United States District Court, E.D. Wisconsin
DONTRE K. JOHNSON, Petitioner,
BRIAN FOSTER, Respondent.
RULE 4 ORDER
Joseph United States Magistrate Judge.
K. Johnson, a prisoner in Wisconsin custody, seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Docket #
1.) Johnson was convicted of two counts of repeated sexual
assault of a child and was sentenced to forty years of
imprisonment, consisting of twenty-six years of initial
confinement followed by fourteen years of extended
supervision. (Id. at 2.) Johnson alleges that his
conviction and sentence are unconstitutional. On September
24, 2019, Magistrate Judge David Jones entered an order
pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
(Docket # 10.) In the order, Judge Jones found Johnson's
habeas petition untimely pursuant to 28 U.S.C. §
2244(d)(1)(A); however, noted that he had insufficient
information to determine whether Johnson's petition was
timely under § 2244(d)(1)(B)-(D). (Id. at 3.)
As such, Judge Jones gave Johnson an opportunity to show
cause as to why his petition should not be dismissed.
(Id. at 4.) The case was subsequently reassigned to
me and Johnson again consented to magistrate judge
jurisdiction. (Docket # 11.)
filed a response to the show cause order, arguing that
pursuant to 28 U.S.C. § 2244(d)(2), a properly filed
post-conviction motion tolls the statute of limitations while
it is pending. (Docket # 12.) Johnson is correct and the
court miscalculated the timeliness of Johnson's petition
under 28 U.S.C. § 2244(d)(1)(A).
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254, governs this
case. Under AEDPA, habeas petitions challenging state court
confinement are subject to the statute of limitations set
forth in 28 U.S.C. § 2244. That section provides that
“[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.” 28
U.S.C. § 2244(d)(1). Additionally, the statute specifies
when the one-year limitations period begins to run, and also
provides that the period of limitations is tolled while
certain state proceedings are pending.
the statute provides as follows:
The limitation period shall run from the latest of-
(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.
(2) 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 shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d).
Johnson's claim under 28 U.S.C. § 2244(d)(1)(A), I
note that Johnson sought direct review of his conviction.
(Docket # 1 at 3.) The Wisconsin Supreme Court denied his
petition for review on August 5, 2015 and Johnson did not
seek certiorari in the United States Supreme Court on his
direct appeal. (Id. at 4.) Thus, direct review of
his conviction ended when his time to do so expired, ninety
days after the Wisconsin Supreme Court denied his petition
for review. See Anderson v. Litscher, 281 F.3d 672,
674-75 (7th Cir. 2002). Ninety days after August 5, 2015 was
November 3, 2015. For purposes of habeas review,
Johnson's one-year statute of limitations began to run
the next day, on November 4, 2015. See Anderson, 281
F.3d at 675.
a properly filed motion for post-conviction relief in state
court tolls the one-year habeas statute of limitations, 28
U.S.C. § 2244(d)(2), and Johnson filed a Wis.Stat.
§ 974.06 motion for postconviction relief in the circuit
court collaterally attacking his conviction on May 5, 2016.
(Docket # 1 at 4.) Thus, while the one-year statute of
limitations was tolled on May 5, 2016, it was running from
November 4, 2015 until May 4, 2016. In other words, as of May
4, 2016, 183 days of Johnson's 365-day statute of
limitations had already run. The Wisconsin Court of Appeals
affirmed the trial court's decision on August 14, 2018
(Docket # 1-1 at 13) and the Wisconsin Supreme Court denied
Johnson's petition for review on December 11, 2018
(Docket # 1-1 at 29). Johnson's statute of limitations
began running again on December 12, 2018, the day after the
supreme court's decision. Again, 183 days of the 365-day
statute of limitations had already run at this point; thus,
as of December 12, 2018, Johnson had 182 days to file his
federal habeas petition (365 days minus 183 days). Thus,
Johnson had to file his federal habeas petition by June 13,
2019 and the petition was in fact filed on April 19, 2019.
(Docket # 1 at 12.) In the prior ...