¶ 39. {concurring). Laches is an equitable defense based upon the petitioner's unreasonable delay in bringing an action under circumstances in which such delay is prejudicial to the defendant. Sawyer v. Midelfort, 227 Wis. 2d 124, 159, ¶ 74, 595 N.W.2d 423 (1999) (citation omitted). It is an affirmative defense, where the burden is on the defense to show that the plaintiffs unreasonably delayed in bringing the lawsuit. Id., ¶ 75; Becker v. Becker, 56 Wis. 2d 369, 374-75, 202 N.W.2d 688 (1972). In the absence of any fact-finding proceedings that relate to Marvin Coleman's (Coleman's) habeas corpus petition, I fail to see how the majority can conclude that (1) the State proved that Coleman unreasonably delayed in filing his petition; or (2) the element of laches that the State had knowledge that Coleman would assert an ineffective assistance of counsel claim is not *374an issue in this review. Majority op., ¶ 2, including n.l. The effect of these conclusions is to shift the burden of proof to the petitioner, Coleman, and to render the court of appeals and this court into fact-finding bodies in excess of our respective jurisdictions.1
¶ 40. With respect to laches, what exactly is before this court, having been considered by the court of appeals? We have before us Coleman's February 19, 2004, habeas petition with attachments, and the State's response to the habeas petition. The petition alleges that in 1986, then 20-year-old Coleman pled guilty to nine felonies in Rock County Circuit Court. The petition alleges that Coleman applied for and received appellate counsel to represent him in any postconviction and appellate matters. The petition alleges that appellate counsel advised Coleman that "he had no chance of obtaining any relief on appeal," and that Coleman accepted that advice and pursued no appeal. The petition alleges that Coleman has since retained current counsel, and current counsel has concluded that Coleman had a meritorious and ultimately determinative challenge to the circuit court's denial of his suppression motion. The petition alleges that as a result, Coleman was deprived of effective assistance of appellate counsel. As to the reasons for delay in filing his petition, the petition alleges that Coleman initially accepted appointed counsel's advice, having no reason to question it, and it was not until he married years later that he acquired the monetary resources to retain counsel to review prior counsel's performance. The petition further alleges that Coleman was not entitled to appointed counsel.
*375¶ 41. The attachments refer to three written communications between appellate counsel and Coleman, between May 1987 and May 1988, that relate to the original decision not to appeal. Majority op., ¶¶ 8-10. Of course, because these communications occurred approximately 16 to 17 years prior to Coleman's February 19, 2004, habeas petition, none of those attached communications refer to the delay or the reasons for the delay. The only communication from Coleman asked appellate counsel to "[pjlease do not close my appeal if the deadline has not accured [sic]".2
¶ 42. What was the State's response to Coleman's February 2004 habeas petition? "Respondents LACK SUFFICIENT INFORMATION to specifically address the allegation of deficient performance contained in Coleman's petition.. . ." (Emphasis in original.) The response asserted that the petition be deemed barred by laches. The response alleges that "[i]t appears that between 1988 and 2004, Coleman took absolutely no action to challenge the performance of his appellate counsel, although the legal means to do so was available to him." "[TJhere is no indication Coleman was under any disability that precluded him from . .. seeking pro se a review of appellate counsel's performance before 2004." "Coleman has not demonstrated that he sought prompt, speedy relief as required by Wis. Rule § 809.51(1)." "This very substantial delay in pursuing his challenge to appellate counsel's performance is manifestly unreasonable." (Emphases added.)
¶ 43. No hearing was held to discern the facts behind the allegations in either the habeas petition or the State's response. Yet, this is not a situation where the facts are undisputed and there is only one reason*376able inference. See Sawyer, 227 Wis. 2d at 159 ("Where the facts are undisputed and there is only one reasonable inference, the court may conclude as a matter of law that the elements are met.") (citation omitted).
¶ 44. The State's response asserts that "it appears" that Coleman took no action between 1988 and 2004, but there is no way to know that absent a hearing. The State alleges that "there is no indication" that Coleman was under a disability that precluded pro se review of counsel's performance, yet not only was there no hearing on this point, but Coleman asserted that he relied on counsel's advice that his case lacked merit. This then presents a factual dispute as to why no pro se action was sought. The State finally maintains that "Coleman has not demonstrated" that he sought prompt, speedy relief as required by the habeas statute. Yet, not only does Coleman assert that he initially asked for an appeal, but his subsequent communication with appellate counsel a year later indicated that he still wanted an appeal. In addition to creating a factual dispute on this point, the State's argument clearly shifts the burden to the petitioner that laches should not apply, instead of leaving the burden on the party asserting the defense of laches, the State.3 Given these factual disputes, it is clearly inappropriate for either the court of appeals or this court to decide this petition without further fact-finding. Id.
¶ 45. This case is not unlike State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 282, 392 N.W.2d 453 (Ct. App. 1986). In that action, the petitioner sought judicial *377review of his probation revocation from 1974. Id. at 272. McMillian's case then languished in the circuit court in excess of eight years, with no transcript of the proceedings having ever been filed. Id. at 274. In denying his petition, the circuit court and the department faulted McMillian for "failing to 'pursue' his certiorari action in not making further demands or inquiries concerning the status of his case." Id. at 282. The court of appeals "reject[ed] this attempt to shift the blame for delay in the proceedings from those who have failed to act in the manner required by law to one who has complied with all legal requirements." Id.
¶ 46. Similarly, in this matter Coleman sought and received appellate counsel to represent him in postconviction and appellate matters. After initially being informed that his case lacked merit, his last known communication to appellate counsel asked counsel to keep Coleman's appeal open. In other words, Coleman took the steps he was legally required to take to pursue postconviction relief. Given the factual disputes that exist for the reasons for his delaying subsequent actions, and given the fact that the burden of proving laches falls on the party asserting that affirmative defense, this court should not be making factual findings based on Coleman's failure to establish or prove anything. See Sawyer, 227 Wis. 2d at 159.
¶ 47. I fully agree with the majority's observation that the court of appeals, in State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997), "appears to have conflated its analysis of the habeas petition's timeliness with the unreasonable delay element of laches." Majority op., ¶ 25. The majority accurately observes that "[w]hile the analysis of Smalley's delay was prefaced with an explanation of laches principles, the Smalley decision actually rests on *378the application of habeas principles." Majority op., ¶ 25. The majority correctly concludes 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." Majority op., ¶ 25 (emphasis added) (citation and footnote omitted).
¶ 48. Unfortunately, the majority conflates in exactly the same manner as the Smalley court its analysis of the habeas petitioner's timeliness with the unreasonable delay element of laches. In applying the laches affirmative defense to the facts of this case, the majority points out that "Coleman does not assert that he asked counsel to appeal and that counsel ignored his request."4 Majority op., ¶ 31. This places the burden on Coleman as opposed to the State. The majority then agrees that "Coleman has made no showing of why he failed to attempt to bring his concerns before a court on a pro se basis, as so many incarcerated persons have."5 Majority op., ¶ 32. The majority once again places the burden on Coleman. The majority then concludes that Coleman knew of his claim for more than 16 years, but that he did nothing.6 Majority op., ¶ 33. Again, the *379burden is placed on Coleman. In the absence of any-hearing to determine the facts that exist in this matter, it is clear that the majority, instead of analyzing the laches defense offered by the State, has applied the timeliness factor under habeas principles in the same manner as the court of appeals in Smalley.7
¶ 49. On the basis of this record, in the absence of any hearing or fact-finding process, I conclude that the State has failed to meet its burden of proving that Coleman unreasonably delayed in bringing this claim, or that the State lacked any knowledge that Coleman would assert the right on which his habeas petition is based. As the majority has already determined that a remand is necessary to ascertain whether the State has been prejudiced by the delay, I would remand this matter to the court of appeals for a determination of all three elements of laches. Accordingly, I respectfully concur.
¶ 50. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this concurring opinion.
See majority op., ¶ 2 n.2, citing Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980).
It appears that by then the deadline had passed.
The State's argument on the first two points would also relieve the State of its burden with respect to the affirmative defense of laches, as its position does not clearly establish who has to prove what, so that the inference is that the petitioner did not present enough here.
As noted earlier, this "fact" is subject to dispute, as Coleman's last instructions of record to appellate counsel were to keep his appeal, not close his appeal. There was no hearing to resolve this factual dispute.
As noted earlier, this "fact" is also subject to dispute, as Coleman alleged that he relied on appellate counsel's advice and lacked the means to hire another lawyer. Once again, there was no hearing to resolve this factual dispute.
As noted earlier, this "fact" is also subject to dispute, as Coleman clearly asserts that he was not aware of the merits of his claim, having relied upon appellate counsel's advice, and *379lacked the means to hire counsel to review the merits of his claim until he married years later. Once again, there was no hearing to resolve this factual dispute.
The opinion also raises a clear inference that the passage of time alone is enough to meet the unreasonable delay element of the laches defense. With this, I heartily disagree.