                                                                           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 Lopez-
Quintero,
                                                                      FILED
              Petitioner,
                                                                 MAY 29, 2019
      v.
                                                                    Sheila T. Reiff
Michael A. Dittmann,                                             Clerk of Supreme Court


              Respondent.




      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 Lopez-
Quintero'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


      1All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
                                                              No.     2018AP203-W



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 Lopez-
Quintero.    On March 7, 2008, a jury found Lopez-Quintero guilty




      2The 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).



                                      2
                                                                         No.    2018AP203-W



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 Lopez-
Quintero     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

                                              3
                                                                       No.        2018AP203-W


      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, Lopez-
Quintero'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




                                          4
                                                                               No.   2018AP203-W



State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).3                               Lopez-

Quintero, 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.


                                                    5
                                                                        No.     2018AP203-W



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.




      4In 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.


                                           6
                                                                     No.    2018AP203-W



                                   II.    ANALYSIS
     ¶10    While     habeas     relief    may      be   denied    under    the   well-
established     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.


                                           7
                                                                             No.     2018AP203-W



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.
                                                8
                                                                                  No.    2018AP203-W



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

                                                 9
                                                                     No.    2018AP203-W


        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.




                                         10
                                                                          No.    2018AP203-W



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    well-
established.             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).


                                            11
                                                                       No.    2018AP203-W



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 [Lopez-
Quintero]    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




                                             12
                                                        No.    2018AP203-W



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 Lopez-
Quintero    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)
                                   13
                                                             No.   2018AP203-W



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.


                                     14
                                                                                 No.     2018AP203-W



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.


                                                      15
                                                                                  No.       2018AP203-W



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




                                                      16
                                                        No.    2018AP203-W



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.


                                  17
                                                                      No.     2018AP203-W



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
                                           18
                                                                           No.    2018AP203-W



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
                                           19
                                                        No.     2018AP203-W



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

     12Certain 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.


                                  20
                                                                           No.    2018AP203-W



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
                                             21
                                                                  No.    2018AP203-W



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).


                                          22
                                                                     No.   2018AP203-W



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   statutorily-
compliant      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)).


                                             23
                                                                         No.     2018AP203-W



       ¶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.


                                               24
                                                                             No.    2018AP203-W



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.          Lopez-
Quintero'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 statutorily-
compliant 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.


                                              25
                                                                             No.    2018AP203-W



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).

                                             26
                                                                             No.    2018AP203-W



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
                                               27
                                                           No.    2018AP203-W



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.").

                                     28
                                                         No.   2018AP203-W.dk




      ¶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.




                                   1
                                                                           No.    2018AP203-W.pdr



     ¶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.


                                                1
                                                              No.    2018AP203-W.pdr


April 9, 2008, he was sentenced to life in prison without the
possibility of       parole.     He    moved    for    a new trial.2         Lopez-
Quintero 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   Lopez-
Quintero'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.


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     ¶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)
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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    Lopez-
Quintero'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.


                                              4
                                                                            No.    2018AP203-W.pdr


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

                                               5
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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

      5The 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.


                                         6
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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.    Escalona-
Naranjo, 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.




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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.




                                           8
                                                                 No.    2018AP203-W.pdr


                         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.


                                           9
                                                                 No.     2018AP203-W.pdr


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

                                          10
                                                                 No.   2018AP203-W.pdr


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   Lopez-
Quintero 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    Lopez-

Quintero's petition.        Id. at 487.

      ¶56   In addition, the record is silent about why Lopez-
Quintero 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

                                             11
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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 ten-
year        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.


                                              12
                                                                  No.    2018AP203-W.pdr


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,



                                           13
                                                                            No.    2018AP203-W.pdr


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

                                                14
                                                              No.    2018AP203-W.pdr


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.


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