United States District Court, E.D. Wisconsin
ROBERT E. BURNETTE, Petitioner,
CATHY JESS, Respondent. December 10, 2019 January 2, 2020 January 9, 2020
STADTMUELLER U.S. DISTRICT JUDGE
September 30, 2019, the petitioner Robert E. Burnette
(“Burnette”) filed a petition pursuant to 28
U.S.C. § 2254, asserting that his state court conviction
and sentence were imposed in violation of the Constitution.
(Docket #12). In 2012, Burnette was charged in Racine County
Circuit Court with sexually assaulting a child. Id.
at 2. He entered an Alford plea and in 2013 was sentenced
to eleven years' imprisonment. Id. Burnette
filed a direct appeal, as well as several post-conviction
motions, all of which have been denied. Id. at 3-5.
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
Burnette's 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 Section 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 Cir. 2002)).
it appears that Burnette's petition is untimely.
According to publicly available records of the Wisconsin
court system, Burnette was sentenced on February 5, 2013, and
judgment was formally entered two days later. See State
of Wisconsin v. Robert E. Burnette, Racine County
Circuit Court No. 2012-CF-214, Court Records, available
at: https://wcca.wicourts.gov. Burnette's direct
appeal concluded on November 1, 2016. He did not seek
certiorari review in the U.S. Supreme Court. Burnette then
filed his first motion for post-conviction relief on January
17, 2017. That motion made its way through the circuit court
and court of appeals and was finally denied on April 17,
2018. Burnette's second and final post-conviction motion
was filed on July 19, 2019. That motion was quickly denied by
both the circuit and appellate courts, with proceedings
concluding on October 28, 2019.
timeline reveals that Burnette's federal habeas statute
of limitations began to run on January 30, 2017, which was
ninety days from the date his state appeals concluded. The
one-year clock did not actually begin to tick, however,
because Burnette had already filed a post-conviction motion.
28 U.S.C. § 2244(d)(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 [the Section
2254 limitations period].”). When the first
post-conviction motion was denied, the hold on the clock was
released and the one-year period began to expire. The period
did finally expire on April 17, 2019. Burnette's second
post-conviction motion was not filed until three months after
that date. That motion could not toll any time itself, as the
clock had already run out, and it did not restart the
limitations period. Graham v. Borgen, 483 F.3d 475,
477, 482-83 (7th Cir. 2007).
Burnette 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 Burnette's 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,
Burnette 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
where it applies, equitable tolling can only offer a
“brief extension of time during which a late filing
will be accepted.” Gray v. Zatecky, 865 F.3d
909, 912 (7th Cir. 2017). The Seventh Circuit has held that a
petition which was just two months late could not be saved by
equitable tolling. Gladney, 799 F.3d at 894-95.
Thus, it appears unlikely that Burnette will be able to
present evidence that would warrant equitable tolling in his
case. Nevertheless, 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.
Court will, therefore, order briefing on the statute of
limitations issue prior to concluding its screening of the
petition or hearing any argument on the merits of the case.
The parties will present their positions on the timeliness of
Burnette's petition in accordance with the following
Respondent's opening brief:
December 10, 2019
January 2, 2020
January 9, 2020
dates are not subject to adjustment. Once briefing is
complete, the Court will make a final determination on the
timeliness issue. If Burnette's petition survives, the
Court will complete the screening process.
also requests leave to proceed without prepayment of the
$5.00 filing fee owed in this matter. (Docket #13). A review
of his prison trust account statement, (Docket #14), reveals
that he spends nearly all of his bi-weekly salary on canteen
purchases. The Court concludes that Burnette can spare $5.00
to pay the filing fee, and will therefore deny his motion for
leave to proceed without prepayment of the filing fee.
Burnette must pay the filing fee no later than
December 3, 2019, or this action will be
dismissed without prejudice and without further notice.
IT IS ORDERED that, on or before
December 10, 2019, Respondent shall file a
brief concerning the timeliness of Petitioner's petition.
On or before January 2, 2020, Petitioner
shall file a response to Respondent's brief. On or before
January 9, 2020, Respondent shall file a
reply. There will be no extensions of time granted for the
filing of these briefs; and IT IS FURTHER
ORDERED that Petitioner's motion for leave to
proceed without prepayment of the filing fee ...