United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
April 5, 2018, Petitioner Xzandre Sillas
(“Sillas”) filed this petition pursuant to 28
U.S.C. § 2254, asserting that his state court
convictions and sentence were imposed in violation of the
Constitution. (Docket #1). In 1996, after proceeding to trial
in Milwaukee County Circuit Court, Sillas was convicted of
three counts of kidnapping and three counts of sexual
assault. Id. at 2. He was sentenced to 210
years' imprisonment. Id. Sillas did not file a
direct appeal of his convictions or sentence.
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
Sillas' 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
petition presents an enormous timeliness problem. Sillas'
sentence was imposed on September 27, 1996. (Docket #1 at 2).
In the absence of an appeal, his conviction became final on
November 26, 1996. See Wis. Stat. §§
974.02, 809.30(h). Thus, Sillas' Section 2254 limitations
period began to run as of that date. Sillas' instant
petition was filed more than twenty years after the
limitations period expired. Sillas did file a motion for
post-conviction relief, but not until November 16, 2014.
(Docket #1 at 4). Such a motion can toll the expiration of
the statute of limitations, but it does not restart the
clock. Graham v. Borgen, 483 F.3d 475, 477 (7th Cir.
2007). In other words, Sillas' one-year window closed
long before his post-conviction motion was filed, so there
was nothing for the motion to toll.
Sillas 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 Sillas' 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, Sillas
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 Sillas 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 1006.
of the nigh-insurmountable procedural hurdle Sillas'
petition faces, the Court will order briefing on the statute
of limitations issue prior to any argument on the merits of
before the parties begin briefing the timeliness issue, one
other issue must be addressed. Sillas has not paid the
mandatory $5.00 filing fee owed in this matter. Instead, he
has requested leave to proceed without prepayment of the
$5.00 filing fee. (Docket #2). His prison trust account
statement, see (Docket #3), reveals that Sillas can
afford the filing fee, and therefore the Court will deny his
petition to proceed without prepaying that fee.
Court will order that Sillas pay the $5.00 filing fee within
twenty-one (21) days of the entry of this Order. If Sillas
does not pay the fee, this case will be dismissed without
further notice. If Sillas pays the fee, the Court will enter
an order directing the parties to file briefs regarding the
timeliness of Sillas' petition.
IT IS ORDERED that Petitioner's motion
to proceed without prepayment of the filing fee (Docket #2)
be and the same is hereby DENIED; and
IS FURTHER ORDERED that, on or before
twenty-one (21) daysfrom the entry
of this Order, Petitioner shall pay the $5.00 filing
fee owed in this matter. Failure to pay the filing fee will