Milton Eugene Warren v. Michael Meisner

2020 WI 55

SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP567-W

COMPLETE TITLE: State of Wisconsin ex rel. Milton Eugene Warren,
Plaintiff-Petitioner-Petitioner,
v.
Michael Meisner,
Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED: June 11, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 18, 2020

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock
JUDGE: Karl Hanson

JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion for a
unanimous Court.
NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-petitioner-petitioner, there were briefs
filed by Robert N. Meyeroff, Milwaukee. There was an oral argument
by Robert N. Meyeroff.

For the defendant-respondent, there was a brief filed by
Robert G. Probst, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Robert G. Probst.

An amicus curiae brief was filed on behalf of Wisconsin State
Public Defender by Joseph N. Ehmann, regional attorney manager;
with whom on the brief was Kelli S. Thompson, state public
defender. There was an oral argument by Joseph N. Ehmann.
 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.

2
 2020 WI 55

NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP567-W
(L.C. No. 2014CF2123)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Milton Eugene
Warren,

Plaintiff-Petitioner-Petitioner, FILED
v.
JUN 11, 2020
Michael Meisner,
Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.

ANN WALSH BRADLEY, J., delivered the majority opinion for a
unanimous Court.

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

remanded.

¶1 ANN WALSH BRADLEY, J. The petitioner, Milton Eugene

Warren, seeks review of an unpublished order of the court of

appeals denying his petition for habeas corpus.1 He filed the

habeas petition after first unsuccessfully seeking Wis. Stat.

1State ex rel. Warren v. Meisner, No. 2019AP567-W,
unpublished order (Wis. Ct. App. Apr. 8, 2019).
 No. 2019AP567-W

§ 974.06 (2017-18)2 postconviction relief in the circuit court.3

In both the habeas petition and the postconviction motion, Warren

averred ineffective assistance of counsel for alleged errors

taking place after conviction by the failure to raise a claim that

his trial counsel was ineffective.

¶2 Presented with Warren's postconviction motion, the

circuit court concluded that Warren had sought relief in the wrong

forum. Pursuant to State v. Starks, 2013 WI 69, 349 Wis. 2d 274,

833 N.W.2d 146, it determined that rather than filing his

postconviction motion in the circuit court, Warren should instead

have filed a habeas petition in the court of appeals.

¶3 Following the circuit court's direction, Warren

subsequently filed a habeas petition in the court of appeals. The

court of appeals denied the petition, concluding that Warren did

not follow the correct procedural mechanism. Specifically, it

determined that he should have filed an appeal of the circuit

court's denial of his postconviction motion rather than a habeas

petition.
¶4 Warren contends that the circuit court and court of

appeals decisions leave him effectively without a forum for

resolution of his ineffective assistance of counsel claim and that

the proper forum for the claim is in the circuit court. Further,

he asserts, and the State agrees, that language from Starks should

2All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
3The Honorable Karl R. Hanson, Rock County Circuit Court,
presided.

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 No. 2019AP567-W

be withdrawn because it contradicts the established framework for

determining the proper forum for his claim.

¶5 We reaffirm that the Knight/Rothering4 framework remains

the correct methodology for determining the appropriate forum for

a criminal defendant to file a claim relating to the alleged

ineffectiveness of counsel after conviction. Both Knight and

Rothering premised their decisions on the forum in which the

alleged ineffectiveness took place. Applying this framework, we

conclude that the circuit court is the appropriate forum for

Warren's claim that postconviction counsel was ineffective for

failing to assert an ineffective trial counsel claim. Further, we

withdraw paragraph four of Starks because it is contradictory to

this conclusion. Additionally, to the extent language in

paragraphs 30-31, 34-35, and throughout Starks contradicts our

conclusion in this case, it is also withdrawn. Finally, we also

modify paragraph 41 of Starks.

¶6 Accordingly, we reverse the decision of the court of

appeals and remand to the court of appeals with directions.
I

¶7 Warren was convicted after a jury trial of three drug

related offenses——possession with intent to deliver more than 50

grams of heroin, possession of THC as a second or subsequent

offense, and contributing to the delinquency of a minor. Following

his conviction, and with the assistance of counsel, Warren appealed

See State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992);
4

State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556
N.W.2d 136 (Ct. App. 1996) (per curiam).

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 No. 2019AP567-W

his judgment of conviction. He pursued a direct appeal without

first filing in the circuit court a motion for postconviction

relief pursuant to Wis. Stat. § (Rule) 809.30.5

¶8 Thus, rather than pursuing a remedy in the circuit court

through a motion for postconviction relief, Warren filed a notice

of appeal from his judgments of conviction, proceeding directly to

the court of appeals. He raised two issues before the court of

appeals. First, he challenged the sufficiency of the evidence to

support his convictions. Second, he asserted that the circuit

court erred by excluding evidence related to prior bad acts that

Warren wished to use to impeach a witness.

¶9 The court of appeals rejected these arguments and

affirmed Warren's judgments of conviction. State v. Warren, No.

2016AP936-CR, unpublished slip op. (Wis. Ct. App. July 20, 2017)

(per curiam). Warren petitioned for review in this court, which

was denied.

5 Pursuant to Wis. Stat. § (Rule) 809.30(2)(h):

The person shall file in circuit court and serve on the
prosecutor and any other party a notice of appeal or
motion seeking postconviction or postdisposition relief
within 60 days after the later of the service of the
transcript or circuit court case record. The person
shall file a motion for postconviction or
postdisposition relief before a notice of appeal is
filed unless the grounds for seeking relief are
sufficiency of the evidence or issues previously raised.
A postconviction or postdisposition motion under this
section may not be accompanied by a notice of motion and
is made when filed. A notice of appeal filed under this
section shall conform to the requirements set forth in
s. 809.10.

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 No. 2019AP567-W

¶10 Subsequently, Warren filed a postconviction motion in

the circuit court pursuant to Wis. Stat. § 974.06.6 Although

neither the original nor an amended postconviction motion is in

the record in this case, the circuit court characterized the

arguments made as a contention "that Warren's appellate counsel

was ineffective for not raising a claim for the ineffective

assistance of trial counsel."

¶11 The circuit court denied Warren's Wis. Stat. § 974.06

postconviction motion. It premised its determination on Starks,

observing that "[i]n the case at bar, the procedural posture is

nearly identical to that in Starks." The relevant distinction

that arises from Starks, according to the circuit court, is that

between "appellate counsel" and "postconviction counsel." Because

the circuit court opined that "[t]his is a case that involves a

claim for the ineffective assistance of an appellate attorney, as

that appellation is determined [in Starks,]" it concluded that

Warren's claim should be brought in the first instance in the court

of appeals.

6 Wisconsin Stat. § 974.06(1) provides:

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.

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 No. 2019AP567-W

¶12 Following the denial of this postconviction motion in

the circuit court, Warren filed a petition for habeas corpus, often

referred to as a Knight7 petition, in the court of appeals. Again,

Warren alleged that his counsel on direct appeal "performed

deficiently by failing to raise trial counsel's ineffectiveness."

State ex rel. Warren v. Meisner, No. 2019AP567-W, unpublished order

at 2 (Wis. Ct. App. Apr. 8, 2019).

¶13 The court of appeals denied Warren's habeas petition

without ordering a response. Observing that "Warren's writ

petition makes no mention of the postconviction motion proceedings

that followed his direct appeal," it determined that "[t]o the

extent Warren seeks relief from the order denying the motion, his

remedy lies not by writ, but by appeal of that order. A petition

for supervisory writ is not a substitute for an appeal." Id.

(citing State ex rel. Dressler v. Cir. Ct. for Racine Cty., 163

Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991)). Warren moved

for reconsideration, which the court of appeals denied, and he

subsequently petitioned for review in this court.
II

¶14 We are called upon to review the court of appeals' order

denying Warren's petition for habeas corpus. In our review, we

are asked to determine the appropriate forum when a defendant

asserts ineffective assistance of counsel for errors that take

7 "Habeas petitions to the court of appeals alleging
ineffective assistance of appellate counsel are often referred to
as 'Knight petitions.'" State ex rel. Kyles v. Pollard, 2014 WI
38, ¶27 n.11, 354 Wis. 2d 626, 847 N.W.2d 805; see Knight, 168
Wis. 2d 509.

6
 No. 2019AP567-W

place after conviction by the failure to raise the ineffectiveness

of trial counsel. This is a question of law reviewed independently

of the determinations rendered by the circuit court and court of

appeals. See State ex rel. Kyles v. Pollard, 2014 WI 38, ¶16, 354

Wis. 2d 626, 847 N.W.2d 805.

III

¶15 We begin by setting forth the development of our case

law regarding the proper forum for claims of ineffective assistance

of counsel resulting from alleged errors that take place after

conviction. Subsequently, we apply this case law to the facts of

this case. We finally discuss the remedy to which Warren is

entitled.

¶16 This court has previously stated that the traditional

rule "has been that claims of ineffective assistance of counsel

premised on errors occurring 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." Id., ¶25 (citing State
v. Balliette, 2011 WI 79, ¶32, 336 Wis. 2d 358, 805 N.W.2d 334).

This framework began its development in the seminal case of State

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

¶17 In Knight, the defendant alleged that his attorney on

appeal provided ineffective assistance by failing to raise certain

arguments before the court of appeals. Id. at 513. The court

addressed what was at that time a question of first impression in

Wisconsin: "the proper procedure by which a defendant may assert

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 No. 2019AP567-W

a claim of ineffective assistance of appellate counsel . . . ."

Id. at 514.

¶18 Resolving this question, the Knight court concluded

"that to bring a claim of ineffective assistance of appellate

counsel, a defendant should petition the appellate court that heard

the appeal for a writ of habeas corpus." Id. at 520. In arriving

at this determination, the court focused on the fact that "[t]he

appellate court will be familiar with the case and the appellate

proceedings." Id. at 521. The appellate court is therefore "a

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.

¶19 The court of appeals added an additional piece to the

Knight framework in State ex rel. Rothering v. McCaughtry, 205

Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) (per curiam). In

Rothering, the defendant alleged "the failure of postconviction

counsel to bring a postconviction motion before the trial court to

withdraw his plea and raising the issue of ineffective trial
counsel." Id. at 679.

¶20 Just as the court in Knight focused on where the alleged

ineffectiveness occurred, the Rothering court similarly focused

its analysis. "In choosing the appellate court as the appropriate

forum for addressing allegations of ineffective assistance of

appellate counsel, an admittedly close call, the supreme court [in

Knight] sought to pick the forum where the allegedly ineffective

conduct occurred." Id. Indeed, where ineffectiveness is alleged

8
 No. 2019AP567-W

in the court of appeals, it is the appellate court that "has

familiarity with the case and appellate proceedings." Id.

¶21 In Rothering, unlike in Knight, "[t]he allegedly

deficient conduct is not what occurred before [the court of

appeals] but rather what should have occurred before the trial

court by a motion filed by postconviction counsel." Id. It is

the circuit court, and not the court of appeals, that possesses

the necessary background in such a case. Id. at 679-80 (explaining

that the court of appeals "does not have any familiarity with the

claims of ineffective trial counsel and whether the plea should be

withdrawn as they were never raised in [the court of appeals]").

¶22 The court of appeals thus concluded that "a Knight

petition is not the proper vehicle for seeking redress of the

alleged deficiencies of postconviction counsel." Id. at 679.

Instead, "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.

¶23 The key distinction the Rothering court drew was between
"appellate" counsel and "postconviction" counsel. Id. at 678;

Balliette, 336 Wis. 2d 358, ¶32. It offered some guidance in

distinguishing between the two, observing two "principal

manifestations of appellate representation:" briefing and oral

argument. Rothering, 205 Wis. 2d at 678-79 (quoting Watson v.

United States, 536 A.2d 1056, 1057 (D.C. 1987)). However, the

court of appeals also recognized "that often postconviction

counsel and appellate counsel are the same person." Id. at 678
n.4.
9
 No. 2019AP567-W

¶24 This court indicated that it was applying the

Knight/Rothering framework in Starks, 349 Wis. 2d 274, ¶4. In

Starks, the defendant filed a Wis. Stat. § 974.06 postconviction

motion with the circuit court, "alleging that the attorney who

handled his appeal was ineffective for failing to raise ineffective

assistance of trial counsel claims." Id., ¶2.

¶25 At the outset of its opinion, the Starks court observed

what it termed a "procedural problem." Id., ¶4. Specifically, it

stated:

Starks's Wis. Stat. § 974.06 motion, which was filed
with the circuit court, alleged ineffective assistance
of postconviction counsel. However, the attorney who
represented him after his conviction did not file any
postconviction motions and instead pursued a direct
appeal. He was thus not Starks's postconviction counsel
but was rather his appellate counsel. This is
significant because claims of ineffective assistance of
appellate counsel must be filed in the form of a petition
for a writ of habeas corpus with the court of appeals.
By bringing his claim in the circuit court, Starks
pursued his case in the wrong forum.
Id. (citing Knight, 168 Wis. 2d at 520).

¶26 Following this court's decision in Starks, both Starks
and the State moved for reconsideration. As explained in a

concurrence to the denial of the motion for reconsideration:

Both parties took issue with the court's discussion in
the above-quoted paragraph 4. Both parties contended
that on the facts of the case, Starks was correct in
challenging the effectiveness of postconviction counsel
and thus correct in filing his § 974.06 motion in the
circuit court. Correspondingly, both parties contended
that this court's characterization of Starks's motion as
a challenge to the effectiveness of appellate counsel
was incorrect and its assertion that Starks should have

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 No. 2019AP567-W

filed a petition for a writ of habeas corpus in the court
of appeals was thus mistaken.
State v. Starks, 2014 WI 91, ¶21, 357 Wis. 2d 142, 849 N.W.2d 724

(denying reconsideration) (Prosser, J., concurring).8

¶27 The court denied the motion for reconsideration. It

further declined to withdraw the language from its original opinion

in Starks.

¶28 In the present case, in analyzing whether Warren had

properly filed his motion in the circuit court, the circuit court

observed the dissonance between the Knight/Rothering framework and

Starks: "Whereas the Rothering court found that an appellate

attorney who fails to file a postconviction motion is nonetheless

postconviction counsel——at least as to the decision to not file

the postconviction motion——the Starks court found just the

opposite." Following its reading of Starks, the circuit court

thus determined that "[t]he Supreme Court in Starks overruled the

Court of Appeals' holding in Rothering as to when an attorney is

8In addition to this argument, the parties raised two
additional issues on reconsideration. First, Starks argued that
the court should "reconsider its assessment of his substantive
claims 'because that assessment conflicts with controlling and
apparently overlooked legal standards.'" State v. Starks, 2014 WI
91, ¶24, 357 Wis. 2d 142, 849 N.W.2d 724 (denying reconsideration)
(Prosser, J., concurring). Second, the State asserted that
paragraph 41 of the Starks opinion should be modified because it
relied on case law that had been superseded by statute. Id., ¶25;
see State v. Starks, 2013 WI 69, ¶41, 349 Wis. 2d 274, 833
N.W.2d 146.

The first of these arguments has no bearing on the issues
before us in this appeal and accordingly will not be addressed
further. Modification of paragraph 41 of the Starks opinion is
addressed infra at ¶¶41-43.

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 No. 2019AP567-W

considered appellate counsel" and accordingly concluded that

Warren's claim was filed in the wrong forum.

¶29 This case now presents the court with an opportunity to

examine this language of Starks and in essence revisit one of the

issues presented on reconsideration.

IV

¶30 We turn next to apply the framework created by the above-

cited case law to the facts of this case.

¶31 As a starting point, there is much agreement between the

parties. Neither party seeks to alter the longstanding

Knight/Rothering framework or questions its continued vitality.

Further, the parties agree that the circuit court is the proper

forum for Warren's claim.

¶32 We agree with the parties on both of these points.

First, we reaffirm that the Knight/Rothering framework remains the

correct methodology for determining the appropriate forum for a

criminal defendant to file a claim relating to the alleged

ineffectiveness of counsel after conviction.
¶33 Both Knight and Rothering premised their decisions on

the forum in which the alleged ineffectiveness took place. In

Knight, the court noted that "[t]he appellate court will be

familiar with the case and the appellate proceedings[,]" so it is

a better forum for determining questions of the ineffectiveness of

appellate counsel. Knight, 168 Wis. 2d at 521. Likewise, in

Rothering the court observed that the court of appeals "does not

have any familiarity with the claims of ineffective trial counsel"
and is ill-suited to address "the conduct of postconviction counsel
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 No. 2019AP567-W

and issues which were never preserved for appeal." Rothering, 205

Wis. 2d at 679.

¶34 Such an approach makes eminent sense. The circuit court

reviews allegations of conduct that took place (or should have

taken place) before the circuit court, and an appellate court

examines allegations of conduct that took place (or should have

taken place) before it. This division of labor allows each court

to play to its strengths and to answer questions applying its

unique expertise. See Knight, 168 Wis. 2d at 521 (explaining that

an appellate court is "better suited . . . than is the circuit

court to determine whether appellate counsel's performance was

deficient and prejudiced the defendant's appeal" because "[t]hese

determinations involve questions of law within the appellate

court's expertise and authority to decide de novo").

¶35 Perhaps some of the confusion that appears to have arisen

regarding this framework is due to the nomenclature that decisions

have used describing "appellate counsel" and "postconviction

counsel." Indeed, these two terms often refer to the same person.
Rothering, 205 Wis. 2d at 678 n.4.

¶36 Rather than a determination of "who" committed the

error, we think it clearer to focus the inquiry on "where" the

alleged ineffectiveness occurred. If the acts or omissions that

constitute alleged ineffective assistance of counsel took place in

the circuit court, then the circuit court is the proper forum for

such claims to be filed in the first instance. Likewise, alleged

errors occurring in an appellate court are best addressed in the
appellate court where the alleged error occurred.
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 No. 2019AP567-W

¶37 Certain language in Starks contradicts this framework,

and we hereby withdraw paragraph four of that opinion because it

is inconsistent with our determination in the present case. See

Starks, 349 Wis. 2d 274, ¶4. Specifically, the Starks court

labeled an attorney who "did not file any postconviction motions

and instead pursued a direct appeal" as "appellate counsel." Id.

Therefore, it determined that the claim should have been filed in

the form of a petition for habeas corpus in the court of appeals.

Id.

¶38 Additionally, the State cautions that some language in

paragraphs 30-31 and 34-35 of Starks may also be interpreted to

overrule the Knight/Rothering framework because it refers to

Starks's challenge as one to his appellate counsel rather than

postconviction counsel. To the extent that language in these

paragraphs and any other language throughout Starks contradicts

our holding today, the language cannot stand and is also withdrawn.

¶39 The Starks court's determination that the defendant's

challenge was to "appellate counsel" was incorrect under the
Knight/Rothering framework, which we reaffirm in the present case.

The claim of ineffectiveness made in Starks was that counsel was

ineffective "for failing to raise ineffective assistance of trial

counsel claims." Id., ¶2. That is, Starks alleged that counsel

was ineffective for failing to file a motion for postconviction

relief and seek a Machner hearing.9 This is an error of omission

9See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.
App. 1979).

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 No. 2019AP567-W

that took place in the circuit court. The time for filing this

motion was prior to the filing of a notice of appeal, and such a

Machner hearing would have taken place before the circuit court.

¶40 Nothing in the Starks opinion provides any indication

that the court intended to modify the Knight/Rothering framework.10

As stated above, such a framework remains the law. Thus, we

withdraw paragraph four in Starks.

¶41 We diverge briefly from the issues as presented by the

parties. The State Public Defender, as amicus, asks us to withdraw

language from paragraph 41 in Starks. In the interest of avoiding

confusion, we grant this request. See Starks, 349 Wis. 2d 274,

¶41.

¶42 At paragraph 41, the Starks court wrote, "A defendant

may file a § 974.06 motion only after he has 'exhausted his direct

remedies[,] which consist of a motion for a new trial and [an]

appeal.'" Id. (quoting Peterson v. State, 54 Wis. 2d 370, 381,

195 N.W.2d 837 (1972)). The State Public Defender contends that

this language incorrectly implies that Wis. Stat. § 974.06
litigation is available only after a person has taken a direct

appeal.

See Starks, 357 Wis. 2d 142, ¶49 (denying reconsideration)
10

(Prosser, J., concurring) ("In any event, no one on the court
disputes the basic correctness of the holdings in Knight and
Rothering as to where to file a petition for a writ of habeas
corpus challenging the effectiveness of appellate counsel or a
§ 974.06 motion challenging the effectiveness of postconviction
counsel, for not challenging, or deficiently challenging, the
alleged ineffective assistance of trial counsel.").

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 No. 2019AP567-W

¶43 An examination of the relevant statutes confirms that

amicus is correct. The language in the 1972 Peterson decision, on

which Starks relies, was superseded by a statutory amendment

enacted in 1977. See § 130, ch. 187, Laws of 1977. This amendment

changed the language of Wis. Stat. § 974.06 to provide: "After

the time for appeal or postconviction remedy provided in s. 974.02

has expired," a postconviction motion pursuant to § 974.06 may be

filed. Wis. Stat. § 974.06(1). As this statute provides that a

§ 974.06 motion may be filed after the time for direct appeal has

expired, and the ability to file such a motion is not tied to a

direct appeal actually being taken, we withdraw the sentence in

paragraph 41 of Starks that suggests otherwise.

¶44 Returning to the parties' issues at hand, we next apply

the Knight/Rothering framework. We agree with the parties that

the proper forum for Warren's claim is in the circuit court. As

the circuit court stated, Warren argued that his counsel after

conviction "was ineffective for not raising a claim for the

ineffective assistance of trial counsel."
¶45 The alleged error is one of omission (failing to file a

motion for postconviction relief) that took place in the circuit

court. Had Warren's attorney on appeal raised a claim that trial

counsel was ineffective, a Machner hearing would have been

requested in the circuit court. No proceedings in the court of

appeals would have immediately resulted had counsel filed a motion

for postconviction relief. The alleged error thus occurred prior

to the filing of the notice of appeal. Pursuant to the established

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 No. 2019AP567-W

and now reaffirmed Knight/Rothering framework, the proper forum

for such a claim is the circuit court.

¶46 Accordingly, we conclude that the circuit court is the

appropriate forum for Warren's claim that postconviction counsel

was ineffective for failing to assert an ineffective trial counsel

claim.

V

¶47 Having determined that the proper forum for Warren's

claim is the circuit court, we turn next to the proper remedy.

¶48 "Habeas corpus is essentially an equitable doctrine, and

a court of equity has authority to tailor a remedy for the

particular facts." State ex rel. Memmel v. Mundy, 75 Wis. 2d 276,

288, 249 N.W.2d 573 (1977). In fashioning a remedy here, we seek

to fulfill three goals. First, Warren's claim must be heard on

the merits. As analyzed above, the circuit court erroneously

dismissed Warren's Wis. Stat. § 974.06 motion due to the now-

withdrawn language in Starks. The State agrees that Warren is

entitled to his day in court.
¶49 Second, we must respect the fact that it is the court of

appeals' decision we are reviewing and not the circuit court's.

Although the circuit court's decision is essential to our analysis,

that decision is not before us——this is a writ case, separate and

distinct from Warren's criminal case. See State ex rel. Fuentes

v. Wis. Ct. App., Dist. IV, 225 Wis. 2d 446, 450, 593 N.W.2d 48

(1999) ("Although a habeas corpus petition normally arises out of

criminal proceedings, it is a separate civil action founded upon

17
 No. 2019AP567-W

principles of equity."). This case, as it comes to this court,

originated at the court of appeals.

¶50 Third, we must make clear that Warren's initial Wis.

Stat. § 974.06 motion was properly filed. This is important in

relation to Warren's rights to federal habeas review. Indeed, a

"properly filed" postconviction motion tolls the one-year

limitations period for a federal habeas petition: "The time during

which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or

claim is pending shall not be counted toward any period of

limitation under this subsection." 28 U.S.C. § 2244(d)(2); see

State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶24 n.5, 290

Wis. 2d 352, 714 N.W.2d 900.

¶51 Keeping in mind these three goals, we remand the case to

the court of appeals with directions to remand to the circuit court

for Rock County to construe the habeas petition as a Wis. Stat.

§ 974.06 postconviction motion.11 This remedy provides Warren with

11 Our precedent indicates that this court has the authority
to construe Warren's Knight petition as a Wis. Stat. § 974.06
motion and transfer it to the appropriate court. See State ex
rel. L'Minggio v. Gamble, 2003 WI 82, ¶25, 263 Wis. 2d 55, 667
N.W.2d 1 (construing petition for habeas corpus as petition for
certiorari and transferring to circuit court); bin-Rilla v.
Israel, 113 Wis. 2d 514, 523-24, 335 N.W.2d 384 (1983)
(transferring a habeas petition challenging conditions of
confinement that was filed in the court of appeals to the circuit
court because "the circuit court is better suited than the court
of appeals or this court to process this petition"). (continued)

18
 No. 2019AP567-W

a determination on the merits of his claim in the circuit court

and acknowledges that this case originated in the court of appeals.

We determine further that Warren's original Wis. Stat. § 974.06

motion in the circuit court was properly filed.

¶52 In sum, we reaffirm that the Knight/Rothering framework

remains the correct methodology for determining the appropriate

forum for a criminal defendant to file a claim relating to the

alleged ineffectiveness of counsel after conviction. Both Knight

and Rothering premised their decisions on the forum in which the

alleged ineffectiveness took place. Applying this framework, we

conclude that the circuit court is the appropriate forum for

Warren's claim that postconviction counsel was ineffective for

failing to assert an ineffective trial counsel claim. Further, we

withdraw paragraph four of Starks because it is contradictory to

this conclusion. Additionally, to the extent language in

paragraphs 30-31, 34-35, and throughout Starks contradicts our

conclusion in this case, it is also withdrawn. Finally, we also

modify paragraph 41 of Starks.

See also Wis. Stat. § 807.07(2) ("If the tribunal from which
an appeal is taken had no jurisdiction of the subject matter and
the court to which the appeal is taken has such jurisdiction, the
court shall, if it appears that the action or proceeding was
commenced in the good faith and belief that the first named
tribunal possessed jurisdiction, allow it to proceed as if
originally commenced in the proper court and shall allow the
pleadings and proceedings to be amended accordingly; and in all
cases every court where objection to its jurisdiction is sustained
the cause shall be certified to some court having jurisdiction,
provided it appears that the error arose from mistake.").

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¶53 Accordingly, we reverse the decision of the court of

appeals and remand to the court of appeals with directions.

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

and the cause is remanded to the court of appeals with directions.

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