United States District Court, W.D. Wisconsin
TIMOTHY E. SVEA, Petitioner,
DENISE SYMDON, Respondent.
OPINION & ORDER
D. PETERSON, District Judge.
Timothy E. Svea is in the custody of the Wisconsin Department
of Corrections, currently on active community supervision.
Petitioner has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his 2002
conviction in the Circuit Court for Marathon County,
Wisconsin. Petitioner has paid the $5 filing fee, and so the
next step is for the court to preliminarily review the
petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases. Under Rule 4, the court must dismiss the petition
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court.”
petition is untimely. But before dismissing the petition, the
court will afford petitioner a last opportunity to
demonstrate that he is entitled to equitable tolling.
court draws the following facts from the petition, the
memorandum in support of the petition, and petitioner’s
time of his conviction, petitioner was a Catholic priest. He
pleaded guilty to one count of second-degree sexual assault
of a child, five counts of exposing genitals to a child, one
count of false imprisonment, and one count of fourth-degree
sexual assault of a child. On February 25, 2002, the Circuit
Court for Marathon County sentenced petitioner to 20
years’ probation with one-and-a-half years’
conditional jail time; 20 years (10 in custody, 10 on
extended supervision) were imposed and stayed.
did not directly appeal his conviction. Instead, nearly 11
years later, petitioner moved in the circuit court to
withdraw his guilty plea. Petitioner’s postconviction
counsel argued that: (1) petitioner was incompetent when he
entered his plea; (2) petitioner did not have the benefit of
effective assistance of counsel when he entered his plea; and
(3) petitioner’s plea was not knowing, intelligent, and
voluntary. On November 4, 2013, the circuit court denied the
motion without an evidentiary hearing.
appealed the decision; the Wisconsin Court of Appeals
affirmed the circuit court’s decision on October 21,
2014. Petitioner filed a timely petition for review with the
Wisconsin Supreme Court; the court denied the petition on
January 12, 2015. Petitioner did not file a petition for
certiorari with the United States Supreme Court.
court, petitioner filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on April 12, 2016.
Petitioner raises the same three grounds for relief in his
petition: (1) he was not competent to enter his guilty plea;
(2) his trial counsel was ineffective; and (3) his plea was
not knowing, intelligent, and voluntary.
support of his claims, petitioner alleges that at the time of
his conviction, he had been in an out-of-state mental health
institution, where he had been receiving treatment for
hallucinations, severe depression, and anxiety. The state
criminally charged him with child sex crimes only two days
after he left the institution. The Catholic Church hired
attorneys to defend petitioner, and mere days after the
criminal complaint issued, petitioner waived his right to a
preliminary hearing, entered guilty pleas, and received his
sentence. Petitioner contends that his attorneys were
interested in only what was best for the church and
failed to discuss any options with petitioner-i.e., possible
defenses to the charges-other than pleading guilty.
Petitioner contends that his attorneys pressured him to plead
guilty after threatening to stop paying for his legal and
medical expenses if he did not.
appears to have properly exhausted his claims in state court,
but he has a timeliness problem. Under 28 U.S.C. §
2244(d), a petitioner has one year to petition a federal
court for a writ of habeas corpus. The one-year limitations
period begins to run from the latest of: (1) the date on
which judgment in the state case becomes final by the
conclusion of direct review or the expiration of the time for
seeking such review; (2) the date on which any state
impediment to filing the petition is removed; (3) the date on
which the constitutional right asserted is first recognized
by the Supreme Court, if that right is also made
retroactively applicable to cases on collateral review; or
(4) the date on which the factual predicate of the claims
could be discovered through the exercise of due diligence. 28
U.S.C. § 2244(d)(1)(A)-(D). Petitioner’s one-year
limitations period began running on the date his state court
judgment became final. Id. § 2254(d)(1)(A). The
Circuit Court for Marathon County entered judgment on
February 25, 2002. Petitioner was required to file and serve
a notice of intent to pursue postconviction or
postdisposition relief within 20 days. Wis.Stat. §
809.30(2)(b); see also State v. Nickel, 2010 WI.App.
161, ¶ 5, 330 Wis.2d 750, 794 N.W.2d 765
(“Nickel’s deadline for pursuing a direct appeal
expired twenty days after his sentencing when he failed to
file a notice of intent to pursue postconviction
relief[.]”). When petitioner did not appeal, his state
court judgment became final on March 18, 2002. Id.
(“[J]udgment of conviction became final when he did not
challenge the conviction or the sentence within the deadlines
for doing so.”). Accordingly, petitioner’s one
year expired on March 18, 2003, a decade before he filed his
postconviction motion in state court, and thirteen years
before filing his petition here.
expiration of the one-year deadline is not inevitably fatal.
Under Holland v. Florida, a petitioner is entitled
to equitable tolling if he shows that: (1) he has been
pursuing his rights diligently; and (2) some extraordinary
circumstance stood in his way and prevented timely filing.
560 U.S. 631, 649 (2010).
petitioner contends that the court should equitably toll the
time that passed between the date his state judgment became
final and the date he filed his ...