United States District Court, W.D. Wisconsin
DWIGHT A. WILLIAMS, Petitioner,
JOHN E. LITSCHER, Respondent.
OPINION AND ORDER
BARBARA B. CRABB, District Judge
Dwight A. Williams has filed a pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254. He
challenges a judgment of conviction entered on December 10,
1996, by the Circuit Court for Dane County, Wisconsin, on
multiple counts of forgery, resisting or obstructing an
officer and bail jumping, in Case No. 1996CF42. Petitioner
raises the following grounds for relief: (1) the court erred
by imposing a term of probation to run consecutively to his
prison sentence; (2) petitioner was forced to proceed to
trial without the assistance of counsel; (3) petitioner
received ineffective assistance of counsel; and (4) witness
tampering. The petition is before this court for screening
pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
dismissing the petition because it is clearly untimely.
Petitions brought under § 2254 have a one-year statute
of limitations that begins to run from the date on which the
judgment of conviction is final. That deadline may be
extended if the state prevented the petitioner from filing
earlier, if the Supreme Court has recognized a new
constitutional right, or if the petitioner has discovered new
facts supporting his claim, but petitioner does not allege
that any of those things apply to his case. 28 U.S.C. §
to the petition, attachments and electronic court records,
petitioner was sentenced in Dane County case no. 1996CF42 on
March 31, 1997. He filed a notice of appeal on July 8, 1997,
but the appeal was dismissed in April 1998. He did not seek
review of the dismissal in the Wisconsin Supreme Court.
Petitioner was incarcerated out of state from 1999 and 2005
and did not seek to challenge his conviction or sentence
during that period. In May 2010, petitioner filed a motion
for postconviction relief relating to his probation. He also
filed additional motions with the circuit court and court of
appeals in 2014 and 2016. The court of appeals denied
petitioner's most recent motions for lack of
jurisdiction. State of Wisconsin ex rel. Williams v.
Circuit Court for Dane County, 2016AP1582-W (Oct. 12,
2016). Petitioner did not file his habeas petition in this
court until September 1, 2017, long after his one-year time
period for filing a federal habeas petition had expired.
Therefore, it is plainly untimely under § 2244(d)(1)(A).
may contend that his one-year clock was tolled because he
filed several motions with the circuit court and court of
appeals. Under § 2244(d)(2), the time during which a
“properly filed application for state post-conviction
or other collateral review” is pending is not counted
toward any period of limitation. However, the petition and
the electronic records show that more than one year had
elapsed from the time petitioner's conviction was final
and any properly filed application for state post-conviction
or other collateral review.” In other words, by the
time petitioner filed a proper collateral attack in 2010, his
federal habeas clock had long since run.
appears to argue that his petition is timely under the
doctrine of equitable tolling. An untimely petition may be
salvaged if grounds exist to equitably toll the limitation
period. Equitable tolling, however, is an extraordinary
remedy that is rarely granted. Tucker v. Kingston,
538 F.3d 732, 734 (7th Cir. 2008). The Supreme Court has
explained that “a petitioner is entitled to equitable
tolling only if he shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649
(2010) (internal quotation marks omitted).
instance, petitioner states that he failed to file his
federal habeas petition within the one-year deadline because
he was incarcerated out of state and did not have counsel.
This is not enough to invoke equitable tolling. Petitioner
does not explain why being held out of state prevented him
from filing any habeas petition or other motion for
postconviction relief on his own. Additionally, the fact that
petitioner was out of state between 1999 and 2005 does not
explain why he waited until 2010 to file a postconviction
motion and until 2017 to file his federal habeas petition.
Although I understand that it can be difficult to understand
filing requirements and deadlines, the “[l]ack of
familiarity with the law . . . is not a circumstance that
justifies equitable tolling.” Taylor v.
Michael, 724 F.3d 806, 811 (7th Cir. 2013). Accordingly,
petitioner has shown no basis for tolling the one-year habeas
deadline. Because he did not file his habeas petition within
one year after his conviction became final, it is time-barred
under § 2244(d)(1)(A).
only matter remaining for discussion is whether to issue a
certificate of appealability pursuant to Rule 11(a) of the
Rules Governing Section 2254 Cases. A court may issue a
certificate of appealability only if the applicant makes a
substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). The standard for making a
“substantial showing” is whether
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted). If a district court dismissed a
habeas petition based on procedural grounds without reaching
the underlying constitutional claims, then a certificate of
appealability “should issue when the prisoner shows, at
least, 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.” Id. Each showing is a
threshold inquiry; thus, the court need address only one
component if that particular showing will resolve the issue.
Id. at 485.
petition should not proceed further. No reasonable jurist
would disagree that the petition is untimely and that
petitioner has failed to show that equitable tolling should
apply. Therefore, petitioner is not entitled to a certificate
ORDERED that the federal habeas corpus petition filed by
Dwight A. Williams is DENIED and this case is DISMISSED with
prejudice. A certificate of appealability is DENIED. If
petitioner wishes he may seek a ...