United States District Court, E.D. Wisconsin
DELOND M. BLUNT, Petitioner,
JUDY P. SMITH, Respondent.
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
Delond Blunt petitions for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, seeking relief from his conviction
and sentence for second-degree sexual assault on the ground
that his conviction resulted from the violation of his
constitutional rights. This case was reassigned to me on
December 14, 2017. For the reasons discussed herein, the
petition will be denied as time-barred and the case will be
September 28, 2008, Blunt was convicted in the Circuit Court
of Winnebago County of one count of second-degree sexual
assault for performing fallatio on an unconscious person at a
fraternity party. He was also convicted of bail jumping.
Blunt pled no contest to each offense. He was sentenced to
five years of confinement and five years of extended
supervision on the sexual assault conviction, to be served
concurrently with a sentence of one year of confinement and
two years of extended supervision for the bail jumping
conviction. The court entered judgment on November 21, 2008.
Blunt did not appeal or file a notice of intent to appeal.
January 2, 2009 and February 12, 2009, the Department of
Corrections requested clarification regarding the sentencing
credit listed in the judgment of conviction. Blunt v.
State of Wisconsin, No. 2007CF402, available at
https://wcca.wicourts.gov. The circuit court concluded
on February 12, 2009 that Blunt's sentence credit would
remain as determined in the judgment of conviction. On July
27, 2010, Blunt filed a motion for sentencing credit. He did
not challenge the merits of his conviction until May 17,
2011, when he filed a motion for post-conviction relief
seeking to withdraw his plea. The circuit court denied the
motion, and the Wisconsin Court of Appeals affirmed. The
Wisconsin Supreme Court denied his petition for review on
February 19, 2014. Blunt subsequently filed a federal habeas
petition on February 2, 2015.
Antiterrorism and Effective Death Penalty Act (AEDPA)
establishes a one-year statute of limitations for filing a
habeas petition in federal court. Under 28 U.S.C. §
2244(d), the one year period begins to run from the latest
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). In other words, if a petitioner
files his petition outside of the one-year limitations
period, his application is time-barred. Nevertheless, this
one-year period can be tolled in two instances. First, the
limitations period is tolled for the “time during which
a properly filed application for State post-conviction or
other collateral review with respect to the pertinent
judgment or claim is pending . . . .” 28 U.S.C. §
2244(d)(2). A court may also equitably toll the limitations
period if the petitioner shows “(1) that he has been
pursing 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 quotations and citation omitted).
asserts his petition is not time-barred for three reasons.
First, he argues the respondent waived this issue by failing
to raise it in her answer to the petition. The respondent
admits that she did not raise timeliness in her answer.
Nevertheless, the respondent requests that the court consider
the issue because Blunt had the opportunity to address it in
his reply brief. Although a statute of limitations
affirmative defense is ordinarily forfeited if it is not
raised in an answer or amendment thereto, district courts are
permitted “to consider, sua sponte, the
timeliness of a state prisoner's habeas petition.”
Day v. McDonough, 547 U.S. 198, 209 (2006). Only a
respondent's strategic decision to not address timeliness
in an answer to a petition or to relinquish the defense bars
a district court from reviewing the issue. Wood v.
Milyard, 556 U.S. 463, 472 (2012). In this case, the
court finds that the respondent did not strategically
withhold the timeliness defense or choose to relinquish it.
The respondent requested that the court consider the issue in
her brief in opposition to the petition. Blunt is not
prejudiced by this request because he had an adequate
opportunity to address the issue in his reply brief. Because
the court can consider the issue sua sponte, the
respondent's omission of the affirmative defense in her
answer does not prevent the court from considering the
timeliness of Blunt's petition.
Blunt asserts that his petition is not barred because the
limitation period was tolled during the time the state court
corrected his sentence credit. Wisconsin court records
indicate that the circuit court entered a judgment of
conviction on November 21, 2008. Once judgment was entered,
Blunt had twenty days to file a notice of intent to appeal or
pursue post-conviction relief. See Wis. Stat. §
809.30(2)(b). He did not file the notice. As a result, his
conviction became final on December 11, 2008, and the statute
of limitations to file an application for post-conviction
relief or a federal habeas petition began running. Although
the time period tolled between January 2, 2009 and February
16, 2009, when Blunt and the Department of Corrections sought
clarification on his sentence credit, the limitations clock
resumed ticking on February 12, 2009, when the circuit court
concluded his sentence credit would remain as determined in
the judgment of conviction. The clock ran until July 27,
2010, when Blunt filed a motion for sentencing credit
pursuant to Wis.Stat. § 973.155-a total of 530 days
after the circuit court entered the judgment of conviction.
Although the initial consideration of sentence credit tolled
the statute of limitations period, Blunt's second motion
was filed after the expiration of the limitations period. The
motion did not toll the one-year statute of ...