                                                              2014 WI 38

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2012AP378-W
COMPLETE TITLE:         State of Wisconsin ex rel. Lorenzo D. Kyles,
                                  Petitioner,
                             v.
                        William Pollard, Warden,
                                  Respondent.



                                REVIEW OF A MEMORANDUM DECISION
                                     OF THE COURT OF APPEALS


OPINION FILED:          June 17, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 3, 2014

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the petitioner, there were briefs by Robert R. Henak,
Henak Law Office, S.C., Milwaukee, and Melinda A. Swartz, Law
Office of Melinda A. Swartz, Milwaukee, and oral argument by
Robert R. Henak.


       For the respondent, the cause was argued by Aaron O’Neil,
assistant attorney general, with whom on the brief was J.B. Van
Hollen, attorney general.
                                                                             2014 WI 38
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2012AP378-W
(L.C. No.    2002CF2732)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

State of Wisconsin ex rel. Lorenzo D. Kyles,

              Petitioner,
                                                                          FILED
      v.
                                                                     JUN 17, 2014
William Pollard, Warden,
                                                                        Diane M. Fremgen
              Respondent.                                            Clerk of Supreme Court




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

cause remanded.


      ¶1      ANN WALSH BRADLEY, J.                Petitioner, Lorenzo Kyles,

seeks review of an unpublished court of appeals decision that

denied      his   petition   for   a   writ   of    habeas      corpus      seeking      to

reinstate the deadline for him to file a notice of intent to

pursue postconviction relief.1            The court of appeals determined

that Kyles brought his petition in the wrong forum.                        Because the

court viewed the claim as alleging ineffective assistance of

      1
       State ex rel. Kyles v. Pollard,                            No.     2012AP378-W,
unpublished slip op. (Ct. App. May 9, 2012).
                                                                   No.    2012AP378-W



post-conviction      counsel,   it     concluded    that    Kyles    should     have

filed his petition in the circuit court.

    ¶2    Kyles asserts that a petition for a writ of habeas

corpus pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d

540 (1992), filed in the court of appeals is the proper forum

and process.    He contends that the petition should be filed with

the court of appeals because the circuit court does not have

authority to grant the relief of extending the filing deadline

which would reinstate his direct appeal rights.                          He further

maintains that his habeas petition set forth sufficient facts to

entitle   him   to    an   evidentiary         hearing   on   his        ineffective

assistance of counsel claims.

    ¶3    We    determine       that     the     court     where    the      alleged

ineffective assistance of counsel occurred is the proper forum

in which to seek relief unless that forum is unable to provide

the relief necessary to address the ineffectiveness claim.                       The

remedy for an attorney's failure to file a notice of intent to

pursue postconviction relief is an extension of the timeframe to
file the notice.      Because the circuit court is without authority

to extend the deadline to file a notice of intent to pursue

postconviction relief, we conclude that the proper forum here

lies in the court of appeals.           We also determine that where such

a claim is made to the court of appeals it should be in the form

of a habeas petition pursuant to Knight.

    ¶4    We further conclude that Kyles' habeas petition set

forth sufficient facts to entitle him to an evidentiary hearing
on his ineffective assistance of counsel claims.                    Accordingly,
                                        2
                                                                                      No.       2012AP378-W



we reverse the decision of the court of appeals and remand to

the court of appeals to appoint a referee or refer the case to

the     circuit       court       for       an    evidentiary               hearing.       Wis.       Stat.

§ 752.39 (2011-12).2

                                                      I

       ¶5         Although      some     of      the       facts      are     uncontested,           Kyles'

assertions          set    forth        below         that        underlie       his        ineffective

assistance of counsel claims have not yet been tested in any

evidentiary hearing.3

       ¶6         Kyles    pled        guilty         to        one    count     of    first-degree

reckless homicide by use of a dangerous weapon and was sentenced

in    Milwaukee           County       on     November            12,       2002,     to        40    years

imprisonment.             On that day, after he was sentenced, Kyles met

with his attorney, Thomas Flanagan, to discuss the sentence and

his appeal rights.

       ¶7         Both Kyles and his attorney signed a "Notice of Right

to    Seek    Postconviction            Relief"            form       which    explained         that       if

Kyles      wished     to     seek      postconviction                 relief,    he    must          file    a
notice       of    intent       with    the      circuit          court       within       20    days       of

sentencing.           Kyles       checked         a       box    on     the    form    next          to   the

statement         that     "I    am     undecided           about       seeking       postconviction




       2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
       3
       The majority of these facts come from an affidavit by
Kyles which was attached as an exhibit to the habeas petition he
filed with the court of appeals in 2012.

                                                      3
                                                                           No.    2012AP378-W



relief and I know I need to decide and tell my lawyer within 20

days."      Those 20 days were set to expire on December 2, 2002.

      ¶8      According       to    Kyles,    later       that    day    he      called     his

mother and asked her to contact Flanagan and inform him that

Kyles wished to appeal.              Kyles further asserts that on November

15,   2002,    he     sent    a    letter     to    Flanagan's         office     to   inform

Flanagan that he wished to appeal and wanted Flanagan to file

the notice of intent.              Kyles did not keep a copy of the letter.

An exhibit attached to Kyles' petition suggests that Flanagan

disputes receiving the letter.

      ¶9      Kyles    also       asserts    that    he    tried       again     to    contact

Flanagan about the notice of intent on November 18, 2002, but

Flanagan's     office        refused   to     accept      the    call.         When    he    was

unable to reach Flanagan, Kyles called his mother to ask if she

had informed Flanagan of his wish to appeal.                             His mother told

him that she had been unable to reach Flanagan directly, but had

left a message advising him that Kyles wanted to appeal.                                     His

mother called Flanagan "a couple of more times" but was unable
to reach him.          Kyles also attempted to speak with Flanagan on

November 27 and December 2, 2002, but Flanagan's office either

did   not     accept    the        collect    calls       or     did    not     answer       the

telephone.      The rejected calls are reflected in the telephone

records from Waupun Correctional Institution.

      ¶10     Kyles    states       that     he    was    not    able    to      speak      with

Flanagan until January 24, 2003, after the deadline for filing

the notice of intent had passed.                     When Kyles told Flanagan of
his desire to appeal, Flanagan informed him that the time limits
                                              4
                                                                     No.    2012AP378-W



had expired and that because he entered a plea of guilty, there

were few non-frivolous issues for appeal.                   Kyles alleges that

Flanagan did not inform him that he could seek an extension of

the deadline to file the notice of intent.

      ¶11   Thereafter,     citing    Knight,      168    Wis.   2d        509,   Kyles

filed a pro se habeas corpus petition with the court of appeals

seeking reinstatement of his direct appeal rights.                    He contended

that he was denied his right to appellate counsel because his

attorney did not file an appeal and appropriate postconviction

paperwork.    The court of appeals dismissed the petition.                        State

ex rel. Kyles v. McCaughtry, No. 2003AP2760-W, unpublished slip

op. (Ct. App. Jan. 28, 2004).             It noted that a notice of intent

had never been filed and thus, it construed Kyles' claim as an

argument that he was denied his right to postconviction counsel.

Id.    Because      the   alleged    error     occurred    before      the    circuit

court, the court of appeals concluded that Kyles' claim should

be raised in the circuit court as a petition for habeas corpus

or a motion under Wis. Stat. § 974.06.             Id.
      ¶12   In accordance with those instructions, Kyles filed a

pro se habeas petition in the circuit court again seeking to

have his direct appeal rights reinstated.                 The petition asserted

that Kyles was denied effective assistance of counsel because he

had written a letter to Flanagan about the 20 days for filing

for postconviction relief and Flanagan never responded.                            The

circuit     court    construed      the       petition     as    a     motion      for

postconviction relief.        Noting that the petition before it did
not specifically allege that Kyles informed Flanagan that he
                                          5
                                                                         No.    2012AP378-W



wished to appeal, the circuit court concluded that Kyles failed

to state a viable claim for relief and denied the petition.                              The

court indicated, however, that if Kyles produced a copy of the

letter     he   sent    to    Flanagan     then      it     would   reconsider           its

decision.

    ¶13     Kyles      alleges     that   he   did    not    have   a     copy      of   the

letter and so did not submit it to the court.                              Instead, he

appealed    the     denial    of    his   motion.         The     court        of   appeals

affirmed    the     circuit    court,     State      v.   Kyles,    No.        2004AP885,

unpublished slip op. (Ct. App. Dec. 15, 2004), and this court

denied     Kyles'      petition     for    review,        State     v.     Kyles,        No.

2004AP885, unpublished order (Feb. 9, 2005).

    ¶14     After attempts at obtaining relief in federal courts4

were also unfruitful, Kyles filed a pro se motion with the court

of appeals seeking to extend his deadline for filing notice of

intent pursuant to Wis. Stat. § 809.82(2).5                     The motion asserted

that Kyles had been unable to get in touch with Flanagan during

the 20-day period for filing the notice and Flanagan had not


    4
       Kyles v. Litscher, No. 05-C-385, unpublished slip op.
(E.D. Wis. Feb. 12, 2008), request for appealability denied,
unpublished order (7th Cir. June 10, 2008), cert. denied, No.
08-5882, unpublished order (U.S. Oct. 20, 2008).
    5
         Wisconsin Stat. § 809.82(2)(a) states:

    Except as provided in this subsection, the court upon
    its own motion or upon good cause shown by motion, may
    enlarge or reduce the time prescribed by these rules
    or court order for doing any act, or waive or permit
    an act to be done after the expiration of the
    prescribed time.

                                          6
                                                                      No.    2012AP378-W



responded    to    his    letter    seeking        assistance      with     filing   the

notice.     The court of appeals denied the motion, concluding that

Kyles had failed to show good cause for extending the deadline.

State v. Kyles, No. 2008XX1478-CR, unpublished slip op. (Ct.

App. Jan. 16, 2009).          It stated that the circuit court is the

proper    forum   for     developing    factual       matters      and    the   circuit

court had already determined that Kyles did not show he had

instructed his attorney to file a notice of intent.

    ¶15     Kyles then filed another pro se habeas petition with

the court of appeals.         Again he sought an extension of his time

to file a notice of intent, arguing that he was denied effective

assistance of counsel when Flanagan was unavailable during the

20 days in which the notice needed to be filed, failed to file

the notice of intent, and failed to file a motion to extend the

filing deadline after he became aware Kyles wished to appeal.

The court of appeals again denied Kyles' requests, concluding

that claims for ineffective assistance of postconviction counsel

must be brought in the circuit court.                   State ex rel. Kyles v.
Pollard, No. 2012AP378-W, unpublished slip op. (Ct. App. May 9,

2012).      It    later    denied   Kyles'     motion        for   reconsideration.

State ex rel. Kyles v. Pollard, No. 2012AP378-W, unpublished

order (Ct. App. June 14, 2012).

                                        II

    ¶16     In this case we are asked to determine the appropriate

forum and vehicle for relief for a defendant who asserts that

the ineffectiveness of counsel resulted in a notice of intent to
pursue    postconviction       relief        not     being     filed.       These    are
                                         7
                                                                     No.    2012AP378-W



questions of law which we review independently of determinations

rendered by the circuit court and court of appeals.                          State v.

Badzinski, 2014 WI 6, ¶26, 352 Wis. 2d 329, 843 N.W.2d 29.

     ¶17    Additionally, we are asked to determine whether Kyles'

petition set forth sufficient facts to warrant an evidentiary

hearing.     This also presents a question of law which we review

independently       of   the    determinations    rendered      by     the    circuit

court and court of appeals.             State v. Balliette, 2011 WI 79,

¶18, 336 Wis. 2d 358, 805 N.W.2d 334.

     ¶18    Our analysis is divided into three parts.                       First, we

consider the appropriate forum for a claim of ineffectiveness

premised upon counsel's failure to file a notice of intent to

pursue     postconviction        relief.         Second,     we       address      the

appropriate procedure for such a claim.              Lastly, we address the

sufficiency of Kyles' habeas petition.

                                       III

     ¶19    The parties agree that there is no precedent directly

addressing    the    discrete     procedural     issue    before      us.       Absent
clear guidance, they present different interpretations of our

related    precedent      and   ultimately     disagree    on     whether       Kyles'

petition alleging ineffectiveness of counsel resulting in the

failure to file a notice of intent to pursue postconviction

relief should have been filed in the court of appeals or the

circuit court.6

     6
       As discussed infra at ¶51, the state agrees that the court
of appeals is the correct forum for a claim of ineffectiveness
based on counsel's failure to request an extension of the
timeline   for   filing   the   notice  of   intent   to   pursue
                                        8
                                                              No.   2012AP378-W



      ¶20    A   brief   background       on    appellate    procedure     and

postconviction proceedings is helpful to provide context for our

analysis.

      ¶21    Upon conviction, a defendant has a statutory right to

seek postconviction relief through a postconviction motion or an

appeal.     Wis. Stat. §§ 809.30, 973.18.          The process begins with

the filing of a notice of intent to seek postconviction relief

with the circuit court.        Wis. Stat. § 809.30(2)(b).7

      ¶22    It is the duty of defendant's trial counsel to file

the   notice     of   intent     if   the      defendant    wants   to    seek

postconviction relief.         Wis. Stat. §§ 809.30(2)(a),8 973.18(5).9


postconviction relief. However, it argues that Kyles' claim is
procedurally barred because he did not raise it in the petition
for review.
      7
          Wisconsin Stat. § 809.30(2)(b) states:

      Within 20 days after the date of sentencing or final
      adjudication, the person shall file in circuit court
      and serve on the prosecutor and any other party a
      notice   of   intent  to   pursue  postconviction   or
      postdisposition relief. If the record discloses that
      sentencing or final adjudication occurred after the
      notice of intent was filed, the notice shall be
      treated   as    filed  after   sentencing   or   final
      adjudication on the day of the sentencing or final
      adjudication. . . .
      8
          Wisconsin Stat. § 809.30(2)(a) provides:

      . . . Counsel representing the person at sentencing or
      at the time of the final adjudication shall continue
      representation by filing a notice under par. (b) if
      the person desires to pursue postconviction or
      postdisposition relief unless counsel is discharged by
      the person or allowed to withdraw by the circuit court
      before the notice must be filed.

                                      9
                                                                        No.    2012AP378-W



Counsel must file the notice within 20 days of sentencing.                             Wis.

Stat. § 809.30(2)(b).            However, the court of appeals may, upon

its own motion or a showing of good cause, extend the time for

filing the notice.         Wis. Stat. § 809.82(2); State v. Harris, 149

Wis. 2d 943, 947, 440 N.W.2d 364 (1989).                      The court of appeals'

"authority to extend the time periods of Rule 809.30 is to the

exclusion of the trial court."                     State v. Rembert, 99 Wis. 2d

401, 406 n.4, 299 N.W.2d 289 (Ct. App. 1980).

    ¶23       A    defendant     is    entitled       to    counsel    while       seeking

relief through a postconviction motion under Wis. Stat. § 974.02

or a direct appeal.             State v. Evans, 2004 WI 84, ¶30, 273 Wis.

2d 192, 682 N.W.2d 784; State v. Peterson, 2008 WI App 140, ¶11,

314 Wis. 2d 192, 757 N.W.2d 834.                    The right to counsel includes

the right to effective assistance of counsel.                          State ex rel.

Flores v. State, 183 Wis. 2d 587, 604, 516 N.W.2d 362 (1994).

    ¶24       With the above in mind, we turn to address what is the

proper forum in this case.                  Although Wisconsin courts have not

addressed the situation we face here, i.e. the allegation that
counsel's     ineffectiveness          resulted      in     the   failure     to    file   a

notice   of       intent   to    pursue      postconviction         relief,    precedent

suggests      that     the       forum       for     seeking      relief      for      such

ineffectiveness lies in the court of appeals.

    ¶25       Traditionally,          the    rule     has    been    that     claims       of

ineffective assistance of counsel premised on errors occurring

    9
       Wisconsin Stat. § 973.18(5) states: "If the defendant
desires to pursue postconviction relief, the defendant's trial
counsel shall file the notice required by s. 809.30(2)(b)."

                                             10
                                                                 No.     2012AP378-W



before the circuit court should be pursued in the circuit court

and    claims    of    ineffective   assistance     of    counsel     premised   on

errors occurring before the appellate court should be pursued in

the court of appeals.         Balliette, 336 Wis. 2d 358, ¶32.             The two

seminal cases addressing the forum for filing ineffectiveness

claims are Knight, 168 Wis. 2d 509, and State ex rel. Rothering

v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996).

       ¶26     In Knight, the defendant alleged his appellate counsel

was ineffective for failing to raise certain arguments in the

court of appeals.         168 Wis. 2d at 513.       At issue was whether the

appropriate vehicle for relief was a motion to the circuit court

pursuant to Wis. Stat. § 974.06 or a habeas petition to the

court of appeals.10         In its analysis the court focused on the

fact    that    because    the    alleged   error    occurred       in   appellate

proceedings, "[t]he appellate court will be familiar with the

case    and    the    appellate   proceedings."     Id.   at   521.      Thus,   it

concluded that the appellate court that heard the appeal "is a


       10
            Wis. Stat. § 974.06(1) states:

       After the time for appeal or postconviction remedy
       provided in s. 974.02 has expired, a prisoner in
       custody under sentence of a court or a person
       convicted and placed with a volunteers in probation
       program under s. 973.11 claiming the right to be
       released upon the ground that the sentence was imposed
       in   violation  of   the  U.S.   constitution  or  the
       constitution or laws of this state, that the court was
       without jurisdiction to impose such sentence, or that
       the sentence was in excess of the maximum authorized
       by law or is otherwise subject to collateral attack,
       may move the court which imposed the sentence to
       vacate, set aside or correct the sentence.
                                       11
                                                                          No.    2012AP378-W



more appropriate and better suited forum than is the circuit

court to determine whether appellate counsel's performance was

deficient and prejudiced the defendant's appeal."                         Id.

     ¶27      Rothering utilized a similar analytical approach.                           In

that case, the court of appeals considered whether a                                 Knight

petition11        was   appropriate     to     address      a    claim   of     ineffective

assistance        premised     upon    postconviction            counsel's      failure    to

bring     a   postconviction          motion       before       the   circuit     court   to

withdraw      a    plea    and    raise      the     issue       of   ineffective     trial

counsel.          205   Wis.     2d   at     679.      The       court   noted     Knight's

statement that the appellate court would be familiar with the

case, and determined that "[t]hose premises do not hold true

when addressing the conduct of postconviction counsel."                                   Id.

"The allegedly deficient conduct is not what occurred before

[the court of appeals]                but rather what should have occurred

before the trial court."              Id.     The court concluded that "a claim

of ineffective assistance of postconviction counsel should be

raised in the trial court either by a petition for habeas corpus
or a motion under § 974.06, Stats."                   Id. at 681.

     ¶28      The state argues that we should follow the examples of

Knight and Rothering, and determine that Kyles' petition should

have been filed in the circuit court because that is where the

alleged ineffectiveness occurred.                    According to the state, the

circuit court can provide a remedy to Kyles by exercising its

     11
       Habeas petitions to the court of appeals alleging
ineffective assistance of appellate counsel are often referred
to as "Knight petitions."

                                              12
                                                                            No.   2012AP378-W



inherent power to vacate and reinstate its prior judgment of

conviction, effectively restarting the time period for Kyles to

file a notice of intent to pursue postconviction relief.

       ¶29     The    remedy      proposed    by    the       state    is    unpalatable.

Wisconsin       jurisprudence         has    long   disfavored          extending        time

limits by vacating one judgment and entering a new one.                                    For

example, in Richter v. Standard Mfg. Co., 224 Wis. 121, 128, 271

N.W.    14     (1937),      the   court     rejected      a    motion       to    modify    an

interlocutory judgment so that it would be embodied in a final

judgment on a later date, thereby extending the time in which to

appeal. It stated that such an action "is quite unthinkable."

Id.     Likewise, in Filer & Stowell Co. v. Chicago, Milwaukee &

St. Paul Ry. Co., 161 Wis. 591, 596-97, 155 N.W. 118 (1915), the

court declined a request to set aside a judgment so that an

appellate deadline could be reinstated, stating "[t]o set aside

the award here, as a means of circumventing the statute, would

be equivalent to abrogating it and giving a new right of appeal

which would be an exercise of legislative power."
       ¶30     The court expressed a similar distaste for allowing a

circuit      court    to    vacate    and    reinstate        a   judgment        to   remedy

ineffective assistance of counsel in Knight, 168 Wis. 2d 509.

In determining that the circuit court was not the appropriate

forum, Knight noted that the remedies available to the circuit

court    under       Wis.    Stat.    § 974.06      were       limited      to     vacating,

setting aside, or correcting a sentence.                       Id. at 519.          Although

the    court    acknowledged         that    "a   circuit      court     may      indirectly
remedy the consequences of ineffective assistance of appellate
                                             13
                                                                        No.    2012AP378-W



counsel through vacating and reinstating a sentence in order to

allow a fresh appeal," it concluded that "we do not believe that

the   legislature      intended     the    circuit       courts    to   utilize        sec.

974.06 in this oblique manner."             Id.

      ¶31   Subsequent      cases    have       stressed    the    importance       of    a

remedy in determining the forum for an ineffective assistance of

counsel claim.        Rothering     acknowledged that            "[t]he appropriate

forum is that one which is able to link the remedy closely to

the scope of the constitutional violation."                  205 Wis. 2d at 680.

Likewise,   Smalley      stressed     the       importance    of    the       ability    to

provide a remedy when it explained that the appropriate forum

was the court of appeals "because the deadlines contained in

Rule 809.30 are subject to the control of this court."                          State ex

rel. Smalley v. Morgan, 211 Wis. 2d 795, 799, 565 N.W.2d 805

(Ct. App. 1997).

      ¶32   We   acknowledge        that    the    remedy    for    the       denial     of

effective assistance of counsel is to restore the defendant to

the position he or she would have occupied but for counsel's
ineffectiveness.        State v. Quackenbush, 2005 WI App 2, ¶17, 278

Wis. 2d 611, 692 N.W.2d 340 (2004) (citing Betts v. Litscher,

241 F.3d 594, 597 (7th Cir. 2001); State ex rel. Seibert v.

Macht,   2001    WI   67,   ¶20,    244     Wis.    2d    378,    627   N.W.2d      881).

Accordingly, where the alleged ineffectiveness was the failure

to file a notice of intent, the remedy would be to extend the

time period for a defendant to file a notice of intent.                          Id.     As

discussed above, the court of appeals' "authority to extend the
time periods of Rule 809.30 is to the exclusion of the trial
                                           14
                                                                      No.   2012AP378-W



court."         Rembert, 99 Wis. 2d at 406 n.4.                The inability of the

circuit court to provide a remedy suggests that a claim that

counsel was ineffective by failing to file a notice of intent to

pursue postconviction relief should be brought in the court of

appeals.

          ¶33   The approach Kyles advocates for is more in line with

the above        cases focusing on the available remedy.                      Although

Kyles      agrees    that     Knight    and    Rothering       generally    apply,    he

points to subsequent cases that have developed exceptions to the

rule regarding selecting the appropriate forum where the error

allegedly results in the failure to commence an appeal.

          ¶34   In Smalley, 211 Wis. 2d 795, the defendant alleged his

counsel was ineffective for failing to pursue an appeal or file

a    no    merit    report,     denying    him     his   direct    appeal    from    his

conviction.         The court determined that "regardless of whether

such an appeal had to be preceded by a postconviction motion,

[counsel's failure to commence an appeal] can be challenged by a

Knight petition in this court because counsel's inaction in this
court is at issue."           Id. at 798-99.

           ¶35 The court reiterated this exception in State ex rel.

Ford v. Holm, 2004 WI App 22, ¶9 n.4, 269 Wis. 2d 810, 676

N.W.2d 500 ("Although the allegation of ineffective assistance

of    counsel       in   this    case     involves       the   alleged     actions    or

omissions of counsel prior to the filing of an appeal, it is

nonetheless properly raised by way of a Knight petition in this

court.") and State ex rel. Santana v. Endicott, 2006 WI App 13,
¶4, 288 Wis. 2d 707, 709 N.W.2d 515 ("a Knight petition in this
                                              15
                                                                     No.     2012AP378-W



court    provided     the   proper     vehicle       for   defendants      to    attack

appointed counsel's failure to commence an appeal governed by

Wis. Stat. Rule 809.30 or Wis. Stat. Rule 809.32, whether or not

the appeal had to be preceded by a postconviction motion.").

      ¶36   Kyles asserts that we should follow the Smalley and

Santana line of cases and determine that the court of appeals is

the appropriate forum for a claim that counsel's ineffectiveness

resulted in the failure to file a notice of intent to pursue

postconviction relief because counsel's alleged ineffectiveness

amounted to the failure to commence an appeal.                     He contends that

the court of appeals is the correct forum because it can provide

an extension of the timeline for Kyles to file a notice of

intent to pursue postconviction relief.

      ¶37   We agree with Kyles that the issue here is similar to

that addressed in Smalley and Santana.                        Filing a notice of

intent to pursue postconviction relief with the circuit court is

a prerequisite to filing an appeal with the court of appeals.

Wis. Stat. § 809.30(2)(b).             Thus, ineffectiveness that results
in the failure to file that notice is akin to ineffectiveness

involving the failure to commence an appeal.                   It is not a great

stretch to extend the exception from Smalley and Santana to this

type of claim.

      ¶38   Because     the     circuit      court    is   unable    to    provide     a

remedy    for   the   failure     to   file    a     notice   of    intent      to   seek

postconviction relief and because our case law permits similar

claims to be brought in the court of appeals, we determine that
the     court   of    appeals    is    the     proper      forum    for    claims     of
                                          16
                                                                         No.    2012AP378-W



ineffectiveness premised on counsel's failure to file a notice

of intent.         Although claims of ineffective assistance of counsel

should generally be brought in the forum where the alleged error

occurred, if that forum is unable to provide a remedy it is

proper to petition a forum where relief can be granted.

       ¶39    Having determined that the appropriate forum is the

court of appeals, we turn to address the appropriate procedure

for a claim of ineffectiveness premised upon the failure to file

a notice of intent to pursue postconviction relief.                               Although

the parties' briefs suggest that there are two options, filing a

habeas petition and filing a motion to extend time under Wis.

Stat. § 809.82(2), they ultimately agree that a habeas petition

is more appropriate.             We agree.         We conclude that Evans, 273

Wis.   2d    192,     dictates       that     in   most    circumstances         a    habeas

petition is the appropriate procedure to follow.

       ¶40    In    Evans,     the    court    addressed     a    defendant's         motion

under Wis. Stat. § 809.82(2) to extend time to file an appeal or

postconviction motion. 273 Wis. 2d 192.                     Such a motion needs to
show good cause for the extension.                  Wis. Stat. § 809.82(2).               The

defendant's         alleged    good     cause      was     ineffectiveness           of   his

counsel on direct appeal.              Id., ¶21.         The court concluded that a

motion      under    Wis.     Stat.    §    809.82(2)       was   "ill    suited"         for

defendant's request.           Id., ¶51.

       ¶41    The      Evans     analysis          stressed       "the         fundamental

difference between a § (Rule) 809.82(2) motion and a                                  Knight

petition."         Id., ¶37.     It noted that a § 809.82(2) motion is a
procedural mechanism for extending time based on good cause and
                                              17
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does not resolve the merits of an underlying claim or appeal.

Id., ¶38.       The court recognized that the court of appeals has a

lenient policy in granting such extension motions and that the

motions       are    decided     fairly       quickly,         possibly       without      any

response from an adverse party.                Id.

       ¶42    In contrast, Evans stated that Knight petitions are

more substantive, challenging the lawfulness of an individual's

imprisonment        based   on   the       denial      of    effective      assistance     of

counsel.       Id., ¶39.       Determinations of effectiveness of counsel

are often fact-intensive inquiries, which can involve several

important and novel questions of law.                         Id., ¶¶43-44, 52.            The

court noted that unlike § 809.82(2) motions, Knight petitions

may    take    a    substantial      time     to       resolve   due     to       the   issues

involved and fact-intensive nature of their inquiries.                                    Id.,

¶53.

       ¶43    Additionally,          the     court          observed     that       allowing

defendants to use a § 809.82(2) motion to address ineffective

assistance of counsel "would eviscerate our decision in Knight."
Id., ¶56.      Motions under Wis. Stat. § 809.82 are more attractive

to defendants given the court of appeals' lenient policy towards

them    and        the   shorter      timeframes.              Id.     "However,         while

expeditiousness may often be desirous, celerity is no substitute

for    reasoned      judicial    analysis         of    significant      legal      issues."

Id.       Accordingly,         the    court       determined         that     "[u]tilizing

§ (Rule) 809.82(2), a procedural mechanism, as a substitute for

a Knight petition for habeas corpus, so as to avoid making a
substantive         determination      that       a     defendant      was     denied      the
                                             18
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effective      assistance       of    appellate     counsel      constitutes         an

erroneous exercise of discretion."               Id., ¶59.

      ¶44    Although in Evans the alleged error by counsel was not

the failure to file a notice of intent, this is a distinction

without a difference.            Evans was not limited to the exact fact

scenario at issue in that case, but expressed general guidelines

for determining when a Knight petition, as opposed to a motion

under Wis. Stat. § 809.82(2), is appropriate.                    Accordingly, we

reaffirm Evans' holding that the complex legal issues involved

and   fact-intensive           inquiry       required   by     most         ineffective

assistance of counsel claims in the court of appeals requires

the more thorough analysis provided by a Knight petition.12

      ¶45    In   this    case,      Kyles    alleges   that    the         ineffective

assistance resulted in the failure to file a notice of intent.

Kyles asserts that his attorney was unavailable during the 20-

day   time    period     for    filing   a     notice   of   intent         to   pursue

postconviction relief and, despite his letter to Flanagan and

the message his mother left with Flanagan's office communicating
Kyles' desire to appeal, Flanagan failed to file the notice of

intent.      He further alleges that his attorney failed to seek an

extension of the time to file the notice of intent.                     The circuit

      12
       We acknowledge that not all ineffectiveness claims
involve fact-intensive inquiries and complex legal issues. For
example, counsel could miss the deadline for filing a notice of
intent by a day or two due to office failure or incorrectly
noting the deadline.      In such circumstances the truncated
procedure provided by Wis. Stat. § 809.82(2) may be more
appropriate.     See State v. Quackenbush, 2005 WI App 2, 278
Wis. 2d 611, 692 N.W.2d 340.

                                         19
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court is unable to provide the requested relief of extending the

deadline for Kyles to file his notice of intent.                Accordingly, a

Knight petition to the court of appeals was the appropriate

vehicle for Kyles to seek relief.

    ¶46     Finally,        having    determined         that   a     claim      of

ineffectiveness premised upon the failure to file a notice of

intent should be filed via a Knight petition to the court of

appeals, we turn to address whether the Knight petition Kyles

filed was sufficient to entitle him to an evidentiary hearing on

his claims.

    ¶47     The parties agree that if a Knight petition is the

correct procedure, a hearing is required if the petition alleges

sufficient facts which, if true, show that the defendant is

entitled    to    relief.      This   analysis      is   consistent     with    our

jurisprudence.       See Balliette, 336 Wis. 2d 358, ¶18 ("If the

motion raises sufficient facts that, if true, show that the

defendant is entitled to relief, the circuit court must hold an

evidentiary hearing. However, if the motion does not raise such
facts,    'or    presents    only    conclusory     allegations,      or   if   the

record    conclusively      demonstrates     that    the    defendant      is   not

entitled to relief,' the grant or denial of the motion is a

matter of discretion entrusted to the circuit court."); State v.

Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (same);

State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996)

(same).    If fact-finding is necessary, the court of appeals has

the authority "to submit the matter to a referee or to the


                                        20
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circuit court for inquiry into counsel's conduct."                           Knight, 168

Wis. 2d at 521; Wis. Stat. § 752.39.

      ¶48    A    defendant       is    entitled       to    relief     if     "counsel's

actions or inaction constituted deficient performance and [] the

deficiency caused him prejudice."                  State v. Love, 2005 WI 116,

¶30, 284 Wis. 2d 111, 700 N.W.2d 62 (quoting State v. Brunette,

220 Wis. 2d 431, 445, 583 N.W.2d 174 (Ct. App. 1998)).                            Where a

defendant has been deprived counsel altogether, the defendant is

relieved of the burden of showing prejudice.                           Roe v. Flores-

Ortega, 528 U.S. 470, 483 (2000); Strickland v. Washington, 466

U.S. 668, 692 (1984).              Counsel's failure to file a notice of

appeal      after   being        instructed       to    do    so      constitutes      the

deprivation of counsel.                United States v. Nagib, 56 F.3d 798,

801 (7th Cir. 1995).

      ¶49    In     this     case,       Kyles'        Knight        petition     alleges

sufficient facts which, if true, entitle him to relief.                           It sets

forth three bases for counsel's ineffectiveness: (1) the failure

to be available during the 20-day period to file the notice of
intent; (2) the failure to file the notice of intent; and (3)

the failure to seek an extension of time to file the notice of

intent.

      ¶50    In support of those claims, the Knight petition to the

court of appeals and attached exhibits detail Kyles' desire to

appeal, his multiple attempts to contact Flanagan during the 20-

day   time    period       for   filing     the    notice       of    intent     to   seek

postconviction relief, a letter he mailed to Flanagan conveying
his desire that Flanagan file the notice of intent, and a phone
                                           21
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message Kyles' mother left with Flanagan's office stating that

Kyles wished to appeal.               The petition further asserts that when

Kyles finally met with Flanagan after the time period for filing

the notice of intent had expired, Flanagan told him that the

deadline for filing a notice of appeal had expired.                                 It asserts

that after Flanagan became aware of Kyles' desire for an appeal,

he should have filed a motion to extend the deadline for filing

the notice of intent.                 These facts, if true, establish that

Kyles    was    denied       assistance        of    counsel         during       his     appeal.

Accordingly,      Kyles       is     entitled       to    a     hearing      on     his    habeas

petition.

     ¶51       Although the state concedes that the habeas petition

contains sufficient facts which, if true, entitle Kyles to a

hearing, it asserts that this court should not consider Kyles'

claim    regarding      Flanagan's         failure        to    file    a    motion       for    an

extension      because       his   petition         for   review       included         only    two

claims: that Flanagan was unavailable and that Flanagan failed

to file the notice of intent.                  We disagree.
     ¶52       Kyles filed his petition for review pro se.                              As such,

we follow our policy of liberally construing the sufficiency of

pro se petitions.             Love, 284 Wis. 2d 111, ¶29; State ex rel.

L'Minggio v. Gamble, 2003 WI 82, ¶16, 263 Wis. 2d 55, 667 N.W.2d

1.

     ¶53       Construing Kyles'           petition       for review          liberally, we

determine       that    it     was     sufficient         to        raise    the     issue      of

Flanagan's      failure      to    file    a     motion        to   extend    the       time    for
filing    a    notice    of       intent    to      pursue      postconviction            relief.
                                               22
                                                                            No.      2012AP378-W



Kyles' petition alleges that when he met with Flanagan after the

time for filing had expired, Kyles informed Flanagan that he

wanted to appeal.               It further alleges that Flanagan informed

Kyles that there were few non-frivolous issues for appeal, noted

that the time limits for filing had expired, and then changed

the   subject.           The    petition       then    states       that       due    to    this

conversation        "Kyles      believed       that    the        time    to     appeal       his

conviction        was    lost   based     on    Flanagan's        advi[c]e        and      Kyles'

unawareness of a procedural mechanism to restore time limits."

      ¶54    The factual allegations concerning Flanagan's failure

to file a motion to extend the deadline for filing the notice of

intent      are    inextricably          intertwined         with    his       claims       that

Flanagan     was    ineffective          for   failing       to    file    the       notice    of

intent.      Flanagan's failure to seek an extension to file the

notice of intent was just another component of Kyles' claim that

he    was   abandoned          by   counsel,        left   unrepresented             during    a

critical time, and consequently denied his right to appeal.                                    As

discussed above, the deprivation of counsel during an appeal is
per   se    prejudicial.            Nagib,     56   F.3d     at    801.        Thus,       Kyles'

petition for review was sufficient to preserve his claim.

      ¶55    The state also contends that the Knight petition is

procedurally        barred.         It   asserts      that    because      Kyles        already

pursued remedies in the circuit court and the court of appeals,

he is unable to raise his ineffective assistance of counsel

claims again.           We are not persuaded by this argument.

      ¶56    "[O]ne principal reason why defendants are entitled to
counsel on direct appeal is so that they will not make the kind
                                               23
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of   procedural         errors    that    unrepresented      defendants       tend   to

commit."     Betts v. Litscher, 241 F.3d 594, 596 (7th Cir. 2001).

It is incongruous to state that a defendant was denied the right

to counsel and then preclude the defendant from raising a claim

because of errors made due to the absence of counsel.                         Page v.

Frank, 343 F.3d 901, 909 (7th Cir. 2003); see also Coleman v.

Thompson, 501 U.S. 722, 754 (1991) ("if the procedural [error]

is the result of ineffective assistance of counsel, the Sixth

Amendment itself requires that responsibility for the [error] be

imputed to the State").

       ¶57   Here, Kyles' various attempts at appealing his case

pro se after he was allegedly denied counsel were thwarted due

to his lack of legal knowledge and the lower courts' confusion

over   where      and    how     he   should    file   his   claims.      His    first

petition was denied by the court of appeals as inappropriate for

that forum.         When he sought relief in the circuit court, it

determined that he did not correctly allege his claims.                              In

response     to    his    subsequent       petition,     the   court     of   appeals
misconstrued the circuit court's determination as a finding that

Kyles did not show that he instructed his attorney to file a

notice of intent.          The court of appeals has yet to address the

merits of Kyles' claims.                 Accordingly, we reject the state's

argument that Kyles' prior unsuccessful pro se attempts to seek

relief barred Kyles from bringing his Knight petition.

                                           IV

       ¶58   In sum, we determine that the court where the alleged
ineffective assistance of counsel occurred is the proper forum
                                           24
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in which to seek relief unless that forum is unable to provide

the relief necessary to address the ineffectiveness claim.                  The

remedy for an attorney's failure to file a notice of intent to

pursue postconviction relief is an extension of the timeframe to

file the notice.    Because the circuit court is without authority

to extend the deadline to file a notice of intent to pursue post

conviction relief, we conclude that the proper forum here lies

in the court of appeals.        We also conclude that where such a

claim is made to the court of appeals it should be in the form

of a habeas petition pursuant to Knight.

    ¶59    We further conclude that Kyles' habeas petition set

forth sufficient facts to entitle him to an evidentiary hearing

on his ineffective assistance of counsel claims.                Accordingly,

we reverse the decision of the court of appeals and remand to

the court of appeals to appoint a referee or refer the case to

the circuit court for an evidentiary hearing.

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

reversed, and the cause is remanded to the court of appeals.




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