Apparently the preparer of the habeas petition "spoke 

with" Attorney Christopher Cohen, but Attorney Cohen "could not 

remember what transpired between sentencing and the hearing on 
No. 2018AP203-W.pdr 

11 

the motion for new trial that would explain why neither he nor 

Attorney Frederick Cohn filed a Notice of Intent." There simply 

is nothing in the petition about when, where or how LopezQuintero specifically instructed his trial counsel to appeal or 

why an appeal was not pursued. Perhaps after denial of the 

motion for a new trial, counsel and Lopez-Quintero decided an 

appeal would not be worth pursuing. The petition provides no 

facts about any discussions with counsel on the merits or lack 

thereof in regard to an appeal. 

¶55 Furthermore, the petition does not evidence that the 

preparers of the petition reviewed the transcripts of the trial 

that have been on file with the Racine County Clerk of Court 

since December of 2008. The petition gives us no indication of 

whether there was a nonfrivolous issue that would be put forward 

in an appeal if one were to go forward. Although identification 

of grounds for appeal is not required, identification of an 

appealable issue would have been of assistance to LopezQuintero's petition. Id. at 487. 

¶56 In addition, the record is silent about why LopezQuintero waited ten years before seeking to institute an appeal. 

While it is true that his trial counsel did not file a Notice of 

Intent, it did not take Lopez-Quintero ten years to figure out 

that no appeal was pending. The record shows that he received 

oral and written notice that he had 20 days after sentencing to 

preserve his postconviction rights; yet, he did nothing. 

¶57 Perhaps because the majority recognized that the 

habeas petition is deficiently pled, the majority opinion chose 
No. 2018AP203-W.pdr 

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to fill in facts that are not in the habeas petition. The 

majority acknowledges that factual allegations to which it 

refers are not in the record, and asserts that they came from 

Lopez-Quintero's brief.9 If there actually were such facts, they 

should have been pled in the verified petition or contained 

within an affidavit signed by Lopez-Quintero that the habeas 

petition incorporated. There was no affidavit attached to the 

petition, and none of the facts in ¶26 of the majority opinion 

are in the petition or anywhere else in the record. Therefore, 

they should not have been considered when the majority decided 

that the State's objection to Lopez-Quintero's unexplained tenyear delay in petitioning for habeas was "immaterial."10 

Associated Bank, N.A. v. Brogli, 2018 WI App 47, ¶38, 383 

Wis. 2d 756, 917 N.W.2d 37 (concluding that a reviewing court 

cannot resolve questions when pertinent facts are not of 

record); Lamb v. Manning, 145 Wis. 2d 619, 626, 427 N.W.2d 437 

(Ct. App. 1988) (concluding that documents not of record or 

authenticated by affidavit must be ignored by the court). 

¶58 Wisconsin Stat. § 809.51(1)(b) directs that a 

sufficient habeas petition must be grounded in "a statement of 

the facts necessary to understanding" how Lopez-Quintero 

specifically instructed counsel to appeal and that counsel 

refused to act on his instruction. His petition, which says 

 

9 Majority op., ¶26. 

10 Id. Can other appellants now supplement habeas petitions 

with factual allegations in their briefs? If so, this is new 

law and poor precedent to establish. 
No. 2018AP203-W.pdr 

13 

only that he wanted to appeal and missed the date, is not 

sufficient. Stated more completely, the petition does not 

allege when, where or how Lopez-Quintero specifically directed 

his trial counsel to appeal. Without Lopez-Quintero's specific 

direction to appeal, counsel's performance is not deficient. 

Roe, 528 U.S. at 477. 

¶59 The petition in Coleman is an excellent example of how 

a petitioner for habeas can fulfill the pleading obligations of 

Wis. Stat. §§ 809.51(1) and 782.04. Coleman's habeas petition 

averred that although he wanted to appeal, counsel advised him 

that he "had no chance of obtaining any relief on appeal." 

Coleman, 290 Wis. 2d 352, ¶8. Coleman's petition then explained 

that failing to appeal the denial of his suppression motion was 

ineffective assistance because whether he had standing to 

challenge the search of his girlfriend's home was a significant 

and obvious issue. Id., ¶¶11, 12. Because denial of Coleman's 

suppression motion was the genesis for his guilty plea, if he 

were to prevail on the appeal and evidence found during the 

warrantless search were suppressed, he would have withdrawn his 

plea and his conviction would have been reversed. Id. 

¶60 In the case before us, it is not surprising that the 

court of appeals denied the petition as having been filed too 

late. The petition does not narrate any facts that could be 

read to show that Lopez-Quintero was not capable of learning for 

ten years that no appeal was pending. Absent some reasonable 

narration about why he waited ten years to seek a direct appeal, 
No. 2018AP203-W.pdr 

14 

Wis. Stat. § 809.51(2) gives the court of appeals the discretion 

to dismiss habeas petitions ex parte. It provides: 

The court may deny the petition ex parte or may order 

the respondents to file a response with a supporting 

memorandum, if any, and may order oral argument on the 

merits of the petition. 

¶61 Here, the court of appeals denied the petition ex 

parte, focusing on the lack of an explanation for the ten years 

that passed subsequent to Lopez-Quintero's sentencing. However, 

the inadequacy of Lopez-Quintero's petition should not result in 

this court giving him a pass on his obligations under Roe, 

Coleman, Strickland, Wis. Stat. §§ 809.51 and 782.04 to file a 

verified petition that articulates his specific instructions to 

counsel to appeal or supportive of a nonfrivolous trial error 

that he seeks to appeal. 

¶62 To some extent, the majority opinion falls into the 

trap set by Lopez-Quintero's inadequate petition for habeas. 

The majority opinion does so when it responds to the narration 

in a petition rather than independently analyzing what is 

necessary for a sufficient habeas pleading. In so doing, the 

majority opinion erroneously gives the State the burden of 

proving that the habeas petition is sufficiently stated, 

impliedly finds facts necessary to its conclusion that the 

petition is "statutorily-compliant,"11 and reverses the 

discretionary decision of the court of appeals, contending that 

 

11 Majority op., ¶¶24, 25, 27 
No. 2018AP203-W.pdr 

15 

principles of equity do not "require a habeas petitioner to 

allege timeliness in the petition."12 

¶63 The majority opinion never says why the court of 

appeals erroneously exercised the discretion the legislature 

granted to it in Wis. Stat. § 809.51(2). If habeas had no time 

limitations and laches were the only defense to habeas seeking 

to appeal a ten-year-old conviction, the legislature would not 

have given courts the statutory authority in § 809.51(2) to deny 

habeas petitions ex parte. Stated otherwise, ex parte denials 

of habeas must rely on the sufficiency of the habeas petition 

because that is all a court would have available to consider 

prior to a State response. 

III. CONCLUSION 

¶64 Because, as a matter of law, the foundational pleading 

requirements of habeas corpus seeking to revive a direct appeal 

have not been met by Lopez-Quintero's petition, I conclude that 

the court of appeals did not erroneously exercise its discretion 

in denying habeas relief ex parte, and I respectfully dissent 

from the majority opinion. 

¶65 I am authorized to state that Justice ANNETTE 

KINGSLAND ZIEGLER joins this dissent. 

 

12 Majority op., ¶1. 
No. 2018AP203-W.pdr 

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