United States District Court, W.D. Wisconsin
CLYDE R. MCCOLLUM, JR., Petitioner,
JUDY SMITH, Warden, Oshkosh Correctional Institution, Respondent.
OPINION & ORDER
D. PETERSON District Judge
Clyde R. McCollum, Jr., is currently incarcerated at the
Oshkosh Correctional Institution. He is challenging his 2011
state court conviction under 28 U.S.C. § 2254, and I
have screened his habeas corpus petition. Dkt. 32. Respondent
Judy Smith moves to dismiss, arguing that the petition is
barred by the governing one-year statute of limitations. Dkt.
37. For reasons stated below, I will grant this motion.
court draws the following facts from McCollum's amended
petition, Dkt. 27, and court filings.
was charged in Marathon County Case No. 2010-CF-718 with
possession of child pornography. McCollum pleaded no contest
in May 2011 and was sentenced to serve 20 years of
confinement followed by 20 years of extended supervision. On
direct appeal, McCollum's appointed counsel filed a
no-merit report, which the Wisconsin Court of Appeals
adopted, issuing an opinion and order affirming the
conviction on August 7, 2012. McCollum's appointed
counsel then filed a no-merit petition for review with the
Wisconsin Supreme Court, which was denied on December 10,
2012. McCollum filed his habeas petition in this court on
November 19, 2014, claiming that his plea was not knowingly
and voluntarily made and that his counsel was ineffective.
moves to dismiss McCollum's habeas petition, contending
that McCollum filed the petition too late, so that it is
barred by the statute of limitations on federal habeas
review. Under § 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).
the one-year limitations period began to run from the date on
which judgment in McCollum's state case became final.
After McCollum's petition for review was denied by the
Wisconsin Supreme Court, he had 90 days to seek review in the
United States Supreme Court. This means that his one-year
limitations period began running on March 10, 2013, when his
time for seeking review in the United States Supreme Court
expired. So McCollum's one year expired on March 10,
2014, more than eight months before he filed his habeas
expiration of the one-year deadline is not inevitably fatal.
Under Holland v. Florida, a petitioner is entitled
to equitable tolling of the one-year limitations period 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). McCollum
bears the burden to demonstrate his entitlement to equitable
tolling, which is “an exceptional remedy.”
Taylor v. Michael, 724 F.3d 806, 810 (7th Cir.
McCollum 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 habeas petition because he
did not know that he could file a habeas petition. Courts
have previously rejected similar arguments. See Tucker v.
Kingston, 538 F.3d 732, 735 (7th Cir. 2008)
(“[T]he lack of legal expertise is not a basis for
invoking equitable tolling.”); United States v.
Griffin, 58 F.Supp.2d 863, 869 (N.D. Ill. 1999)
(“[A] run-of-the-mill claim of ignorance of the law is
insufficient to warrant equitable tolling of §
2255's limitations period.”). McCollum does not
demonstrate that extraordinary circumstances prevented him
from timely filing a § 2254 petition.
also contends that he is actually innocent. “[A]
credible showing of actual innocence may allow a prisoner to
pursue his constitutional claims . . . on the merits
notwithstanding the existence of a procedural bar to
relief.” McQuiggin v. Perkins, 133 S.Ct. 1924,
1931 (2013). To show actual innocence, McCollum must present
“new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence-that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 324
(1995). McCollum states that he is innocent because the child
pornography belonged to his roommates, not him, but he
presents no evidence of his innocence. This is insufficient
to demonstrate a credible claim of actual innocence. McCollum
does not demonstrate that equitable tolling is available, so
I will grant respondent's motion to dismiss and close
under Rule 11 of the Rules Governing Section 2254 Cases, I
must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. A certificate
of appealability will not issue unless petitioner makes
“a substantial showing of the denial of a
constitutional right, ” 28 U.S.C. § 2253(c)(2),
which requires him to “demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Tennard
v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)). Where denial of
relief is based on procedural grounds, the petitioner must
also show that “jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
the rule allows me to ask the parties to submit arguments on
whether a certificate should issue, it is not necessary to do
so in this case because the briefing was adequate to resolve
the procedural issue in this case. Because reasonable jurists
would not otherwise debate whether a ...