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. The court determined that the petition is
untimely, but the court afforded petitioner one final
opportunity to demonstrate that he is entitled to equitable
tolling. Dkt. 5.
has responded to the court's order. Dkt. 6. But
petitioner has not demonstrated that he is entitled to the
exceptional remedy of equitable tolling, and the court will
dismiss his petition.
does not challenge the court's earlier determination that
petitioner's state court judgment became final on March
18, 2002, and that, as a result, AEDPA's one-year
limitations period expired on March 18, 2003. Dkt. 5, at 3-4.
Petitioner concedes that his petition is untimely. The
question is whether petitioner can save his untimely petition
by showing that he is entitled to equitable tolling.
Id. at 4.
contends that he is entitled to a presumption in favor of
equitable tolling, citing Holland v. Florida, 560
U.S. 631, 645-46 (2010). But this is incorrect. The first
issue in Holland was whether the one-year statute of
limitations imposed in AEDPA was subject to equitable tolling
at all. On this issue, the Supreme Court observed that
non-jurisdictional federal statutes of limitations carry a
presumption in favor of equitable tolling. Id. The
Supreme Court held that the AEDPA statute of limitations is
indeed subject to equitable tolling. But it did not hold that
a habeas petitioner is entitled to a presumption in favor of
equitable tolling in the individual case.
contrary, the burden is on petitioner to demonstrate his
entitlement to equitable tolling, which is “an
exceptional remedy.” Taylor v. Michael, 724
F.3d 806, 810 (7th Cir. 2013). A petitioner is entitled to
equitable tolling only 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.
Holland, 560 U.S. at 649. “The realm of
equitable tolling is a highly fact-dependent area in which
courts are expected to employ flexible standards on a
case-by-case basis.” Socha v. Boughton, 763
F.3d 674, 684 (7th Cir. 2014) (citations and internal
quotation marks omitted).
focuses on the second element and contends that several
factors, considered together, amount to an extraordinary
circumstance that prevented him from timely filing a §
2254 petition. Petitioner contends first that he was
incompetent when he entered his guilty plea. Petitioner
argues that he had been receiving treatment at a mental
health institution mere days before he entered his plea, and
this fact, alone, “should be sufficient evidence that
there was reason to doubt his competency at the time he
entered his plea.” Dkt. 6, at 5-6. The court is not
persuaded: many defendants suffer from mental illnesses, but
that fact alone does not show that they are incompetent to
enter a valid plea. And even if the court were to give
petitioner the benefit of the doubt and assume that his
mental status tainted his original plea, he would still have
to show that extraordinary circumstances impeded his ability
to file a habeas petition for the next dozen years.
argument on that point is that ongoing mental health issues,
combined with his limited financial means and inept counsel,
prevented him from pursuing habeas relief.
court recognized in its previous order, incompetence can, in
some situations, warrant equitable tolling. See Davis v.
Humphreys, 747 F.3d 497, 499 (7th Cir. 2014). But
“mental illness tolls a statute of limitations only if
the illness in fact prevents the sufferer from
managing his affairs and thus from understanding his legal
rights and acting upon them.” Obriecht v.
Foster, 727 F.3d 744, 750-51 (7th Cir. 2013) (quoting
Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)).
Petitioner contends that he has continuously received mental
health treatment since being released from jail. Petitioner
concedes that his mental health is “much improved over
the years, ” but he is not “over these
problems.” Dkt. 6-1, ¶ 4. That said, petitioner
has simply failed to explain how his ongoing mental health
problems have impaired his ability to vindicate his legal
rights. Indeed, over the years he has sought legal advice in
an attempt to do so. It seems plain that petitioner was well
aware of his legal rights and that his mental health
challenges were not holding him back from asserting them.
financial troubles are not an extraordinary circumstance. The
fact that petitioner had trouble affording a lawyer does not
explain why he could not timely file a petition on his own;
“lack of representation is not on its own sufficient to
warrant equitable tolling, nor is a petitioner's lack of
legal training.” Socha, 763 F.3d at 685.
leaves petitioner's contention that he received
ineffective legal counsel. First, petitioner contends that
his trial counsel forced him to forego a direct appeal.
Petitioner does not fully explain how his plea, including a
waiver of his appeal rights, was actually a plea that
competent counsel would not advise, given the seriousness of
the charges he faced, and the lenient sentence he received.
But the court will give him the benefit of the doubt about
his trial counsel, and focus on the 13 years following his
contends that he got bad legal advice on two occasions.
Petitioner contends that in 2004, attorney Rand Krueger
wrongly told petitioner that there was nothing he would be
able to do about his conviction. Krueger recommended instead
that petitioner seek a sentence modification and that
petitioner wait to request a modification because “the
courts would be more inclined to modify the sentence with the
passage of time.” Dkt. 6, at 4. Petitioner began
working with another attorney, Adam Walsh, in 2009. For
reasons that petitioner does not fully explain, Walsh filed
for state post-conviction relief four years later, in 2013.
Petitioner suggests that he had to accumulate a financial
balance to fund the filing, but he also says that petitioner
himself was gathering the necessary documents. Dkt. 6-1,