United States District Court, E.D. Wisconsin
THOMAS F. KAFER, Petitioner,
JUDY P. SMITH, Respondent.
Stadtmueller U.S. District Judge
petition in this matter was filed on March 23, 2016 and
assigned to District Judge Charles N. Clevert, Jr. (Docket
#1). Judge Clevert screened the case and ordered Respondent
to address the petition no later than January 20, 2017.
(Docket #6). On February 7, 2017, with no response having
been filed, Judge Clevert ordered Respondent to show cause
why her failure to respond should not be sanctioned. (Docket
#7). Respondent submitted her response to the show cause
order, and a motion to dismiss the Petition, on February 28,
2017. (Docket #10 and #11). Judge Clevert accepted
Respondent's excuse for missing the response deadline,
namely clerical error, discharged the show cause order, and
accepted the motion to dismiss. See Docket Text
Order of March 17, 2017. Petitioner opposed the motion on
March 27, 2017, and Respondent replied on April 5, 2017. This
matter was reassigned to this branch of the Court on March
29, 2017. Respondent's motion is fully briefed and, for
the reasons stated below, it will be granted.
offers a single basis for dismissing the petition-timeliness.
A state prisoner in custody pursuant to a state court
judgment has one year from the date “the judgment
became final” to seek federal habeas relief. 28 U.S.C.
§ 2244(d)(1)(A). A judgment becomes final when all
direct appeals in the state courts are concluded, followed by
either the completion or denial of certiorari proceedings in
the U.S. Supreme Court, or, if certiorari is not sought, at
the expiration of the 90 days allowed for filing for
certiorari. See Ray v. Clements, 700 F.3d 993, 1003
(2012) (citing Anderson v. Litscher, 281 F.3d 672,
675 (7th Cir. 2002)). Petitioner exhausted his appeals in
Wisconsin state courts on June 12, 2013. (Docket #13 at 3).
Because there is no indication that he sought U.S. Supreme
Court certiorari, Petitioner's conviction became final on
September 10, 2013. He was required, then, to file his habeas
corpus petition no later than September 10, 2014. The instant
petition was filed more than a year-and-a-half late.
offers three arguments to circumvent his tardiness. First, he
contends that the statute of limitations should be equitably
tolled to render his petition timely. The Seventh Circuit has
[t]here are two principal tolling doctrines. One is equitable
estoppel, which comes into play if the defendant takes active
steps to prevent the plaintiff from suing in time, as by
promising not to plead the statute of limitations as a
defense. . . . . The other doctrine is equitable tolling. It
permits a plaintiff to avoid the bar of the statute of
limitations if despite all due diligence he is
unable to obtain vital information bearing on the existence
of his claim.
Clarke v. United States, 703 F.3d 1098, 1101 (7th
Cir. 2013) (citations and quotations omitted) (emphasis in
original). Petitioner may exclude time from the statute of
limitations calculus, and thereby achieve timely filing, if
he shows that during the subject time, he “(1)
pursue[d] his rights diligently, and (2) ‘some
extraordinary circumstance stood in his way and prevented
timely filing.'” Gladney v. Pollard, 799
F.3d 889, 894-95 (7th Cir. 2015) (quoting Holland v.
Florida, 560 U.S. 631, 649 (2010)). Petitioner bears the
burden of proof on both points. Socha v. Boughton,
763 F.3d 674, 683 (7th Cir. 2014). The Seventh Circuit notes
that “tolling is rare; it is ‘reserved for
extraordinary circumstances far beyond the litigant's
control that prevented timely filing.'”
Id. at 684.
argument on both points is founded on the same circumstance.
In August 2013, two months after his state court appeals
concluded, Petitioner was targeted for another criminal
investigation by the state. (Docket #3-1 at 2). Petitioner
retained his current counsel in October 2013. Id.
His counsel avers:
Petitioner and I anticipated that new charges would be
forthcoming. We were extremely concerned that the filing of
the new charges would interfere with a fair consideration of
the petition for habeas corpus and conversely, that a pending
habeas petition would impair petitioner's ability to
negotiate a settlement of the new matter.
Id. Petitioner's counsel nevertheless had the
petition prepared five months later, in February 2014.
Id. The charges Petitioner feared were not actually
filed until December 11, 2014. Id. His counsel
states that “the majority of 2015 was devoted to
negotiating and resolving the second charge.”
explanation demonstrates that equitable tolling does not lie
here. Even assuming Petitioner diligently pursued his rights,
he cannot show that “some extraordinary circumstance
stood in his way and prevented timely filing.”
Gladney, 799 F.3d at 895 (emphasis
added). Petitioner stresses that he “did not
merely decide not to file the petition. Rather, [he] was
hamstrung by the State's decision to file another charge
against him[.]” (Docket #13 at 3). Similarly,
Petitioner contends that he “could not reasonably go
forward with the habeas petition because he could not do so
without forfeiting the likely plea agreement on the new
is incorrect. By at least February 2014, seven months before
the statute of limitations would run, Petitioner was equipped
to file his petition. He did not file it because he made a
strategic choice, namely that a habeas filing might
negatively impact his plea negotiations on the new charge.
Petitioner's strategy appears to have been of some
benefit to him, as he ultimately resolved the new charge. He
cannot obtain the benefit of his choice in one instance, and
then complain that the choice harmed him in another. Further,
petitioner has not cited any case with something close to
analogous facts or even arriving at the result he desires.
Pace v. DiGuglielmo, 544 U.S. 408, 424 (2005)
(dissent mentions government interference which may underlay
a substantive habeas claim, not any statute of limitations
concern); Johnson v. McBride, 381 F.3d 587, 589-90
(7th Cir. 2004) (a petitioner cannot raise equitable tolling
when his lawyer missed the filing deadline); Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (no evidence
that the respondent “lulled Kreutzer into inaction,
” when the state in fact highlighted the running
statute of limitations in prior filings). Without such
precedent, the Court views this matter as Respondent does:
The new charge is not extraordinary, but even if it were, it
did not prevent Kafer from filing. Instead, the new charge,
at worst, influenced Kafer's decision to wait to file his
petition. Nothing “stood in his way” of
submitting his petition to this Court.
(Docket #15). The Court declines to exercise its equitable
powers to toll the statute of limitations in this instance.
second argument is the equitable estoppel doctrine. As quoted
above, the doctrine “comes into play if the defendant
takes active steps to prevent the plaintiff from suing in
time, as by promising not to plead the statute of limitations
as a defense.” Clarke, 703 F.3d at 1101.
(quotation omitted). As before, even assuming Respondent took
some action that Petitioner could have reasonably relied on,
he fails to explain how he was prevented from filing
his petition by any such action. While the state certainly
took their time to charge him, it was his conscious choice to
delay filing his petition in what he believed was in his best
interest. Again, ...