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Homelsey v. Dittman

United States District Court, W.D. Wisconsin

February 24, 2017

MICHAEL DITTMAN, Warden, Columbia Correctional Institution, Respondent.


          BARBARA B. CRABB District Judge.

         Petitioner Charles J. Homelsey is an inmate at the Columbia Correctional Institution. With the assistance of court-appointed counsel, he is proceeding on claims under 28 U.S.C. § 2254 that his trial counsel and appellate counsel were constitutionally ineffective for failing to raise a question as to petitioner's competence to stand trial.

         Respondent has moved to dismiss the petition as untimely. Petitioner does not deny that the statute of limitations has expired on his claim, but contends that he is entitled to equitable tolling of the limitations period because he has severe mental limitations, including a low IQ and an inability to read and write, that prevented him from preparing his own petition and required him to rely on the assistance of other inmates willing to help him.

         Having carefully considered the arguments and evidence advanced by both sides, I conclude that this is not one of those rare cases in which it would be appropriate to toll the limitations period. Although petitioner's cognitive deficits and inability to read and write made it more difficult for him to file his petition on time, he has not demonstrated that his mental deficits are so severe that he was unable to understand or take action to protect his legal interests. Moreover, he has not shown that he acted with the requisite reasonable diligence in pursuing those interests. Accordingly, I will grant respondent's motion and dismiss the petition.


         On March 16, 2009, following a jury trial, petitioner was convicted in the Circuit Court for Dane County of three counts of second degree sexual assault and one count of false imprisonment for which he received a 20-year prison sentence. He filed a direct appeal of his conviction, asserting that he was entitled to a new trial because of newly-discovered evidence. On July 21, 2011, the Wisconsin Court of Appeals affirmed his conviction; on December 5, 2011, the Wisconsin Supreme Court denied his petition for review. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.

         Under 28 U.S.C. § 2244(d)(1)(A), a petitioner seeking to file a federal habeas petition challenging a state court conviction must do so within one year of “the date on which judgment in the state case became final by the conclusion of direct review or the expiration of the time for seeking such review.” (Other statutory subsections prescribe alternative dates for the start of the limitations period, 28 U.S.C. § 2244(d)(1)(B)-(D), but petitioner does not suggest than any of these sections apply to him.) The “time for seeking such review” includes the 90-day period in which petitioner could have filed an application for a writ of certiorari with the United States Supreme Court. Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002). Thus, his conviction became final on March 5, 2012. (The 90th day after the Wisconsin Supreme Court's decision was March 4, which was a Sunday. This meant that his petition for certiorari would have been due on Monday, March 5.) His federal habeas clock began running the next day, March 6, 2012.

         Petitioner's habeas clock continued to run until August 2, 2012, when petitioner filed a motion for a new trial. By that time, 149 days had elapsed since the start of the limitations period. Under 28 U.S.C. § 2244(d)(2), time is tolled, that is, it does not count against the one-year statutory period, while a properly filed application for post conviction relief is pending in state court. Petitioner's state court motion was pending for only 13 days; it was denied on August 15, 2012. Petitioner did not appeal the denial of that motion.

         Petitioner's habeas clock resumed on August 16, 2012, the day after his state court motion was no longer “pending.” Approximately three months later, on November 19, 2012, petitioner filed a petition for a writ of habeas corpus in this court, asserting, among other claims, that his trial and appellate lawyers had provided constitutionally ineffective assistance by failing to argue that petitioner was incompetent to stand trial. Homelsey v. Meisner, 12-cv-835-bbc, dkt. # 1. In that petition, petitioner asserted that he had filed a “letter/motion” for post conviction relief in the state circuit court on or about November 8, 2012 but had not yet received a ruling on that motion. On January 8, 2013, this court entered an order dismissing the petition without prejudice for his failure to exhaust his state court remedies. Id., dkt. #3. At no time did petitioner ask this court to stay his federal habeas petition while he pursued his state court remedies.

         The time that petitioner's habeas petition was pending in this court is not excluded from petitioner's habeas clock because § 2244(d)(2) applies only to state court applications for post conviction relief. Duncan v. Walker, 533 U.S. 167, 172-82 (2001). Further, although petitioner asserted in his federal habeas petition that he had filed a state court post conviction “letter/motion” on or about November 8, 2012, the state court docket sheet does not show that the circuit court received the filing, much less that it docketed the filing as a motion. Dkt. #10 at Exh. 6. Thus, petitioner did not actually have any “properly filed application[s] for post conviction relief” pending in state court, as he suggested in his habeas petition. Duncan, 533 U.S. at 181-82; Johnson v. McCaughtry, 265 F.3d 559, 562-63 (7th Cir. 2001). As a result, nothing stopped petitioner's federal clock after it had resumed running on August 16, 2012. The one-year limitations period expired on March 20, 2013.

         On June 26, 2013, petitioner filed a post conviction motion in the Circuit Court for Dane County pursuant to Wis.Stat. § 974.06. The state circuit court held a hearing on September 9, 2013 and denied petitioner's motion. Petitioner appealed, but the Wisconsin Court of Appeals affirmed the trial court's decision on February 12, 2015. The Wisconsin Supreme Court denied review on November 4, 2015.

         On January 20, 2016, petitioner filed this habeas petition. Among other things, he alleged that his trial lawyer had been constitutionally ineffective for failing to investigate petitioner's “long history of mental incompetency to stand trial” and that his appellate lawyer had been ineffective for failing to raise the issue of trial counsel's ineffectiveness. Dkt. #1, at 8-9. Among the documents attached to his petition was a partial transcript of a competency hearing held on September 2, 1999, in which the Circuit Court for Dane County determined relied in large part on a report filed by Dr. Kent Berney to find that petitioner was not competent to be tried in a felony case pending at that time. Id., Attachment 8. According to documents submitted by respondent, however, petitioner was later found competent to stand trial in the 1999 case and in several subsequent state court cases. Dkt. #24, at 13 & Exh. A.


         Petitioner asks this court to excuse his untimely filing under the doctrine of equitable tolling. To qualify for equitable tolling, a habeas petitioner must show two things: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). As the Supreme Court has explained, “[t]he diligence prong . . . covers those affairs within the litigant's control; the extraordinary-circumstances prong, by ...

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