United States District Court, E.D. Wisconsin
ALIL A. AZIZI, Petitioner,
JUDY SMITH, Respondent.
ORDER GRANTING MOTION TO DISMISS, DISMISSING CASE,
AND DENYING CERTIFICATE OF APPEALABILITY
CLEVERT, JR. U.S. DISTRICT JUDGE.
August 18, 2016, Alil Azizi filed a petition under 28 U.S.C.
§ 2254 asserting that his state-court conviction and
sentence were imposed in violation of the Constitution. Azizi
was convicted in Milwaukee County Circuit Court of one count
of first-degree sexual assault of a child and two counts of
second-degree sexual assault of a child. He was sentenced to
thirty years of imprisonment and is incarcerated at Oshkosh
court ordered Judy Smith to respond to the petition, and she
did so respond with a motion to dismiss based on
untimeliness. Azizi was directed to file any brief in
opposition to the motion by March 14, 2017. However, Azizi
filed no opposition, and appears to concede the motion's
some exceptions not applicable here, a habeas petitioner must
file his federal habeas case within one year of the date on
which his judgment became final by the conclusion of direct
review or the expiration of time for seeking such review. 28
U.S.C. § 2244(d)(1). However, time is tolled while a
properly filed postconviction motion is pending in state
court. § 2244(d)(2).
April 16, 1996, the Supreme Court of Wisconsin denied
Azizi's petition for review of his direct appeal. Azizi
then had ninety days, until July 15, 1996, within which to
file a petition for writ of certiorari in the United States
Supreme Court. See Sup. Ct. R. 13. Azizi did not
file a petition for a writ of certiorari. Hence, the clock
began ticking on or about July 16, 1996. He had through July
15, 1997 (unless he had some tolled time) to file his federal
has established no tolled time within that year. Smith's
records show that in 2006 Azizi filed a postconviction motion
under Wis.Stat. § 974.06; Azizi's unsuccessful
appeal concluded in 2007. Then, as Azizi's petition
indicates, in October 2015 he filed a petition under
State v. Knight, 168 Wis.2d 509 (1992), in the
Wisconsin Court of Appeals. That court denied the
Knight petition, and the Supreme Court of Wisconsin
denied review in February 2016.
filed the petition in this case within one year of the final
decision on the Knight petition. But neither that
proceeding nor the § 974.06 proceeding in 2006 could
revive or restart the already-expired limitations period for
his federal habeas case. Nor could those state-court
proceedings toll time for a limitations period that had
already expired. See De Jesus v. Acevedo, 567 F.3d
941, 942 (7th Cir. 2009) (stating that a “state
court's later refusal to upset a conviction does not open
a new window for federal collateral review”).
“[A] state proceeding that does not begin until the
federal year has expired is irrelevant.” Id.
one-year statute of limitations period for filing a §
2254 petition is subject to equitable tolling, but to qualify
for such equitable tolling a petitioner must have been
diligent and prevented from timely filing by extraordinary
circumstances. Holland v. Florida, 560 U.S. 631,
634, 645, 649 (2010). The petitioner bears the burden of
establishing any basis for equitable tolling. See
Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008).
With due regard for the extraordinary circumstances required
to justify equitable tolling, Azizi has not, and it is
apparent that he cannot, proffer any sufficient reason for
claiming nineteen years of equitable tolling. He let the
one-year time period for a federal habeas case expire with no
action at all, waited ten years to file his § 974.06
motion, and then waited another nine years to file his
Azizi filed this case almost two decades too late. Therefore,
the case must be dismissed.
unsuccessful habeas petitioner has no right to appeal the
denial of his petition. Miller-El v. Cockrell, 537
U.S. 322, 327, 335 (2003). Before a habeas petitioner may
take an appeal to the Seventh Circuit, he must obtain a
certificate of appealability. See 28 U.S.C. §
2253(c); Fed. R. App. P. 22(b); Miller-El, 537 U.S.
at 335-36. A certificate of appealability issues only if the
petitioner makes a “substantial showing of the denial
of a constitutional right, ” 28 U.S.C. §
2253(c)(2), by demonstrating that “jurists of reason
could disagree with the district court's resolution of
his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further, ” Miller-El, 537 U.S. at 327;
accord Slack v. McDaniel, 529 U.S. 473, 484 (2000).
district court has rejected a petitioner's claims on the
merits, “the showing required to satisfy § 2253(c)
is straightforward: the petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack, 529 U.S. at 484. When a
district court dismisses a habeas petition based on
procedural grounds without reaching the underlying
constitutional claims, a certificate of appealability should
only issue when the petitioner shows “that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484.
Azizi's case, reasonable jurists would not find
the ruling in this case to be debatable or worthy of further
encouragement. Azizi missed the statute-of-limitations
deadline by over nineteen years, his postconviction
proceedings clearly occurred after the filing deadline here
had passed so no time was tolled, and Azizi has shown no
diligence or extraordinary circumstances justifying ...