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Gray v. Zatecky

United States Court of Appeals, Seventh Circuit

August 2, 2017

Kunta Gray, Petitioner-Appellant,
v.
Dushan Zatecky, Superintendent, Pendleton Correctional Facility, Respondent-Appellee.

          Argued January 10, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:13-cv-812-SEB-DML - Sarah Evans Barker, Judge.

          Before Wood, Chief Judge, and Rovner and Hamilton, Circuit Judges.

          WOOD, CHIEF JUDGE.

         During a drug deal that went bad, shots were fired and Gregory Jones was fatally wounded. The police arrested Kunta Gray for the crime, and a Marion County (Indiana) jury later convicted him, twice, for the murder and associated offenses. The Indiana courts ultimately upheld the convictions, and so Gray filed this action in federal court, seeking a writ of habeas corpus on several grounds. See 28 U.S.C. § 2254. Before we can reach those arguments, however, we must assure ourselves that his petition was timely. It is only if Gray qualifies for equitable tolling, because he filed after the one-year time limit for such petitions. 28 U.S.C. § 2244(d). We agree with the district court that he failed to make the necessary showing, and so we affirm its judgment.

         I

         On the morning of November 16, 2000, Gray stopped by Jones's house in Indianapolis and made a deal to buy eight pounds of marijuana for $6, 500 -Gray was to bring the money by later that day, and the men would make the exchange. Gray duly returned that afternoon, accompanied by another man. Jones's friend Tracy Avant was in the living room at the time and observed Jones, Gray, and the other man retire to the rear of the house. Shortly thereafter, the third man returned, hit Avant with a revolver, threw him to the ground, and robbed him. Avant heard Jones say "don't do this" in the back of the house, and then he heard five to ten gunshots. Gray ran back through the living room carrying a gun and a trash bag, firing into the rear of the house as he fled. Emergency responders took Jones to the hospital, but he died there 12 days later from multiple gunshot wounds to his abdomen.

         A Marion County jury found Gray guilty in March 2002 of murder, robbery, and a number of related crimes, but he convinced the state courts to overturn those convictions on postconviction review. The state held a second trial in August 2007. It ended on the same note: the jury convicted him of felony murder, murder, robbery, attempted murder, and carrying a handgun without a license, and the court sentenced him to 85 years' imprisonment.

         The retrial was a rocky affair. The prosecution used four of its eight peremptory challenges on black jurors. After trial, it emerged that a selected juror had been less than forthcoming on her juror questionnaire. These problems take on added significance since the prosecution's case was not especially strong. It hinged on testimony from Avant and Andrew White, both of whom maintained that Gray confessed while they shared a holding cell. Neither was a dream witness. Avant initially asserted that he was not present for the robbery. He struggled to identify the assailants, and he may have been high at the time of the crime. White's testimony was also problematic, partly because White was trying to get a lighter sentence. Worse, Jones had been White's friend, and Gray had robbed White in the past. Normally, Gray's earlier crime would have been inadmissible, but defense counsel introduced it to undermine White's credibility on the theory that White invented Gray's confession out of revenge. Unfortunately, the earlier robbery closely resembled the one against Jones, and so the jury learned that Gray had previously committed a crime nearly the same as the one of which he stood accused. Even so, the jury initially deadlocked. After receiving further instructions from the court, however, the jury notified the court that the hold-out juror had suddenly changed his or her vote. The foreperson commented to the court that "I have trouble submitting the change in good conscience, " but the jury overcame those doubts and convicted Gray on all charges.

         Gray's appeals proved unsuccessful, and his conviction became final on January 2, 2008. That started the one-year period for postconviction actions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244(d)(1). Gray took no action until July 29, 2008 (208 days later), when he filed a petition for postconviction relief in state court. This stopped the AEDPA clock until Indiana's denial of postconviction relief became final on August 8, 2012. See 28 U.S.C. § 2244(d)(2). On that date, Gray had 156 days left- until January 11, 2013-to file his federal habeas corpus petition. He did not submit it until April 29, 2013, 108 days after the calendar hit zero.

         That left equitable tolling as his only hope, but the district court found him ineligible for that extraordinary measure and dismissed his petition without reaching the merits. We granted a certificate of appealability, requesting briefing on four issues: equitable tolling, ineffective assistance of counsel, whether striking the black jurors violated Batson v. Kentucky, 476 U.S. 79 (1986), and the possibility that Gray's due process rights were violated by the inaccurate questionnaire answers.

         II

         Because the rest of Gray's appeal depends on our conclusion with respect to equitable tolling, we begin (and end) there. AEDPA imposes a strict one-year time limit for requesting a writ of habeas corpus. That period runs from the latest of four dates, which can interact with one another, depending on the appeals and state collateral relief the applicant seeks. Here, we begin with the date on which Gray's judgment became final. See 28 U.S.C. § 2244(d)(1). That started the clock, but 208 days later he sought collateral relief from Indiana's court. Under the statute, the time spent while the collateral proceedings were pending did not count toward the one-year limitations period. 28 U.S.C. § 2244(d)(2). In other words, the clock was stopped (or the statute was "tolled, " as courts like to say) during the time when those proceedings were pending. The countdown to one year resumed on August 8, 2012, when his state post-conviction proceedings came to an end and he still had 156 days-until January 11, 2013 -during which he could have filed a timely federal petition. But he did not file anything until 108 days past that deadline. The Supreme Court has held that there is a narrow safety valve for people in Gray's position, in the form of equitable tolling- essentially, a brief extension of time during which a late filing will be accepted. Holland v. Florida, 560 U.S. 631 (2010). Unless Gray qualifies for that, he cannot pursue his federal petition for a writ of habeas corpus.

         Equitable tolling is available when an applicant shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 649 (internal quotation marks omitted). The statute requires "reasonable diligence, " not "maximum feasible diligence." Id. at 653 (citations omitted). The district court must evaluate the circumstances holistically, considering "the entire hand that the petitioner was dealt" rather than taking each fact in isolation. Socha v. Boughton,763 F.3d 674, 686 (7th Cir. 2014). Equitable tolling is "rare" but it does not "exist[] in name only." Id. at 684. It is instead a "highly fact-dependent area in which courts are expected to employ flexible standards on a case-by-case basis." Id. (internal quotation ...


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