On Point: 3. Rothering/Knight petitions

State ex rel. Milton Eugene Warren v. Michael Meisner, 2020 WI 55, 6/11/20, reversing and remanding an unpublished order of the court of appeals, 2019AP567; case activity (including briefs)

Seven years ago, the supreme court decided State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146. That opinion contained a couple of erroneous statements about the procedure for raising claims that postconviction counsel was ineffective. Both parties moved for reconsideration of these statements, which the court inexplicably denied more than a year later. Now with this decision, the court unanimously cleans up the misstatements in Starks, and gives the defendant his day in court.

State ex rel. Milton Eugene Warren v. Michael Meisner, 2019AP567-W, petition for review granted 10/16/19; reversed and remanded 6/10/20; case activity

Issue (composed by On Point based on the petition for review)

Whether under State v. Starks, 2013 WI 69, Warren’s § 974.06 postconviction motion alleging ineffective assistance of counsel by the lawyer appointed on direct appeal should be heard in the circuit court or the Court of Appeals.

State v. Larry D. Wright, 2014AP2672, District 1, 11/24/15 (not recommended for publication); case activity (including State’s brief)

The court of appeals rebuffs Wright’s claim that postconviction counsel was ineffective for not raising a claim of ineffective assistance of trial counsel on direct appeal. The court also rejects Wright’s claim that the trial court engaged in improper ex parte communication with the jury during deliberations.

State ex re. Lorenzo D. Kyles v. William Pollard, 2013 WI 38, reversing an unpublished court of appeals decision; case activity

Settling a somewhat obscure but still important point of appellate procedure, the supreme court unanimously holds that when a defendant seeks to reinstate the deadline for filing a notice of intent to pursue postconviction relief under § 809.30(2)(b) based on an allegation that counsel was ineffective for failing to file a timely notice, he should file a habeas petition in the court of appeals as provided under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

Review of an unpublished court of appeals decision that is not available online; case activity

Issue:  Whether a client alleging ineffective assistance of counsel based on his trial lawyer’s unavailability or failure to respond to a request for an appeal during the 20-day period for filing a notice of intent to pursue postconviction must raise his claim via a § 974.06 motion or a Knight petition?

SCOW is wading into a procedural thicket with this case. 

 State v. Tramell Starks,  2013 WI 69, affirming an unpublished court of appeals decision, case activity. Majority opinion by Justice Gableman, with a dissent by Justice Bradley and joined by Chief Justice Abrahamson and Justice Crooks

On Point is pleased to present this guest post by Attorney Rob Henak, an expert on Wis. Stat. § 974.06 postconviction motions and ineffective assistance of appellate counsel.

State ex rel. Luis Santana v. Endicott, 2006 WI App 13
Pro se

Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):

¶1        … Although Santana may seek habeas relief on his ineffective assistance claim,

State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals, reconsideration denied, 2006 WI 121
For Coleman: Brian Kinstler

Issue/Holding:

¶28      Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice).