United States District Court, E.D. Wisconsin
MARK H. PRICE, Petitioner,
REED RICHARDSON, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE
Court screened Petitioner Mark H. Price's
(“Price”) petition on October 2, 2017. (Docket
#7). The Court noted that it appeared almost certain that
Price's petition was filed beyond the applicable statute
of limitations. Id. at 2. It therefore ordered
immediate briefing on the issue. Id. at 4. That
briefing is now complete. (Respondent's Opening Brief,
Docket #10; Petitioner's Response, Docket #11;
Respondent's Reply, Docket #12). For the reasons
explained below, the Court's suspicion was
correct-Price's petition is untimely and must be denied.
was convicted of numerous serious felonies in Winnebago
County Circuit Court in January 1991. (Docket #10-1 at 2). He
was sentenced to life imprisonment in February 1991.
Id. Price appealed, the Wisconsin Court of Appeals
affirmed his conviction in March 1994. (Docket #10-2 at 2).
The Wisconsin Supreme Court denied Price's petition for
review on June 14, 1994. (Docket #1 at 3). On February 6,
2014, almost twenty years later, Price filed a motion for
post-conviction relief in Wisconsin state court. (Docket
#10-3 at 18). The motion was denied by the circuit court in
February 2015, and Price appealed. Id. at 22. The
Court of Appeals affirmed that denial on August 10, 2016.
(Docket #10-4). Price sought review in the Wisconsin Supreme
Court, which rejected his request on December 13, 2016.
(Docket #10-5 at 1). Price's federal habeas petition was
filed on September 11, 2017. (Docket #1).
explained in the Court's screening order, state prisoners
seeking federal habeas review have one year from the date
their judgment of conviction became final to file their
petition. 28 U.S.C. § 2244(d)(1). A judgment is
“final” under this rule at “the conclusion
of direct review [in the state appellate courts] or the
expiration of the time for seeking such review.”
Id. § 2244(d)(1)(A); Ray v. Clements,
700 F.3d 993, 1003 (7th Cir. 2012). This includes the
ninety-day period allowed for filing a petition for writ of
certiorari with the U.S. Supreme Court. Ray, 700
F.3d at 1003. For Price, who did not seek certiorari, this
means that his conviction appeared to be final as of
September 12, 1994.
the statute of limitations described in Section 2244(d)(1)
was put in place by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). Newell v. Hanks,
283 F.3d 827, 832 (7th Cir. 2002). AEDPA was enacted on April
24, 1996. Id. The correct deadline for Price's
federal habeas filing, then, was April 24, 1997. Id.
Even with this extended deadline, Price's instant
petition was filed just over twenty years too late.
suggests two reasons why his extreme tardiness should be
excused. The first is the “actual innocence
gateway.” Gladney v. Pollard, 799 F.3d 889,
895 (7th Cir. 2015). As its name suggests, the actual
innocence gateway allows a court to excuse a procedural
failing, such as untimeliness, 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.'” Id. at 896 (quoting
Schlup v. Delo, 513 U.S. 298, 316 (1995)). The
gateway is narrow and is only available to Price if he shows
“that ‘in light of new evidence, it is more
likely than not that no reasonable juror would have found
[him] guilty beyond a reasonable doubt.'”
Id. (quoting House v. Bell, 547 U.S. 518,
failed to meet this evidentiary burden because he has
presented almost no evidence at all. The only evidence before
the Court are Price's sworn statements in his petition,
see (Docket #1 at 6-7), and nine pages of documents
attached to his brief, (Docket #11-1). The statements in the
petition are unsupported by any affidavit testimony or other
evidence. The first document attached to Price's brief is
a 2004 affidavit from Price's former counsel in his
criminal case, and though it covers many various topics,
Price does not explain its relevance to his actual innocence
claim. See (Docket #11-1 at 1-6; Docket #11 at 7-8).
The other document is a letter to Price from the state public
defender in response to his complaints about his lawyer's
inaction. (Docket #11-1 at 7-8). Neither document supports
any of the assertions in the petition. Price's minimal
evidence does nothing to shake the Court's confidence in
the outcome of his trial. In other words, his uncorroborated
statements in the petition supply no basis for the Court to
conclude that it is more like than not that no reasonable
juror would have found him guilty.
second avenue for avoiding the statute of limitations is
equitable tolling. Equitable tolling can excuse an untimely
petition if the petitioner establishes “(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Socha v. Boughton, 763 F.3d
674, 683 (7th Cir. 2014) (quoting Holland v.
Florida, 560 U.S. 631, 649 (2010)). This is “a
highly fact-dependent area in which courts are expected to
employ flexible standards on a case-by-case basis.”
Id. at 684 (quotations omitted). “[T]he
threshold necessary to trigger equitable tolling is very
high, ” and it is “an extraordinary remedy
[which] is rarely granted.” United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000);
Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir.
where it applies, equitable tolling can only offer a
“brief extension of time during which a late filing
will be accepted.” Gray v. Zatecky, 865 F.3d
909, 912 (7th Cir. 2017). The Seventh Circuit has held that a
petition which was just two months late could not be saved by
equitable tolling. Gladney v. Pollard, 799 F.3d 889,
894-95 (7th Cir. 2015). The Court finds that Price's
two-decade delay, by itself, almost completely closes the
door on his request for equitable tolling. Any sliver of
viability is destroyed by Price's lack of diligence. Even
taking his statements in his brief as true (they are not
sworn), there are substantial gaps between his various
attempts to attack his criminal conviction. Indeed, Price has
no explanation at all for the period from late 2009 until
early 2014, a period which on its own would have exhausted
the limitations period many times over. The majority of
Price's argument is that his incarceration impeded his
ability to litigate, and that his lawyer was dilatory, but
these are not extraordinary circumstances. Lombardo v.
United States, 860 F.3d 547, 552 (7th Cir. 2017);
Socha, 763 F.3d at 685-86.
Price's petition is untimely and he has not carried his
burden to forgive that fact via equitable relief. His
petition must, therefore, be denied. Under Rule 11(a) of the
Rules Governing Section 2255 Cases, “the district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To
obtain a certificate of appealability under 28 U.S.C. §
2253(c)(2), Price must make a “substantial showing of
the denial of a constitutional right” by establishing
that “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.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal citations omitted). Further, when the
Court has denied relief on procedural grounds, the petitioner
must show that jurists of reason would find it debatable both
that the “petition states a valid claim of the denial
of a constitutional right” and that “the district
court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). As the Court
discussed above, reasonable jurists would not debate whether
the petition should have been resolved in a different manner.
As a consequence, the Court is further compelled to deny a
certificate of appealability as to Price's petition.
the Court closes with some information about the actions that
Price may take if he wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30
days of the entry of judgment. See Fed. R. App. P.
3, 4. This Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. Id.
A party is expected to closely review all applicable rules
and determine what, if any, further action is appropriate in
IT IS ORDERED that Petitioner Mark H.
Price's petition for a writ of habeas corpus (Docket #1)
be and the same is hereby DENIED;
IS FURTHER ORDERED that a certificate of
appealability as to Petitioner Mark H. Price's petition
(Docket #1) be and the same is hereby
IS FURTHER ORDERED that this action be and the same