United States District Court, E.D. Wisconsin
WILLIAM D. ROGERS, JR., Petitioner,
BRIAN FOSTER, Respondent.
STADTMUELLER, U.S. DISTRICT JUDGE
August 9, 2018, Petitioner William D. Rogers, Jr., who is
proceeding in this matter pro se, filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Docket #1). On September 5, 2018, Magistrate Judge William
E. Duffin screened the petition and noted that while it was
not “plainly apparent” that Petitioner was not
entitled to relief, it appeared that the statute of
limitations might bar the petition. (Docket #5 at 1-2). On
November 1, 2018, Respondent submitted a motion to dismiss on
the grounds that the petition is untimely. (Docket #9). That
motion is now fully briefed. For the reasons explained below,
the motion will be granted, and the petition and certificate
of appealability will be denied.
February 21, 2008, Rogers pled guilty to homicide charges in
Milwaukee County Circuit Court No. 2007CF4409. (Docket #10-4
at 9). A judgment was entered against him on April 21, 2008,
which was subsequently amended to clarify a prison sentence
on July 29, 2008. Id. at 7- 8. After he was
convicted, Rogers attempted to withdraw his plea, claiming
that his trial counsel had provided ineffective assistance.
(Docket #10-2 at 1-2). The trial court declined to let him
withdraw his plea. Rogers appealed the conviction, arguing
ineffective assistance of counsel because his counsel had not
secured a second medical opinion in support of a not guilty
by reason of insanity plea. Id. at 2-3. The
Wisconsin Court of Appeals upheld the conviction, explaining
that he had not shown that his trial counsel's actions
prejudiced him. Specifically, the Wisconsin Court of Appeals
Rogers does not allege that additional medical evaluations
would have uncovered an expert whose opinion would have
supported a plea of not guilty by reason of mental disease or
defect. Rogers thus has not made the requisite showing that
additional evaluations would have led to information that
would have helped him. . .Since Rogers has not shown that the
result of the proceeding would have been different had his
attorney sought additional medical evaluations of him, he has
not shown that he was prejudiced.
State v. Rogers, No. 2009AP1851-CR, unpublished slip
op. ¶ 5 (Wis. Ct. App. Aug. 17, 2010); (Docket #10-2 at
3). On October 27, 2010, the Wisconsin Supreme Court denied
review of the petition. (Docket #10-3 at 1). There is no
evidence that Rogers appealed this denial to the United
States Supreme Court.
six years later, on January 17, 2017, Rogers submitted a
motion pursuant to Wis.Stat. § 974.06, which allows
convicted individuals to collaterally attack their
convictions. See (Docket #10-4 at 3). This motion
was denied on January 20, 2017. Id. at 4. On July 5,
2017, Rogers filed a petition for writ of habeas corpus with
the Wisconsin Court of Appeals, again arguing ineffective
assistance of counsel. See Id. at 2. On September
13, 2017, the Wisconsin Court of Appeals denied his petition.
(Docket #10-5 at 1). On February 13, 2018, the Supreme Court
also denied review of his petition. (Docket #10-6 at 1). The
instant federal habeas petition was mailed on August 6, 2018,
and docketed three days later. (Docket #1). In it, Rogers
claims ineffective assistance of trial counsel,
post-conviction counsel, and appellate counsel in relation to
his desired not guilty by reason of insanity plea.
U.S.C. § 2244(d)(1)(A) sets forth the following
applicable limitations period:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of. . .the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.
statute further provides that the limitations period will be
tolled while any properly filed application for
post-conviction relief or collateral review is pending.
Id. § 2244(d)(2).
28 U.S.C. § 2244(d)(1)(A), Rogers' conviction would
have become final ninety (90) days after the Wisconsin
Supreme Court denied his petition for review; i.e., on
January 25, 2011. See Anderson v. Litscher, 281 F.3d
672, 674-75 (7th Cir. 2002). Rogers therefore had until
January 25, 2012 to file a petition for review in federal
court. He failed to do so. His state habeas petitions in 2017
do not affect the limitations period because they were filed
after the federal statute of limitations expired. Teas v.
Endicott, 494 F.3d 580, 582-83 (7th Cir.
are two exceptions to the bar on untimely habeas petitions:
equitable tolling and the “actual innocence”
gateway. Rogers does not argue either of them, and neither
seem to apply here. Rogers would be “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) (citations and quotations omitted). “It
is the petitioner's burden to establish both of these
points.” Socha v. Boughton, 763 F.3d 674, 683
(7th Cir. 2014). Rogers has not shown that he was pursuing
his rights diligently from 2011 to 2017, the yawning period
of time between his final conviction and his state habeas
petitions. Nor has Rogers described any extraordinary
circumstances that prevented him from timely filing his
illness or disability may toll the statute of limitations
“only if the illness in fact prevents the
sufferer from managing his affairs and thus from
understanding his legal rights and acting upon them.”
Obreicht v. Foster, 727 F.3d 744, 750-51 (7th Cir.
2013) (quoting Miller v. Runyon, 77 F.3d 189, 191
(7th Cir. 1996)) (emphasis in original). Effectively, Rogers
would have had to provide evidence that his mental competency
during the relevant limitations period directly prevented ...