These concerns highlight the prejudice to the State in responding to an untimely habeas petition in which a defendant seeks relief in this court on the ground that appointed counsel abandoned him or her years ago. By the Court. Recommended for publication in the official reports. The defendant may respond to the brief and this court independently reviews the record to determine whether further appellate proceedings would be frivolous and without arguable merit. A no merit report under Rule 809.32 is an approved method by which appointed appellate counsel discharges the duty of representation.
Counsel filing a no merit report seeks to withdraw from the defendant's case.
2 Rule 809.32, Stats., does not apply to privately retained counsel. However, privately retained counsel's failure to pursue a Rule 809.30, Stats., appeal is cognizable in this court. We assume that counsel advised Smalley of the no merit option before she closed his file. Although Smalley's petition does not allege that he was so informed, that fact is not crucial to our decision that his Knight petition was not timely filed. There can be no doubt that Smalley was capable of learning prior to October 1996 that counsel had not commenced any type of appeal on his behalf.