January 10, 2017
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.
Wood, Chief Judge, and Rovner and Hamilton, Circuit Judges.
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.
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.
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
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.
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.
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.
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.
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 ...