United States District Court, E.D. Wisconsin
J.P. STADTMUELLER, U.S. District Judge.
On November 23, 2015, Edward Alex Meade filed a petition for a writ of habeas corpus. (Docket #1). The Court screened that petition and noticed that it might be untimely. (See Docket #8 at 3). Accordingly, the Court requested that the respondents (hereinafter “the State”) address the issue of timeliness (and any other potentially-dispositive issue), after which Mr. Meade would have the opportunity to file a response and the State could file a reply. (Docket #8 at 3-4). That matter is fully briefed (Docket #13, #18, #19), and the Court now turns to decide it.
It begins by providing the timeliness standards applicable to habeas petitions filed pursuant to 28 U.S.C. § 2254, such as Mr. Meade’s. A one-year limitations period applies. See 28 U.S.C. § 2244(d)(1). That limitations period, however, is subject to a number of special rules, such that it is often difficult to pinpoint the date on which the period has expired.
The first rule relates to the date on which the limitations period begins to run; 28 U.S.C. § 2244(d)(1) provides that the limitations period runs from the latest of:
(1) the date that the judgment became final following the conclusion of direct review or the expiration of the time period for seeking direct review;
(2) the date on which a State-created impediment is removed;
(3) the date on which the Supreme Court recognized a new constitutional right; or
(4) the date on which the factual predicate for a claim could have been discovered.
See, e.g., 28 U.S.C. §§ 2244(d)(1)(A-D). Once the Court has determined the date on which the conviction became final, it must next determine how much of the limitations period has run, following that date. In determining how much of the limitations period has run, the Court must generally consider a second, third, and fourth rule, all of which are distinct but related.
The second rule is statutory tolling, pursuant to 28 U.S.C. § 2244(d)(2), which provides that “[t]he 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 the limitation period.
And, if statutory tolling does not apply, then the third rule-equitable tolling, see, e.g., Holland v. Florida, 560 U.S. 631 (2010)-might fill in to exclude some of the period between the petitioner’s conviction becoming final and his filing a habeas petition. Equitable tolling, however, is reserved for extraordinary circumstances, and applies only when a petitioner has “(1) pursued his rights diligently, and (2) ‘some extraordinary obstacle stood in his way and prevented timely filing.’” Gladney v. Pollard, 799 F.3d 889, 894 (7th Cir. 2015) (citing Holland, 560 U.S. at 649).
Finally, if equitable tolling does not apply, then the fourth rule-the actual innocence gateway, see McQuiggin v. Perkins, 569 U.S. ___, 133 S.Ct. 1924, 1931 (2013)-might apply to render the limitations period inapplicable. See Gladney, 799 F.3d at 894 (citing McQuiggin, 133 S.Ct. at 1931; Schlup v. Delo, 513 U.S. 298 (1995)). The actual innocence gateway is also very narrow, but allows a petitioner to assert an untimely claim when “‘in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’” Gladney, 799 F.3d at 896 (quoting House v. Bell, 547 U.S. 518, 537 (2006); Schlup, 513 U.S. at 327; McQuiggin, 133 S.Ct. at 1935).
Having considered all of these rules, the Court is left to conclude that Mr. Meade’s habeas petition is untimely.
First, he filed it much more than one year after his conviction became final, even after the Court has factored in statutory tolling. Mr. Meade’s conviction became final on April 23, 2012, which was 90 days after the Wisconsin Supreme Court denied his petition for review in his direct appeal, at the expiration of the time for requesting certiorari before the United States Supreme Court. (Docket #13, Exs. A-C); Gladney, 799 F.3d at 794 (citing Morales v. Boatwright, 580 F.3d 653, 657 (7th Cir. 2009)). It was tolled almost immediately thereafter when Mr. Meade filed a post-conviction Knight petition, on April 26, 2012. (Docket #15, Ex. D). The Wisconsin Court of Appeals denied Mr. Meade’s Knight petition on November 12, 2012, and Mr. Meade did not appeal, meaning that the limitations period started to run on that day or shortly thereafter. See, e.g., Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing Carey v. Saffold, 536 U.S. 214 (2002)) (both holding that state post-conviction proceedings are “pending” during the period between a lower-court’s adverse determination and a timely notice of appeal therefrom; at latest, because he did not appeal to the Wisconsin Supreme Court, the limitations period would have begun to run at the expiration of the 30 days in which he could have sought review before the Wisconsin Supreme Court, Wis.Stat. § 808.10). Mr. Meade filed another post-conviction motion on April 15, 2013, which arguably statutorily tolled the limitations period, while it was pending before the state courts, through November 17, 2014, the date on which the Wisconsin ...