United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
Bobbie Torry, who is incarcerated at Fox Lake Correctional
Institution, has filed a pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2254, challenging his
January 2002 conviction for attempted first degree homicide,
false imprisonment, sexual assault and substantial battery.
He has paid the $5 filing fee, so his petition is ready for
screening pursuant to Rule 4 of the Rules Governing Section
2254 Cases. Rule 4 requires the court to examine the petition
and supporting exhibits and dismiss a petition if it
“plainly appears” that petitioner is not entitled
to relief. See also 28 U.S.C. § 2243 (habeas
court must award writ or order respondent to show cause why
writ should not be granted, unless application makes it clear
that petitioner is not entitled to relief).
reviewing petitioner's submissions and relevant court
records, I conclude that the petition is clearly untimely and
must be dismissed.
to the petition, attachments and electronic court records,
petitioner was sentenced in Dane County case no. 2001CF000560
on January 16, 2002. The Wisconsin Court of Appeals allowed
petitioner until December 23, 2002 to file a notice of appeal
or motion for postconviction relief. He filed a notice of
appeal on December 11, 2002, but the appeal was dismissed on
December 11, 2003. The Wisconsin Supreme Court denied his
petition of review on February 25, 2004. Petitioner filed
several postconviction motions and appeals with the state
circuit court and court of appeals between 2004 and 2011. In
2009, petitioner filed a habeas petition in this court, but
it was dismissed without prejudice for petitioner's
failure to prosecute because he failed to submit either the
$5 filing fee or a completed application for leave to proceed
in forma pauperis. Case no. 09-cv-656-slc, dkt. #3.
On August 27, 2018, petitioner filed a motion to reopen that
petition and add new claims. Because a petition that is
dismissed for failure to pay the filing fee does not
“count” as a first petition, petitioner's
most recent attempt to file a habeas petition attacking his
2002 conviction is treated as his first. Pavlovsky v.
VanNatta, 431 F.3d 1063, 1064 (7th Cir. 2005). The last
state court ruling in petitioner's case was in June 2011,
and petitioner did not seek to challenge his conviction or
sentence again until he filed his habeas petition in 2018.
brought under 28 U.S.C. § 2254 have a one-year statute
of limitations that begins to run from the date on which the
judgment of conviction is final. Petitioner states in his
petition that his claims are not barred by the one-year
statute of limitations because he filed his original petition
in a timely manner. However, he abandoned his initial
petition by deciding not to pursue it. Although petitioner
was entitled to file a new petition, the one-year clock
continued to run during the nine years that he waited to file
it. Petitioner may contend that his one-year clock was tolled
because he filed at least one postconviction motion with the
state court in 2010. (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
final ruling with respect to that postconviction motion was
in June 2011, more than seven years before petitioner filed
his habeas petition in August 2018. In other words, by the
time petitioner filed his habeas petition in 2018, his
federal habeas clock had long since run.
one-year deadline for filing habeas petitions may be extended
in one of three circumstances: (1) the state prevented the
petitioner from filing earlier; (2) the Supreme Court has
recognized a new constitutional right; (3) or the petitioner
has discovered new facts supporting his claim. 28 U.S.C.
§ 2244(d)(1)(B)-(D). Petitioner has not alleged any
action on the part of the state or a newly recognized
constitutional right, but he stated in his Rule 60 motion
that he “recently discovered” that the police
officers who arrested him for the crimes for which he was
ultimately convicted lacked a warrant for his arrest.
However, attached to his petition is a copy of a letter dated
April 2, 2008, in which the Clerk of Court for Dane County
notified petitioner that there was no arrest warrant filed in
his case. Dkt. #3, exh. #5. In addition, petitioner raised
the lack of an arrest warrant in his most recent
postconviction motion, which was denied on appeal in 2011.
Petitioner has not provided any explanation for why he waited
seven years to raise the issue in a habeas petition.
petitioner has shown no basis for tolling the one-year habeas
deadline. Holland v. Florida, 560 U.S. 631, 649
(2010) (“[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.”); Tucker v. Kingston, 538 F.3d 732,
734 (7th Cir. 2008) (equitable tolling is extraordinary
remedy that is rarely granted). 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). In sum, because petitioner 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. Because no reasonable jurist would
disagree that the petition is untimely and that petitioner
has failed to show that equitable tolling should apply,
petitioner is not entitled to a certificate of appealability.
ORDERED that the federal habeas corpus petition filed by
Bobbie Torry is DENIED and this case is DISMISSED with
prejudice. A certificate of appealability is DENIED. If
petitioner wishes, he may seek a ...