United States District Court, E.D. Wisconsin
MARK H. PRICE, Petitioner,
REED RICHARDSON, Respondent.
Stadtmueller, U.S. District Judge.
September 11, 2017, Petitioner Mark H. Price
(“Price”) filed this petition pursuant to 28
U.S.C. § 2254, asserting that his state court conviction
and sentence were imposed in violation of the Constitution.
(Docket #1). After proceeding to trial in Winnebago County
Circuit Court in February 1991, Price was convicted of first
degree intentional homicide and various related charges.
Id. at 2. On February 20, 1991, he was sentenced to
life imprisonment. Id. Price appealed his conviction
beginning in March 1992, but it was upheld at each level of
the Wisconsin court system. Id. at 3.
of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an
initial screening of habeas corpus petitions and to dismiss a
petition summarily where “it plainly appears from the
face of the petition…that the petitioner is not
entitled to relief.” This rule provides the district
court the power to dismiss both those petitions that do not
state a claim upon which relief may be granted and those
petitions that are factually frivolous. See Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Upon an
initial Rule 4 review of habeas petitions, the court will
analyze whether the petitioner has avoided statute of
limitations bars, exhausted available state remedies, avoided
procedural default, and set forth cognizable constitutional
or federal law claims.
court begins its Rule 4 review by examining the timeliness of
Price’s petition. 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 within the meaning of § 2244(d)(1)(A) 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)).
petition presents an enormous timeliness problem.
Price’s state level appeals ended on June 14, 1994,
with the Wisconsin Supreme Court’s denial of his
petition for review. (Docket #1 at 3). Price did not seek
certiorari from the U.S. Supreme Court. Id. at 4.
Thus, the clock for Price’s statute of limitations
began to tick on September 12, 1994. The instant petition was
not filed until almost precisely thirteen years later. Price
did file a motion for post-conviction relief, but not until
February 6, 2014. Id. Such motions can toll the
expiration of the statute of limitations, but they do not
restart the clock. Graham v. Borgen, 483 F.3d 475,
477 (7th Cir. 2007). In other words, Price’s one-year
window closed long before his post-conviction motion was
filed, so there was nothing for the motion to toll.
Price appears to have missed his deadline for filing his
petition, that does not end the Court’s analysis. There
are two common-law exceptions that still might apply to
render Price’s petition timely: the “actual
innocence” gateway and equitable tolling. The actual
innocence gateway allows excuse of a procedural default when
a petitioner “‘presents evidence of innocence so
strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial
was free of nonharmless error.’” Gladney v.
Pollard, 799 F.3d 889, 896 (7th Cir. 2015) (quoting
Schlup v. Delo, 513 U.S. 298, 316 (1995)). In other
words, to be entitled to the actual innocence gateway, Price
must show that new evidence makes it unlikely that he would
have been found guilty. Id. at 896.
second potential exception is “equitable
tolling.” See United States v. Marcello, 212
F.3d 1005, 1010 (7th Cir. 2000). Equitable tolling is
“reserved for extraordinary circumstances far beyond
the litigant’s control that prevented timely
filing.” Socha v. Boughton, 763 F.3d 674, 684
(7th Cir. 2014) (quotation omitted). To be entitled to
equitable tolling, a petitioner bears the burden of
establishing: “(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 683–84 (citing Holland v.
Florida, 560 U.S. 631, 649 (2010); Tucker v.
Kingston, 538 F.3d 732, 734 (7th Cir. 2008)) (internal
quotation marks omitted). Though it seems impossible that
Price could have an excuse for such a delayed filing, the
Court of Appeals cautions against dismissing a case on
timeliness grounds without eliciting argument from the
parties. See, e.g., Gildon v. Bowen, 384 F.3d 883
(7th Cir. 2004) (“it is difficult to conceive of a
situation where a claim of equitable tolling would be clear
on the face of the petition,” thus, it is generally
accepted that the Court should not dismiss a petition sua
sponte on timeliness grounds, without input from the
parties; also noting that the limitations period of 28 U.S.C.
§ 2244 “is an affirmative defense, [which] the
state has the burden of” proving) (citing Acosta v.
Artuz, 221 F.3d 117, 121–22 (2d Cir. 2000);
United States v. Burke, 504 U.S. 229, 246 (1992)
(Scalia, J. concurring)); see also Ray, 700 F.3d at
because of the nigh-insurmountable procedural hurdle
Price’s petition faces, the Court finds it most prudent
to order briefing on the statute of limitations issue prior
to any argument on the merits of the case. The parties will,
therefore, present their positions on the timeliness of
Price’s petition in accordance with the following
Respondent’s opening brief: November 1,
Petitioner’s response: December 1,
Respondent’s reply: December 15, 2017
dates are not subject to adjustment. Once briefing is
complete, the Court will make a final determination on the
timeliness issue. If Price’s petition survives, the
Court will complete the screening process.
also requests leave to proceed without prepayment of the
$5.00 filing fee owed in this matter. (Docket #3). In light
of his limited resources, as detailed in his prison trust
account statement, (Docket #4), the Court will grant
IT IS ORDERED that, on or before
November 1, 2017, Respondent shall file a
brief concerning the timeliness of Petitioner’s
petition. On or before December 1, 2017,
Petitioner shall file a response to Respondent’s brief.
On or before December 15, 2017, Respondent