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ON APPEAL: Which writ depends on decision you want to challenge

Amelia L. Bizzaro

Amelia L. Bizzaro

Appellate and post-conviction practice is not just limited to direct appeals, §974.06 motions or motions to modify a sentence. Several decisions are reviewable in state court by either a petition for writ of certiorari or a petition for writ of habeas corpus. The question of which to do when depends on the type of decision you seek to challenge.

Petitions for Writ of Certiorari

A cert petition often seeks to challenge an administrative decision, including a decision to revoke a defendant’s supervision, decision to deny parole, and program review committee decisions. In order to file, the petitioner must demonstrate that he has exhausted his remedies. For those seeking to challenge a decision to revoke supervision, for example, that means first appealing to the Administrator of the Division of Hearings & Appeals. How to exhaust depends on the type of decision the petitioner seeks to challenge. It’s important to find out exactly what steps must be taken to exhaust and the time for doing it because failure to exhaust will result in the dismissal of the petition.

A cert petition must be filed within 45 days of the decision the petitioner seeks to challenge. This deadline cannot be extended. The petition is really more of a package of documents. In addition to the petition, the petitioner should include the writ, which orders the agency under review to assemble the record and file it with the court within a certain period of time; any documentation necessary to demonstrate exhaustion; an affidavit and verification in support of the petition; and either the filing fee or a copy of the order appointing counsel.

A cert petition is limited to the record. Any challenge to a decision that includes information outside of the record must be done by a petition for a writ of habeas corpus. Because the court cannot consider any information outside the record, there will be no hearing on the petition. Instead, the court will likely sign the writ ordering compilation of the record, and once the record is returned, will enter an order with a briefing schedule. The court will decide the matter on the petition, briefs and record.

The circuit court’s review is limited to whether (1) the agency acted within its jurisdiction; (2) the agency acted according to law; (3) the agency’s action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) the evidence was such that it might reasonably make the order or determination in question. State ex rel. Purifoy v. Malone, 2002 WI App 151, ¶13, 256 Wis.2d 98, 648 Wis.2d 1.

The standard is high and difficult to meet, and the decisions take time. It is entirely likely that a person challenging a 12-month deferment by the parole commission will face parole again before the circuit court decides his petition. That does not mean that the petition is moot, however. See Richards v. Graham, 2009AP473 (District IV, June 16, 2011) (recommended for publication) (“we will decide an issue, even if moot, when the issue will likely reoccur but will continue to evade appellate review because of the substantial time required for the appellate review process.”)

The petition must be served on the respondent. Depending on the type of decision that is the basis for the challenge, the respondent may agree to service by mail, but that is not always the case.

Petitions for Writ of Habeas Corpus

Unlike a cert petition, one for habeas is not limited to the record nor is there any deadline for filing. Rather, it is extraordinary relief that is available only when the following factual circumstances are present: (1) the petitioner is restrained in his liberty; (2) the restraint is imposed by a tribunal without jurisdiction or in violation of the constitution; and (3) there is no other adequate remedy available in law.

The court’s review is limited to determining whether the order that resulted in the restraint of liberty was made in violation of the constitution or whether the court that issued that order lacked the jurisdiction or legal authority to do so.

Like a cert petition, the habeas petition should be accompanied by an affidavit and verification in support of it as well as a writ of habeas corpus. The petitioner is responsible for providing the court whatever it needs to decide the petition. Unlike a cert petition, there is no order for a record to be assembled and filed. The petitioner must create the record.

Also like a cert petition, a habeas petition must be served on the respondent, which may or may not consent to service by mail.

The petitioner may appeal the decision denying either his petition for writ of certiorari or habeas corpus by timely filing a notice of appeal, docketing statement and statement on transcript.

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