MARC CLEMENTS, WARDEN, ELLIOT DON RAY, BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI. No In The Supreme Court of the United States

Transcription

1 No In The Supreme Court of the United States MARC CLEMENTS, WARDEN, v. Petitioner, ELLIOT DON RAY, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI Jeetander T. Dulani Counsel of Record Thomas C. Hill Naomi J. Mower PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street N.W. Washington, D.C (202) jeetander.dulani@pillsburylaw.com Counsel for Respondent Dated: May 3, 2013 THE LEX GROUP DC 1825 K Street, N.W. Suite 103 Washington, D.C (202) (800) Fax: (202)

2 i QUESTIONS PRESENTED 1. Whether the Seventh Circuit properly interpreted Wisconsin law as requiring application of the mailbox rule to Elliot D. Ray s state postconviction motion. 2. Whether, in applying the mailbox rule, the Seventh Circuit correctly adopted the same burden-shifting framework that every other circuit to address the issue has employed. 3. Whether the Seventh Circuit properly found the district court s factual findings to be clearly erroneous.

3 ii TABLE OF CONTENTS Page QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv INTRODUCTION... 1 STATEMENT OF THE CASE... 4 A. Mr. Ray s unconstitutional conviction... 4 B. The State s failure to develop the record... 5 C. The evidentiary hearing... 7 D. The district court s decision E. The Seventh Circuit s decision REASONS FOR DENYING THE PETITION I. The Seventh Circuit s Application of the Mailbox Rule in this Case Turned on an Interpretation of Wisconsin Law and Does Not Present a Substantial Federal Question or Any Question on which the Circuits are Divided... 14

4 iii II. III. The Seventh Circuit s Adoption of the Same Burden-Shifting Framework Employed by Other Circuits Does Not Warrant Certiorari Certiorari Is Not Warranted to Review the Seventh Circuit s Conclusion that the District Court s Factual Findings were Clearly Erroneous CONCLUSION APPENDIX: Exhibit Admitted at Evidentiary Hearing entered July 28, 2011: 0. Affidavit of Elliot Don Ray dated January 14, App-1

5 iv TABLE OF AUTHORITIES Page(s) CASES Adams v. LeMaster, 223 F.3d 1177 (10th Cir. 2000), cert. denied, 531 U.S (2001) Allen v. Culliver, 471 F.3d 1196 (11th Cir. 2006)... 21, 22 Caldwell v. Amend, 30 F.3d 1199 (9th Cir. 1994)... 21, 22 Causey v. Cain, 450 F.3d 601 (5th Cir. 2006)... 17, Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), cert. denied, 529 U.S (2000)... 18, 19 Fernandez v. Artuz, 402 F.3d 111 (2d Cir. 2005), cert. denied, Haponik v. Fernandez, 546 U.S. 816 (2005)... 2, 19 George v. Smith, No. 05-C-0403-C, 2006 WL (W.D. Wis. Dec. 12, 2006), aff d, 507 F.3d 605 (7th Cir. 2007)... 18

6 v Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401 (6th Cir. 1999), cert. denied, 529 U.S (2000) Holleman v. Cotton, 301 F.3d 737 (7th Cir. 2002), cert. denied, 540 U.S. 827 (2003)... 26, 32 Houston v. Lack, 487 U.S. 266 (1988)... passim Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001)... 24, 25 In re Marriage of Meyer, 775 N.W.2d 123 (Wis. Ct. App. 2009) Int l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) Knox v. Cook County Sheriff s Police Dep t, 866 F.2d 905 (7th Cir. 1988) Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003) Payne v. Comm r of Internal Revenue, 224 F.3d 415 (5th Cir. 2000) Ray v. Boatwright, 592 F.3d 793 (7th Cir. 2010), cert. denied, 131 S. Ct. 595 (2010)... 4, 5, 10 State ex rel. Kelley v. State, 661 N.W.2d 854 (Wis. Ct. App. 2003)... 15

7 vi State ex rel. Nichols v. Litscher, 635 N.W.2d 292 (Wis. 2001)... 11, 15, 17 State ex rel. Shimkus v. Sondalle, 620 N.W.2d 409 (Wis. Ct. App. 2000)... 15, 16 Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009)... 18, 24 Taylor v. Williams, 528 F.3d 847 (11th Cir. 2008) United States v. Marshall, 157 F.3d 477 (7th Cir.), cert. denied, 525 U.S (1998) Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003) Webster v. Moore, 199 F.3d 1256 (11th Cir.), cert. denied, 531 U.S. 991 (2000) Zepeda v. Walker, 581 F.3d 1013 (9th Cir. 2009) STATUTE 42 U.S.C RULES Fed. R. App. P. 4(c)... 12, 20 Fed. R. App. P. 4(c)(1) Sup. Ct. R

8 vii OTHER AUTHORITY Oklahoma DOC Security policy OP , available at 29

9 1 INTRODUCTION Petitioner seeks review of the Seventh Circuit s straightforward application of the prison mailbox rule to the unique facts of this case. In doing so, Petitioner fails to articulate much less satisfy this Court s criteria for certiorari. See Rule 10. First, the Seventh Circuit s application of the mailbox rule presents no substantial federal question because it is merely an interpretation of Wisconsin law. A25 1 ( Wisconsin procedural law is at issue here, and we think it is clear that Wisconsin has fully embraced the Houston mailbox rule. ). No circuit court has ever declined to apply the mailbox rule for AEDPA tolling purposes after finding that a state would follow it. However, even if the Court disagreed with the Seventh Circuit s interpretation of Wisconsin law, there would still be no circuit split to resolve. The only genuine circuit split concerns whether the mailbox rule applies when a state clearly rejects it, which Wisconsin certainly has not. The Seventh Circuit s decision follows the approach adopted by the majority of circuits, which look to state law to decide whether the mailbox rule applies for AEDPA tolling purposes. More expansively, the Second Circuit would apply the mailbox rule regardless of 1 For the Court s convenience, all citations with the prefix A make reference to the Petitioner s Appendix to their Petition for Writ of Certiorari in the instant case. All citations with the prefix SA- make reference to the Separate Appendix of Elliot Don Ray filed on December 9, 2011 in the case before the Seventh Circuit (Ray v. Clements, No ) (Dkt. No. 9). Also, all citations with the prefix App- make reference to the Appendix of Respondent in the instant case.

10 2 the State s position. See Fernandez v. Artuz, 402 F.3d 111, 115 (2d Cir. 2005) ( New York s rejection of the mailbox rule does not preclude its application by a federal court in tolling a federal statute of limitations. ) (emphasis in original), cert. denied, Haponik v. Fernandez, 546 U.S. 816 (2005). However, that question is not presented here because Wisconsin, unlike New York, has never rejected the mailbox rule. Moreover, the result in this case would be the same under either the majority or the minority rule. As such, this case does not present a conflict for this Court to resolve. Second, certiorari is inappropriate because the Seventh Circuit s burden-shifting framework accords with every circuit decision applying the mailbox rule to determine whether a state petition was timely filed for AEDPA tolling purposes and is firmly grounded in this Court s clear guidance in Houston. Houston v. Lack, 487 U.S. 266, 276 (1988) (evidence concerning the reasons a motion was filed late will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay ). The framework actually places a stiff evidentiary burden on prisoners whose petitions are not received, requiring detailed declarations and corroborating evidence, all of which protect the State from frivolous petitions and ensure that federal courts will not open the door to abuse. A41. Third, although Petitioner urges this Court to grant certiorari merely to review the Seventh Circuit s reversal of the district court s factual findings, that argument would seldom support

11 3 certiorari even if it was correct and it is not. The Seventh Circuit had ample reason to find that the district court committed clear error. Only by mischaracterizing both the decision below and the record can Petitioner portray the decision as wrong on the merits. For example, Petitioner s claim that the Seventh Circuit ignored the district court s factual findings disregards the district court s numerous errors and unsupported assumptions. These evidentiary failures correctly led the Seventh Circuit to conclude, under well-established precedent, that the district court s findings were clearly erroneous. At its core, this is an ordinary merits appeal which was correctly decided on the merits. The petition should be denied.

12 4 STATEMENT OF THE CASE The State s petition mischaracterizes key aspects of the record. 2 The following sections provide additional context to the Court. A. Mr. Ray s unconstitutional conviction On April 1, 2010, the Seventh Circuit concluded that Respondent Elliot D. Ray was wrongfully convicted of participating in a retaliatory shoot-out, and resulting homicide in Milwaukee, Wisconsin. Ray v. Boatwright, 592 F.3d 793, (7th Cir. 2010), cert. denied, 131 S. Ct. 595 (2010). The principal issue at trial was whether Mr. Ray withdrew from the conspiracy before the shooting. The prosecution had no physical evidence or eyewitness testimony placing Mr. Ray at the scene. Its only evidence was the out-of-court statements of his alleged co-actors, which were the product of custodial interviews with the police. But those alleged co-actors did not testify. Instead, a police detective relayed their out-of-court statements to the jury, and the prosecutor used the statements in his closing argument. The Seventh Circuit found that the prosecution s evidence delivered to the jury statements by named co-actors, not available for cross examination, accusing Ray of the very crimes with which he stood charged. Id. at 797. This was a clear violation of Ray s constitutional right of 2 The complete transcript of the evidentiary hearing was provided to the Seventh Circuit. See Dkt. Nos In addition, the State has failed to include the actual affidavit that was submitted at the evidentiary hearing. A copy of that affidavit is attached to this petition as App-1 App-6.

13 5 confrontation. Id. And because the out-of-court statements were the only evidence placing Mr. Ray at the scene of the crime, the confrontation clause violation seriously affected the fairness of the judicial proceedings. Id. at 798. Although the Seventh Circuit found that Mr. Ray suffered a violation of his constitutional rights, the State argued that his federal habeas petition was untimely because Mr. Ray s state post-conviction motion was not filed in Wisconsin within the deadline for tolling AEDPA s statute of limitations. Mr. Ray explained that his motion was timely because he gave it to prison officials for mailing before the statute of limitations expired. But the State claimed otherwise. The court found no evidence in the record to support the government s assertions, noting that the record currently reflects that Ray served a copy of his pro se post-conviction petition to prison officials on April 27, Ray, 592 F.3d at Out of an abundance of caution, however, the Seventh Circuit remanded the case to the district court so that the government may have an opportunity to develop the record on this issue. Id. at 799. This Court denied certiorari on November 15, Boatwright v. Ray, 131 S. Ct. 595 (2010). B. The State s failure to develop the record On remand, the State did not further develop the record in support of its theory that Mr. Ray

14 6 never gave his motion to prison officials for filing. Instead, it filed a motion to dismiss on December 21, 2010, making the exact same claims about the exact same evidence in the record that the Seventh Circuit already found unconvincing. Dkt. No. 44 (Ray v. Pollard, No. 1:07-cv WCG (E.D. Wis.)). Mr. Ray opposed the State s motion to dismiss and filed a motion for summary judgment, along with a number of uncontested exhibits. Dkt. No (Ray v. Pollard). Those exhibits included Mr. Ray s sworn affidavit detailing his claim that on April 27, 2004, he gave his motion to Ms. Tamara Smith, a Diamondback Prison 3 social worker, with prepaid postage for mailing to the Wisconsin Circuit Court of Milwaukee County. The affidavit described the two receipts that Ms. Smith provided. The record also included a copy of one of the receipts and copies of three letters that Mr. Ray sent to Ms. Smith inquiring about his post-conviction motion, along with a copy of a notarized letter that he sent to the Milwaukee clerk of court on October 6, 2006 to determine the status of his motion. The district court held that the prison mailbox rule applied, but denied both parties pending motions and ordered an evidentiary hearing to determine whether Mr. Ray gave Ms. Smith his motion as he described in his affidavit. Dkt. Nos (Ray v. Pollard). 3 On that date, Mr. Ray was held at the Diamondback Correctional Facility in Oklahoma, a facility owned and operated by Corrections Corporation of America ( CCA ) pursuant to a contract with the State of Wisconsin.

15 7 C. The evidentiary hearing At the July 28, 2011 hearing, the State claimed that Mr. Ray s affidavit was false and that his documents were manufactured. In support of its theory, it submitted three pieces of evidence. Two of those pieces of evidence focused on whether Mr. Ray purchased stamps before he sent letters to Ms. Smith inquiring about his post-conviction motion. SA-050 SA-053, SA-182 SA-184. The State s sole witness, Ms. Michelle Highley, testified about Mr. Ray s trust account balances at Green Bay Correctional. She confirmed that according to Mr. Ray s trust account statement, Mr. Ray did not make any purchases until June 14th, 2004, which was after Mr. Ray sent the first letter to Ms. Smith. SA Ms. Highley admitted, however, that there were many other ways for a prisoner like Mr. Ray to get stamps to mail letters, including hanging on to stamps that were previously purchased, borrowing stamps from other inmates, and having family members provide envelopes with prepaid postage. SA-052 SA-053. The State s third and final piece of evidence at the hearing was a communication, mail and visiting policy for Diamondback Correctional Institution. SA-185 SA-195. The policy described which types of correspondence were privileged and how the legal mail system at Diamondback normally worked, including details about the mail logs that Diamondback kept for all outgoing prisoner mail. SA-081 SA-082, SA-105 SA-108. However, the mail policy did not address what procedures would apply when prisoners were administratively confined, as Mr. Ray had been on the date in

16 8 question. SA-185 SA-195. Moreover, the State failed to submit any documentary evidence or witnesses to explain how legal mail is handled in these circumstances, and it failed to submit any outgoing mail logs from Diamondback, or any testimony from Diamondback or CCA regarding the mail logs or the mail policy. SA-111 SA-113. Notwithstanding the Seventh Circuit s directive to the State to develop the record on this issue, the State presented no other evidence. Notably, it did not produce Ms. Tamara Smith, or any other Diamondback or CCA employees to rebut any of the facts in Mr. Ray s affidavit, or to evaluate the veracity of the receipt that Mr. Ray received from Ms. Smith which had been in the record since February In contrast to the State s evidence, Mr. Ray provided a sworn declaration, live testimony, numerous pieces of documentary evidence, and multiple corroborating witnesses all of which were uncontroverted by the State. Mr. Ray testified in detail about his interactions with Ms. Smith, explaining that he gave his motion to Ms. Smith to mail because his unit was on administrative confinement and he could not access the prison s mail system. SA-056 SA-059. He explained that during periods of administrative confinement, prisoners commonly gave mailings to social workers or staff members during lunch, which he did with Ms. Smith on April 27, SA-056. He described where and when he interacted with Ms. Smith after giving her his motion, and he detailed how she searched through cabinet desk drawers in the social worker s office to find the certificate of service by

17 9 mail form ( Certificate of Service ), which she asked Mr. Ray to fill out, and which he submitted at the hearing for the second time. SA-057, SA-129, SA Mr. Ray explained that, although the Certificate of Service did not have any markings identifying it as a CCA or Diamondback form, there were other prison forms that also lacked such identification. SA-057 SA-058. He authenticated one such form for the court, which similarly lacked any official markings and which was rife with typographical errors with all but one sentence containing an error. SA-058, SA-180. The State presented no evidence about the Certificate of Service, or the other prison forms. Mr. Ray also described a second receipt ( CCA Receipt ) that Ms. Smith signed. He did not include this receipt in his federal habeas petition, but he tracked it down and submitted it to the prison in Wisconsin where he was then housed, for copying in preparation for the hearing. SA-064 SA-065, SA-068. Two prison officials from the Wisconsin facility Officer Nedbal and Ms. Martin, the prison librarian called to testify by Mr. Ray testified that the copies were made, that they followed the prison s screening and review policies, and that there was nothing suspicious about the materials submitted for copying. SA-015 SA-048. Ms. Martin testified that the copies and the original were lost, and that no one at the prison ever suggested that Mr. Ray was lying about the copies. SA-045 SA-046, SA-069 SA-078, SA-146 SA-163. The State did not present a single witness or piece of evidence in support of its claim that Mr. Ray was lying about them. SA-030, SA-043.

18 10 Mr. Ray also testified about and authenticated the letters he then wrote to Diamondback in Oklahoma and the Milwaukee Court inquiring about his motion. SA-064 SA-078. After writing three letters to Ms. Smith and not receiving any responses from Diamondback, Mr. Ray sent a notarized letter to the court to inquire about his motion, after which he discovered that the court never received his motion. SA-066. He promptly submitted another motion, and again wrote to Ms. Smith and the Warden at Diamondback to ask about his previous motion. SA-068 SA-069, SA-095 SA-098. D. The district court s decision The district court denied Mr. Ray s habeas petition on August 23, A16. And even though the Seventh Circuit had remanded the case to the district court so that the government may have an opportunity to develop the record on this issue, the district court placed the burden of proof on Mr. Ray instead of the State. Ray, 592 F.3d at 799; A54. Moreover, the district court accepted the State s theory that Mr. Ray concocted an elaborate scheme to defraud the court and subvert AEDPA s statute of limitations. A53 A56. The district court did not identify any direct or circumstantial evidence offered by the State that contradicted Mr. Ray s explanation of what happened. The court noted that [i]t certainly would have been helpful to have Ms. Smith testify about what, if anything she recalls. A126. The court also acknowledged that it would have been helpful if Ms. Smith or some[one] else from Diamondback could have explained the procedure and forms used for

19 11 outgoing legal mail. Id. The court also acknowledged the absence of a mail log, but claimed that the State s failure to obtain and introduce into evidence a copy of the mail log from Diamondback was not significant because the mail log would tell us nothing. Id. The district court then explained that [i]f Ray was still pro se, Respondent s failure to produce such evidence might be viewed differently, but Ray has been represented [pro bono] by a reputable Chicago law firm since December 4, A126. The court did not explain why the issue of who bears the burden of proof depends on the quality of a prisoner s counsel at the time of the hearing. E. The Seventh Circuit s decision Mr. Ray appealed, and in a fifty-seven-page opinion, the Seventh Circuit found that the district court had erred. The panel examined Wisconsin procedural law and concluded that it is clear that Wisconsin has fully embraced the Houston mailbox rule. A25. Specifically, the court found that [b]ecause the Wisconsin Supreme Court held in Nichols that the mailbox rule operates to file a pro se prisoner s court document when the prisoner delivers it to a prison official for mailing, that pronouncement governs. A29. The panel then turned to the question of who bears the burden of proof in applying the mailbox rule. The panel explained that courts traditionally place the burden of proof on the party in the best

20 12 position to prove its case, and observed that the State is in a better position to do so than a pro se prisoner. A33. Recognizing that other circuits have adopted a burden-shifting approach to applying the mailbox rule, the panel announced that it would follow their lead. A34. Under this approach, the petitioner bears the initial burden of identifying (by a sworn declaration in compliance with Fed. R. App. P. 4(c)) the who, what, when, where, how, and why of his timely delivery to a prison official and providing some additional corroborative evidence. A43. This additional evidence can be documentary (receipts, copies of the filing, postmarked envelope) or testimonial. A41. The court explained that [o]nce the petitioner makes this evidentiary showing,... the burden shifts to the state to prove that the federal habeas petition is untimely. A43. Finally, the panel found that the district court erroneously placed the burden of proof on Mr. Ray. A54. And after reviewing the evidence, it held that the state did not submit any evidence to contradict Ray s testimony and evidence and did not carry its burden of proving that Ray s federal habeas petition was untimely. Id. The panel noted the limited value of the only evidence submitted by the State. A50 A51. Ms. Highley s testimony on Mr. Ray s postage purchases proved irrelevant when she admitted that Mr. Ray could have retained postage from earlier purchases, borrowed stamps from other prisoners, or received postage from family members or friends who were not incarcerated. A50. Similarly, the prison mail policy added nothing of substance because it did not address what happened when prisoners were administratively confined, and the state did not produce Ms. Smith

21 13 or some other prison official to counter Ray s testimony that the prison had, and occasionally provided, receipts. Id. The panel also detailed the State s failure to present [any] evidence in support of its theory. A52. This included the failure to: (1) produce Tamara Smith or deny her existence ; (2) produce any of Diamondback s former employees to explain if and how the mail policy applied when prisoners were administratively confined ; (3) establish whether receipts were provided for outgoing legal mail ; (4) address whether prisoners at the facility would have known that they were slated to be transferred to a different prison and the scheduled date of transfer ; or (5) demonstrate whether Ray s supporting documents were fraudulent. A52. None of this evidence was presented by the State, nor were the Diamondback mail logs. Id. In light of the State s failure of proof, the panel concluded that the district court s conclusion lack[ed] an evidentiary basis. A55. One member of the panel dissented on the application of the mailbox rule, but agreed that the prison mailbox rules applies. A60. The State petitioned for rehearing en banc, but the petition failed to garner a single vote and was denied. Dkt. No. 47 (Ray v. Clements, No (7th Cir.)).

22 14 REASONS FOR DENYING THE PETITION I. The Seventh Circuit s Application of the Mailbox Rule in this Case Turned on an Interpretation of Wisconsin Law and Does Not Present a Substantial Federal Question or Any Question on which the Circuits are Divided. 1. The State asks the Court to determine whether a federal court should apply the mailbox rule to a state post-conviction motion for AEDPA tolling purposes where a state has neither accepted nor rejected the rule. Pet at 1-2, 7. That is not, however, the question on which the decision below turned. Far from adopting the federal mailbox rule in the face of uncertain state law, the Seventh Circuit here carefully examined Wisconsin law and found it clear that Wisconsin has fully embraced the Houston mailbox rule. A25. The Seventh Circuit s choice to apply the mailbox rule was a straightforward application of Wisconsin law. That is why the State s petition goes to great lengths to argue that the Seventh Circuit has misinterpreted Wisconsin law. Pet. at But the question of whether Wisconsin fully embraces the mailbox rule in cases like this one is not a federal question, much less a substantial one worthy of this Court s review. Nor is it a question on which the circuits are or conceivably ever will be divided. It does not warrant certiorari. 2. In any event, the Seventh Circuit correctly interpreted Wisconsin law. Wisconsin has embraced the mailbox rule in every major instance

23 15 where it has imposed a deadline on pro se prisoners. The Wisconsin courts could hardly endorse the mailbox rule more clearly: Courts in several other states have elected to follow Houstonacknowledging, as we do today, that it does not announce a rule of federal constitutional law, but concluding that its rationale is persuasive because state inmates face obstacles identical to those that led the Houston court to adopt the prison mailbox rule. Today, we join those courts. State ex rel. Shimkus v. Sondalle, 620 N.W.2d 409, 413 (Wis. Ct. App. 2000); see also, e.g., State ex rel. Nichols v. Litscher, 635 N.W.2d 292, 298 (Wis. 2001) ( We are persuaded by the rationale in Houston and by the approach in Shimkus... [a]ccordingly, we apply a similar tolling rule to pre so prisoners who file petitions for review in this court. ); State ex rel. Kelley v. State, 661 N.W.2d 854, 856 (Wis. Ct. App. 2003) ( When pro se prisoners seek to file petitions, their control over the filing process is circumscribed by prison rules and procedures. Pro se prisoners choice in method of filing is no choice at all. They must rely on the vagaries of the mail.... We discern no convincing reason why pro se prisoners who act more promptly and otherwise comply with filing requirements should be placed at a disadvantage. )

24 16 (citation omitted). 4 Indeed, in following the federal mailbox rule, Wisconsin courts see no real difference between a prisoner in the federal system and a Wisconsin prisoner, as both must depend on prison officials to ensure a timely filing. Sondalle, 620 N.W.2d at 413. Based on these unequivocal decisions from Wisconsin courts, the Seventh Circuit had ample reason to conclude that Wisconsin has fully embraced the mailbox rule, and that Wisconsin law compelled application of the rule to Mr. Ray s post-conviction motion. Contrary to the Seventh Circuit s finding, the State speculates that Wisconsin would not apply the mailbox rule in Mr. Ray s case because Wisconsin has no deadline for filing post-conviction motions, obviating any need to have a mailbox rule for such motions. Pet. at 16. This argument makes no sense. By declining to impose any deadline on postconviction motions, Wisconsin has chosen to be more lenient with those filings than even the mailbox rule would allow. After all, a Wisconsin prisoner who discovers that a court has not received his postconviction motion can simply re-file the motion at any time. Under these circumstances, it is absurd to 4 The State cites In re Marriage of Meyer, 775 N.W.2d 123 (Wis. Ct. App. 2009) to argue that a motion is not filed if the court clerk never receives it. Pet. at 17. However, as its title suggests, this case has nothing to do with pro se prisoners nor with the mailbox rule it held that a commitment order arising out of an individual s failure to pay child support, requested in an affidavit by a case specialist with a child support agency, was invalid when it was written by a nonattorney and provided directly to the court, rather than to the clerk of the court. In re Marriage of Meyer has no conceivable bearing on the case at hand.

25 17 assume that Wisconsin would not apply [the mailbox] rule were it asked to do so. Pet. at 15. The Seventh Circuit was right to find that interpretation of Wisconsin law implausible. Although the absence of a filing deadline gives Wisconsin courts no need to apply the mailbox rule in the ordinary case, the Wisconsin courts have been clear that the mailbox rule should be applied whenever it is needed. The absence of a deadline in Wisconsin is thus no reason not to apply the mailbox rule when federal law imposes its own deadline and thereby makes the mailbox rule necessary. All of the concerns that were outlined in Houston and Nichols apply with equal force to pro se prisoner filings not subject to a time requirement. A Only if the Court disagreed with the Seventh Circuit s interpretation of state law and found that Wisconsin has not fully embraced the mailbox rule would the Court need to decide the question the State seeks to present: what to do when a state neither accepts nor rejects the rule. Here, the State seizes on the Seventh Circuit s suggestion that the mailbox rule should apply unless a state clearly rejects it. Pet. at 11; A24. That presumption in favor of the mailbox rule is dicta in light of the Seventh Circuit s express finding that Wisconsin has fully embraced the rule. But it nevertheless accords with every other circuit that has considered the question. When other circuits apply the mailbox rule, they do so because the relevant state either clearly endorsed it or at least did not clearly reject it. See, e.g., Causey v. Cain, 450 F.3d 601, (5th Cir. 2006) (applying the mailbox rule to Louisiana

26 18 petitions where Louisiana consistently applied the mailbox rule); Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009) (where Louisiana had adopted the holding and reasoning of Houston v. Lack for other pro se prisoner filings, the Fifth Circuit presumed that Louisiana courts would extend the Houston rule to the facts of this case ); Taylor v. Williams, 528 F.3d 847, 850 (11th Cir. 2008) (Eleventh Circuit applied the mailbox rule to a pro se prisoner s state habeas petition, even though the particular question... ha[d] not been addressed by the Georgia courts, because Georgia had adopted the rule for at least one form of pro se prisoner appeal.); George v. Smith, No. 05-C-0403-C, 2006 WL , at *6 (W.D. Wis. Dec. 12, 2006) (applying the mailbox rule to a prisoner s grievance appeal because decisions indicate strongly that Wisconsin courts considering the question at issue here would calculate the timeliness of a prisoner s appeal from the time it is placed in the mail ), aff d, 507 F.3d 605 (7th Cir. 2007). In contrast, when other circuits decline to apply the mailbox rule, they do so where the relevant state has clearly and expressly rejected it. Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003) (declining to apply mailbox rule where the Ohio Supreme Court expressly rejected the rule); Adams v. LeMaster, 223 F.3d 1177, (10th Cir. 2000) (declining to follow the mailbox rule where New Mexico s rules require, at the very least, receipt by the clerk before a petition is filed ), cert. denied, 531 U.S (2001); Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (declining to apply the mailbox rule where Texas courts had directly rejected it), cert. denied, 529 U.S (2000); Causey, 450 F.3d

27 19 at 605 ( Coleman is best understood as an interpretation of Texas law. ). Thus, all of the circuits are in accord with the presumption that the mailbox rule should apply unless a state has clearly rejected it. No circuit has ever deemed state law unclear, and on that basis, declined to apply the mailbox rule. The Seventh Circuit s dicta therefore creates no circuit split for the Court to resolve. The only genuine conflict between the circuits is about what to do when a state has clearly rejected the mailbox rule. The Second Circuit would apply the federal mailbox rule to toll AEDPA s statute of limitations regardless of the state s rejection of the rule, while the Ninth Circuit would follow the state. Compare Fernandez v. Artuz, 402 F.3d 111, (2d Cir. 2005), cert. denied, 546 U.S. 816 (2005), with Koerner v. Grigas, 328 F.3d 1039, 1043 n.1 (9th Cir. 2003). However, that question is not even presented here because Wisconsin has not rejected the mailbox rule. If this Court wishes to resolve this split something that it has thus far declined to do it should wait for a different case that squarely presents the issue. In sum, the Seventh Circuit s decision to apply the mailbox rule here was based on a careful and correct interpretation of Wisconsin law. The State asks this Court to second-guess the Seventh Circuit s interpretation of Wisconsin law so that it can reach a federal question about what to do when a state s embrace of the mailbox rule is uncertain. But this case is simply an inappropriate vehicle for resolving

28 20 that question and it is a question, in any event, on which there is no circuit conflict. II. The Seventh Circuit s Adoption of the Same Burden-Shifting Framework Employed by Other Circuits Does Not Warrant Certiorari. In addition to claiming that the mailbox rule should not apply, the State also contends that, if it does apply, the pro se prisoner should assume the entire burden of proving that his filing was given to prison officials. The Seventh Circuit, however, rightly joined the Fifth, Ninth, and Eleventh Circuits in rejecting that onerous position. And contrary to the State s suggestion, there is no circuit conflict. No circuit has adopted the State s position. The Seventh Circuit recognized that many courts have employed a burden shifting framework when administering the mailbox rule. A33. Under this framework, the prisoner bears the initial burden of identifying (by a sworn declaration in compliance with Fed. R. App. P. 4(c)) the who, what, when, where, how, and why of his timely delivery to a prison official. A43. He must also provid[e] some additional corroborative evidence. Id. But [o]nce the petitioner makes this evidentiary showing,... the burden shifts to the state to prove that the federal habeas petition is untimely. 5 Id. 5 Indeed, the Seventh Circuit s corroborating evidence requirement provides verifiable evidence specific to the prisoner s actual filing. This evidentiary requirement will actually make it easier for the state to confirm or refute that a prisoner s filing was made and as such the decision will actually help avoid a flood of prisoner litigation. A41 A43.

29 21 The Seventh Circuit observed that [t]he Fifth, Ninth, and Eleventh Circuits have each confronted this issue in the context of filings that are never received by the court, as was the case here, and [n]ot one has abandoned the burden shifting framework under similar circumstances. A34. The Seventh Circuit did nothing more revolutionary here than follow their lead. Id. Remarkably, the State argues that this burden-shifting framework conflicts with decisions of the Ninth and Eleventh Circuits without addressing the decisions of those very circuits whose lead the court below decided to follow. Pet. at Far from placing the burden on the prisoner (Pet. at 20-21), the Ninth Circuit applies the same burdenshifting framework the Seventh Circuit adopted here. The Ninth Circuit explained in Caldwell v. Amend that once a pro se prisoner attests to handing his filing to prison officials in a sworn declaration, such a declaration shifts to the opposing party the burden of producing evidence in support of a contrary factual finding. Caldwell v. Amend, 30 F.3d 1199, 1203 (9th Cir. 1994). The Eleventh Circuit applies the same rule, explaining in Allen v. Culliver that the burden of proof should be placed upon the state if Allen has satisfied the requirement of Fed. R. App. P. 4(c)(1) by providing a sworn declaration. Allen v. Culliver, 471 F.3d 1196, 1198 (11th Cir. 2006). Rather than addressing the decisions actually relied upon by the court below, the State clutches at inapposite decisions from the Ninth and Eleventh Circuits and attempts to show that the Seventh

30 22 Circuit s decision conflicts with them. 6 Pet. at The State first claims a conflict with Zepeda v. Walker, 581 F.3d 1013 (9th Cir. 2009), in which a prisoner bore the burden of demonstrating tolling. But Zepeda did not involve a pro se prisoner; it involved an attorney who filed a defective habeas petition. Zepeda thus did not implicate the prison mailbox rule and certainly did nothing to undermine the Ninth Circuit s prior decision in Caldwell applying a burden-shifting framework to pro se petitions. The State also claims a conflict with the Eleventh Circuit s decision in Webster v. Moore, 199 F.3d 1256 (11th Cir.), cert. denied, 531 U.S. 991 (2000). But that decision did not implicate the mailbox rule; there was no debate as to when the prisoner filed a post-conviction motion, and the outcome was not affected by his delivery of the motion to any prison official. Id. at Webster therefore does nothing to undermine the Eleventh Circuit s later decision in Allen which clearly adopted a burden-shifting framework to determine 6 Other decisions cited by the State are similarly irrelevant, as they have nothing to do with either pro se prisoners or the mailbox rule. Pet. at 23-24; see Payne v. Comm r of Internal Revenue, 224 F.3d 415, 420 (5th Cir. 2000) (holding that the government bears the burden of proving an exception to the statute of limitations on tax assessment); Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401, 406 (6th Cir. 1999) (holding that the party seeking to avoid the statute of limitations for the Robinson-Patman Act bears the burden of showing it does not apply), cert. denied, 529 U.S (2000); Knox v. Cook County Sheriff s Police Dep t, 866 F.2d 905, 907 (7th Cir. 1988) (holding plaintiff had the burden of establishing an exception to statute of limitations for his 42 U.S.C claim, where mailbox rule was not at issue).

31 23 the date of a pro se prisoner s filing under the mailbox rule. Regardless of who bears the burden of proof in other circumstances, both the Ninth and Eleventh Circuits (along with the Fifth, and now the Seventh Circuits) have recognized that pro se prisoners face unique challenges that warrant a burden-shifting framework. As the Seventh Circuit explained, the State has control over the prison mail policies, control over prisoner mail, and control over the prisoner himself. A40. Prisoners are entirely at the mercy of prison officials at all times. Thus, [t]here can be no doubt that the state is in a better position to show that a prisoner did not give his petition to a prison official for mailing than the prisoner is in to prove that he did. A38. Indeed, as this Court recognized when it first adopted the mailbox rule, [t]he prison will be the only party with access to at least some of the evidence needed to resolve such questions. Houston, 487 U.S. at 276 (emphasis added). The burden-shifting framework recognizes these realities and follows the familiar principle that the burden of proof should usually be placed on the party in the best position to prove its case. A33; see Int l Bhd. of Teamsters v. United States, 431 U.S. 324, 359 n.45 (1977) (noting that burden-shifting presumptions often reflect a party s superior access to the proof ). Because prison officials have superior access to proof about their own actions, it is entirely reasonable to shift the burden to them once a prisoner has provided a sworn declaration and some other evidence indicating that a filing was given to prison officials for mailing. All circuits that have reached the question are in unanimous agreement on this point.

32 24 The State nevertheless claims that the decision below conflicts with other decisions requiring a prisoner to show diligence in investigating the status of his filing, even after it has been given to prison officials for mailing. Pet. at But only the Ninth Circuit has adopted this diligence requirement. See Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001) (requiring prisoner to follow-up once he has failed to receive a disposition from the court after a reasonable period of time ). Although the State also cites a decision of the Fifth Circuit, that decision held only that a lack of diligence could serve as strong evidence that the petition was, in fact, never sent. Stoot, 570 F.3d at 672. This use of diligence as circumstantial evidence of filing, rather than as an independent requirement, does not conflict with the decision below. It is therefore only the Ninth Circuit that has adopted a strict diligence requirement. And the Seventh Circuit s choice to join other circuits in rejecting that requirement does not warrant certiorari. In the twelve years since the Ninth Circuit announced its diligence requirement in Huizar, no other circuit has joined it. Nor has the Ninth Circuit fleshed out the nature of the diligence that it requires. This is not a deep or mature circuit conflict and does not warrant certiorari. Moreover, this case is a poor vehicle for resolving any such conflict because the evidence shows that Mr. Ray was in fact quite diligent here. Mr. Ray submitted his motion to a social worker for filing on April 27, A7. He wrote her a letter 35 days later to verify that she sent his motion to the

33 25 court. Id. He sent her a second letter 100 days after that. Id. Fourteen months after filing, he wrote her a third letter, requesting the same information. Id. Finally, after never hearing back, he sent a notarized letter to the Milwaukee clerk of court on October 4, 2006 to determine the status of his motion. Id. Then, immediately after learning that the court had no record of the motion, he filed a supplemental pro se motion with the court. Id. This is hardly a lack of diligence, and it suggests that the outcome of this case would have been the same even if it were decided by the Ninth Circuit. See Huizar, 273 F.3d at 1224 (finding that as a matter of law twenty-one months is not an unusually long time to wait for a court s decision ). Because the outcome here would likely be the same with or without a diligence requirement, this case presents no sharp circuit conflict warranting review by this Court. III. Certiorari Is Not Warranted to Review the Seventh Circuit s Conclusion that the District Court s Factual Findings were Clearly Erroneous. In addition to raising legal issues on which there is no substantial federal question or significant circuit conflict, the State also asks this Court to grant certiorari to further review the district court s factual findings. Pet. at But the review of factual findings typically does not warrant certiorari, and it certainly does not warrant certiorari here because the Seventh Circuit had ample reason to find that the district court committed clear error. Although the district court found that Mr. Ray did not hand Ms. Smith his motion for filing on April

34 26 27, 2004, the Seventh Circuit correctly concluded under the proper standard of review that the district court s finding was clearly erroneous. Holleman v. Cotton, 301 F.3d 737, (7th Cir. 2002) ( A factual finding is clearly erroneous when, after reviewing the complete record, we are left with a definite and firm conviction that a mistake has been committed. ) (internal citation and quotations omitted), cert. denied, 540 U.S. 827 (2003). After a careful review of the record, the Seventh Circuit found that Mr. Ray presented extensive and uncontroverted evidentiary support for his claims, including the following: Mr. Ray s sworn declaration describing the who, what, when, where, how, and why of when he timely gave his motion to prison officials for filing. A43; see also App-1 App- 6. Mr. Ray s testimony in open court, confirming the events described in his declaration. SA- 055 SA-078. Copies of the letters Mr. Ray sent Ms. Smith on June 1, 2004, September 9, 2004, June 15, 2005, and November 1, 2006, inquiring about his April 27, 2004 motion. SA-135, SA-137, SA-139. A copy of the Certificate of Service by mail receipt that Ms. Smith pulled from a cabinet in the social worker s office and gave Mr. Ray to sign after he gave her his motion. SA-133.

35 27 A Disbursement Request form and a Photocopy Request form demonstrating that Ms. Smith signed the CCA Privileged Correspondence Receipt and gave it to Mr. Ray after he gave her his motion. SA-143, SA Testimony of Officer Nedbal and Ms. Martin confirming that the prison required inmates to detail what they wanted copied, and not just the number of copies or their preferences regarding the copies, confirming that prison officials believed the copies were made and lost, and confirming that there was nothing suspicious about the copying request or materials. SA-015 SA-048. A notarized letter from Mr. Ray to the Milwaukee clerk of court seeking to determine the status of his motion, dated October 4, SA-141. As the Seventh Circuit explained, Ray s sworn declaration, live testimony, documentary evidence, and corroborating witnesses were more than sufficient to shift the burden of proving untimeliness to the state. A49. Unlike Mr. Ray, the State presented no relevant documentary evidence or witness testimony, despite its superior access to witnesses, documents and other information bearing on Mr. Ray s claims. The State could have located and produced its contractor employee, Ms. Tamara Smith, to either support or refute Mr. Ray s testimony that he delivered his petition to her on April 27, If Mr. Ray fabricated his story, as the State alleged, it would

36 28 have been easy for the State to disprove it with testimony from Tamara Smith. But the State made no effort to do so. The State could have also sought to contradict Mr. Ray s testimony with myriad other evidence at its disposal, including: (1) Ms. Smith s employment status and records about whether she was working at Diamondback on April 27, 2004; (2) a copy of Diamondback s mail log and accompanying testimony from a CCA official about how the mail log was kept and whether Mr. Ray s post-conviction motion was recorded in the log; (3) testimony, policy documents, s, or other documents detailing how Diamondback implemented its administrative confinement procedures; (4) testimony regarding or copies of the CCA receipts used for prisoner mail and/or an evaluation of the receipt in the record; or (5) some form of circumstantial evidence such as copies of other CCA receipts or testimony from CCA officials about CCA procedures in general that might have suggested that Mr. Ray s affidavit and documentary evidence were false. Remarkably, the State failed to introduce any of this information. Perhaps the State discovered that this information in fact corroborated Mr. Ray s story, or perhaps the State never bothered to seek it out. But the result was an utter failure of proof by the State. Instead, two-thirds of the State s evidence at the evidentiary hearing focused on the tangential issue of whether Mr. Ray could have purchased stamps before sending a June 2004 letter to Ms. Smith to follow-up on his petition. SA-050 SA-053, SA-182 SA-184. The State s evidence on this issue was not at all persuasive, as the State s sole witness

37 29 conceded on cross-examination that Mr. Ray could have acquired stamps in many other ways. SA-052 SA-053. The State s remaining evidence was a policy statement from Diamondback regarding its mail procedures that did not address what occurred during periods of administrative confinement. SA- 185 SA-195. Moreover, the State did not present any witnesses that could explain the Diamondback policy document, nor did the State present any witnesses who had direct contact with Mr. Ray at Diamondback and who could address CCA s policies and procedures. SA-111. On this record, the district court s factual findings did not survive close scrutiny. For example, the district court found it unbelievable that Mr. Ray would give an Oklahoma social worker a document to be mailed to Wisconsin when he knew that he would be transferred to Wisconsin three days later. But this argument makes no sense. First, it is well established that as a security precaution, prisoners are never told when they are being moved. 7 There is no evidence that Mr. Ray knew he was going to be moved a few days after providing Ms. Smith with his petition. Of course, even if a prisoner did know of his impending transfer, it would be irrational for him to pack a motion, ready to be filed, into his belongings, hoping that it would separately make it to his cell in Wisconsin, just so that he could mail it through a Wisconsin branch of the postal system. This would inevitably delay 7 See Oklahoma DOC Security policy OP , available at

38 30 filing, while providing the prisoner with no conceivable benefit. Yet, the district court and the State relied in part on this fact to conclude that Mr. Ray lacked credibility. The Seventh Circuit was right to find this conclusion clearly erroneous. 8 The district court and the State expressed nearly identical doubts about the follow-up letters Mr. Ray sent to Diamondback. A46. For example, both the district court and the State wondered why the letters that Mr. Ray sent to Diamondback were not notarize[d] or not retrieved from [his] prison file. SA-093, SA-103. These questions were meant to support the State s claim that it did not find Mr. Ray s submissions credible because they lacked independent corroboration. SA-113. But prisoners are ill-equipped to provide such independent corroboration especially when it is the prison that sets the rules and regulations for how documents are provided and processed. In this case, Mr. Ray explained everything that he could about the documents in the record. He testified and provided undisputed documentary evidence that showed that none of the letters sent to Ms. Smith could have been in his prison file and that the letters could not have been notarized per prison policy. SA-093, SA-103 SA-104, SA-169, SA-173. The State remained in the best position to provide independent corroboration by presenting Ms. Smith, the social worker to whom 8 The Seventh Circuit correctly observed that in assessing Mr. Ray s credibility, the district court made no finding concerning Ray s demeanor or presentation. A44. Rather, the district court s credibility finding was based entirely on a string of speculative doubts, none of which were based on any competent contradictory evidence presented by the state. A44 A45.