Supreme Court of the United States

Transcription

1 No. In The Supreme Court of the United States MARC CLEMENTS, v. ELLIOT DON RAY, Petitioner, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit PETITION FOR A WRIT OF CERTIORARI J.B. VAN HOLLEN Wisconsin Attorney General KATHERINE D. LLOYD Assistant Attorney General JEFFREY J. KASSEL* Assistant Attorney General P. O. Box 7857 Madison, WI (608) kasseljj@doj.state.wi.us Attorneys for Petitioner *Counsel of Record

2 ii QUESTIONS PRESENTED The Antiterrorism and Effective Death Penalty Act ( AEDPA ), 28 U.S.C. 2244(d)(1)(A), dictates a state prisoner file his federal habeas corpus petition within one-year of the date his judgment became final. The time during which a properly filed application for State post-conviction or other collateral review... shall not be counted toward this one-year period. 28 U.S.C. 2244(d)(2). The questions presented are: 1. To determine when a state application for post-conviction relief has been properly filed for purposes of tolling under 28 U.S.C. 2244(d)(2), does the federal mailbox rule apply unless the state court has clearly rejected the rule (as the court below held), or does state law determine when the application was properly filed (as the majority of circuits have held)? 2. When tolling under 28 U.S.C. 2244(d)(2) is at issue, does the state bear the burden to show the prisoner did not properly file a state post-conviction motion (as the court below held), or does the prisoner bear the burden to show he is entitled to tolling (as the Ninth and Eleventh Circuits have held)? 3. Did the Seventh Circuit exceed the scope of its limited appellate authority by substituting its judgment for the district court s when it refused to accept the lower court s credibility determinations?

3 iii TABLE OF CONTENTS Page QUESTIONS PRESENTED... ii OPINIONS BELOW... 1 JURISDICTION... 1 RELEVANT STATUTORY PROVISIONS... 1 STATEMENT OF THE CASE... 2 REASONS FOR GRANTING THE PETITION... 7 A. This Court should grant certiorari to resolve whether a state application for post-conviction relief is subject to the federal mailbox rule for AEDPA tolling purposes when the state does not apply the mailbox rule to such applications State law should control when a prisoner s state post-conviction motion is filed for purposes of 28 U.S.C. 2244(d)(2) Contrary to the Seventh Circuit s decision, Wisconsin does not apply the mailbox rule to post-conviction motions

4 iv 3. Because Wisconsin would not have considered the never-received motion filed, it was not properly filed under 28 U.S.C. 2244(d)(2) The Seventh Circuit s application of the mailbox rule opens the door to abuse of the one-year period of limitations B. This Court should grant certiorari to resolve who bears the burden of proving that a prisoner properly filed a state application for post-conviction review that tolled the AEDPA limitations period The majority decision is in conflict with the Ninth, Fifth and Eleventh Circuits a. The Ninth and Eleventh Circuits place the burden on the prisoner to show statutory tolling is warranted b. The Fifth and Ninth Circuits require the prisoner to establish his diligence in investigating the status of his filing to benefit from tolling The majority decision is erroneous

5 v 3. The issue of which party bears the burden is a recurring issue that is often dispositive C. This Court should grant certiorari review because the Seventh Circuit exceeded the scope of its limited appellate authority in substituting its factual findings for those of the district court CONCLUSION... 33

6 vi INDEX TO APPENDIX Case No , United States Court of Appeals for the Seventh Circuit Final Opinion, dated November 19, A1-A110 Elliot D. Ray v. Marc Clements, Case No , United States Court of Appeals for the Seventh Circuit Final Judgment, dated November 19, A111-A112 Elliot D. Ray v. Marc Clements, Case No , United States Court of Appeals for the Seventh Circuit Order denying rehearing, dated December 20, A113-A114 Elliot D. Ray v. William Pollard, Case No. 07-C-190, United States District Court, Eastern District of Wisconsin Decision and Order, dated August 23, A115-A138 State of Wisconsin v. Elliot D. Ray, Case No. 2002AP0791-CR, Wisconsin Court of Appeals, District I Decision, dated January 28, A139-A147

7 vii TABLE OF AUTHORITIES Cases Adams v. LeMaster, 223 F.3d 1171 (10th Cir. 2000) Allen v. Culliver, 471 F.3d 1196 (11th Cir. 2006)... 26, 27 Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000) Bloedorn v. Francisco Foods, Inc., 276 F.3d 270 (7th Cir. 2001) Causey v. Cain, 450 F.3d 601 (5th Cir. 2006) Dowell v. Indiana, 922 N.E.2d 605 (Ind. 2010)... 9 Fernandez v. Artuz, 402 F.3d 111 (2nd Cir. 2005) Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401 (6th Cir. 1999) Herbert v. Dickhaut, 695 F.3d 105 (1st Cir. 2012) Houston v. Lack, 487 U.S. 266 (1988)... 16

8 viii Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001)... 22, 26, 27 In re the Marriage of Meyer v. Teasdale, 2009 WI App 152, 321 Wis. 2d 647, 775 N.W.2d International Bros. of Teamsters v. United States, 431 U.S. 324 (1977) Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80 (3rd Cir. 2013) Knox v. Cook County Sheriff's Police Dep't, 866 F.2d 905 (7th Cir. 1988) Koerner v. Gridgas, 328 F.3d 1039 (9th Cir. 2003) La Fournier v. State, 91 Wis. 2d 61, 280 N.W.2d 746 (1979) Mannix v. Phillips, 619 F.3d 187 (2nd Cir. 2010) Pace v. DiGuglielmo, 544 U.S. 408 (2005)... 10, 18 Payne v. C.I.R., 224 F.3d 415 (5th Cir. 2000)... 23

9 ix Pinkston v. Madry, 440 F.3d 879 (7th Cir. 2006) Ray v. Boatwright, 592 F.3d 793 (7th Cir. 2010)... 1 Ray v. Clements, 700 F.3d 993 (7th Cir. 2012)... 1 Richards v. Thaler, F.3d (5th Cir. 2013) Smith v. Commissioner, Alabama Dept. of Corrections, 703 F.2d 1266 (11th Cir. 2012) State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d , Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009)...10, 23, 26, 27 Thompson v. Florida, 761 So.2d 324 (Fla. 2000)... 9, 24 Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003) Webster v. Moore, 199 F.3d 1256 (11th Cir. 2000)... 11, 21

10 x Zepeda v. Walker, 581 F.3d 1013 (9th Cir. 2009)... 20, 21 Statutes 28 U.S.C. 1254(1) U.S.C. 2244(d)(1) U.S.C. 2244(d)(2) , 17-19, 21, 22, 25 Wis. Stat Wis. Stat (1) Wis. Stat Wis. Stat (3) Wis. Stat (3)(c) Wis. Stat (3)(e) Wis. Stat , 8-10, 13-16, 28 Wis. Stat (1) Wis. Stat (2)... 9, 16, 17 Wis. Stat (6) Rules Fed. R. App. P. 4(c)... 10

11 xi Other Authorities 1 D. Wilkes, State Postconviction Remedies and Relief Handbook, 1:6 ( )

12 Petitioner Marc Clements, Warden of Fox Lake Correctional Institution in Fox Lake, Wisconsin, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. OPINIONS BELOW The opinion of the court of appeals is reported as Ray v. Clements, 700 F.3d 993 (7th Cir. 2012). A1- A110. The previous opinion of the court of appeals is reported as Ray v. Boatwright, 592 F.3d 793 (7th Cir. 2010). The opinion of the district court is unreported. A-115-A138. The decision of the Wisconsin Court of Appeals is unreported. A139-A147. JURISDICTION The court of appeals entered its decision and final judgment on November 19, A1-A112. On December 20, 2012, the court denied the timely petition for rehearing and rehearing en banc. A Petitioner invokes this Court s jurisdiction under 28 U.S.C. 1254(1). RELEVANT STATUTORY PROVISIONS The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides, A 1-year period of limitation shall apply to an application for a writ

13 2 of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitations 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;.... The time during which a properly filed application for State postconviction 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 subsection. 28 U.S.C. 2244(d)(1) and (d)(2). STATEMENT OF THE CASE Following a 2001 jury trial, Elliot Ray was convicted of first-degree reckless homicide for the killing of an eleven-year old girl. A140. Ray appealed, arguing, among other things, that his Confrontation Clause rights were violated when statements of his non-testifying co-actors were admitted at trial. A141. Because Ray had not objected to the testimony at trial, the Wisconsin

14 3 Court of Appeals reviewed Ray s claim for plain error. A141-A144. Finding the statements had not been admitted for their truth, and instead had been admitted to show Ray s reaction to hearing the statements, the state court found Ray had not established plain error. A144. Ray petitioned the Wisconsin Supreme Court for review, but the court denied review in June A116. In February 2007, Ray filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin, which was dismissed. A115. The Seventh Circuit reversed finding Ray s Confrontation Clause rights had been violated, but remanded the case for a determination of timeliness. A2. It was undisputed that Ray s conviction had become final in September 2003, and Ray did not file his federal petition until February 2007, well outside the one-year AEDPA limitations period. A115-A116, A22. Ray argued, though, that he was entitled to the mailbox rule and, hence, statutory tolling under 28 U.S.C. 2244(d)(2) because he gave a state postconviction motion to a prison official for mailing in April A116. This motion has never been received by the state court. A118. The state argued it was of no import when Ray stated he gave the postconviction motion to prison authorities because, under state law, the motion would be properly filed only when it was received by the court. The district court disagreed with the state, but held an evidentiary hearing to determine whether Ray had

15 4 attempted to apply for post-conviction relief in April A116. At the hearing, Ray testified that he had given a post-conviction motion pursuant to Wis. Stat to a social worker in an Oklahoma prison in April A117. The district court did not believe Ray. A128. The court found that if Ray had given a post-conviction motion to the Oklahoma prison social worker in April 2004, just days before his transfer back to Wisconsin, he would not have waited almost two and a half years before making any contact with the state court. A128. The district court stated, At the very least, [Ray] would have had to contact the court to let it know of the facility to which he had been transferred. A128. The court found numerous other problems with Ray s story, including the physical evidence Ray submitted in support of his contention. A128-A132. The court stated the evidence Ray submitted that purported to be from the Oklahoma prison looked more like the work product of a prisoner than a prison administration. A132. After reviewing all of the evidence in the case, including Ray s testimony, the district court found that Ray s version of the events concerning the filing of his state motion for post-conviction relief is not credible. A137. The district court concluded Ray had not given a post-conviction motion to a prison official for mailing in A137. Because Ray could not show he had properly filed a post-conviction motion during the one-year period of limitations, Ray was not entitled to tolling under 28 U.S.C. 2244(d)(2) and his federal petition was untimely

16 5 filed. A137. The district court dismissed the petition. A137. The Seventh Circuit reversed. A112. All three judges on the panel found that although the postconviction motion has never been received by the state court, the federal mailbox rule determines when the state post-conviction motion was properly filed for purposes of 28 U.S.C. 2244(d)(2) unless the state court has clearly rejected the rule. A24- A29, A60. Further, the majority decision found the burden to show a prisoner is not entitled to tolling under 2244(d)(2) rests with the state. The majority acknowledged that while the burden to prove equitable tolling is on the prisoner, a statutory tolling inquiry is one step removed from equitable tolling. A31. The majority reasoned that the state is in the best position to prove that the limitations period has run. A33. Because of this, the majority concluded that a burden shifting framework should be employed in cases in which statutory tolling is at issue. A33-A43. The majority found that a prisoner who argues statutory tolling applies to his state post-conviction motion when that motion was never received by the state court must submit a sworn statement and some evidence to support his claim that he gave his motion to prison officials, but once he satisfies this evidentiary showing, the burden shifts to the state to disprove it. A42-A43. The majority decision then found the state failed to carry its burden to show Ray did not place a post-conviction motion in the hands of an Oklahoma

17 6 prison official in A54. The majority decision stated that the district court s finding that Ray had concocted an elaborate scheme to defraud the court and subvert AEDPA s limitations period... lacks an evidentiary basis. A54-A55. The majority stated the district court made a mistake and that the lower court s factual findings are clearly erroneous. A55. The court concluded that because the state failed to provide proof that Ray did not give a postconviction motion to a state prison official in 2004, Ray was entitled to more than two years of statutory tolling under 28 U.S.C. 2244(d)(2) and his federal petition was timely filed. A54-A57. In a lengthy dissent, Judge Manion disagreed with the majority decision in three ways. A57-A110. First, Judge Manion disagreed that the state should bear the burden to prove statutory tolling does not apply to a state post-conviction motion. A60. Second, Judge Manion disagreed with the majority decision that the district court placed the burden on Ray; Judge Manion stated the district court did in fact place the burden of proof on the state. A60. Third, Judge Manion stated that regardless of which party bore the burden of proof, the district court s conclusion that Ray concocted his story was wellsupported by the record and this factual finding was not clear error. A60-A99 ( [T]he record is even more damning than what the district court found. ). Judge Manion stated the majority s emphasis on the state s lack of direct evidence was misplaced. A66. Judge Manion noted the state was not required

18 7 to present direct evidence in order to show Ray s story was incredible and implausible. A66. Judge Manion stated the district court detailed a substantial number of the inconsistencies and implausibilities in Ray s testimony and his evidence. A69. Judge Manion criticized the majority s decision for misunderstanding the record. A79. Judge Manion noted the evidence amply supported the inference that Ray had manufactured evidence in order to support his claim. A82-A88. Judge Manion stated, [T]he totality of the evidence makes Ray s entire story utterly implausible. A86. Judge Manion labeled Ray s story absurd and utterly unbelievable. A89, A91. Judge Manion stated there was ample circumstantial evidence that Ray invented the April 27, 2004, mailing[.] A96. Judge Manion concluded the evidence overwhelmingly support[ed], perhaps even compel[led] the district court s decision Ray was not entitled to tolling under 28 U.S.C. 2244(d)(2). A99. The state petitioned the Seventh Circuit for rehearing and rehearing en banc, but the petition was denied. A113-A114. The state now petitions for certiorari review. REASONS FOR GRANTING THE PETITION This Court should grant this petition to resolve whether the federal mailbox rule applies to a state post-conviction motion when the state itself has never applied the rule to such motions and the motions are not subject to time limitations. If this

19 8 Court finds the federal mailbox rule does not apply to Wisconsin post-conviction motions filed under Wis. Stat either because Wisconsin does not apply the mailbox rule to these motions or because the mailbox rule is inapplicable to pleadings not subject to time limitations then the Seventh Circuit decision must be reversed and this Court need not reach the second and third issues the state presents in this petition. If this Court either declines to address the mailbox rule question or concludes the federal rule applies to state post-conviction motions for AEDPA tolling purposes, then this Court should resolve a circuit split on which party bears the burden of establishing tolling does or does not apply under 28 U.S.C. 2244(d)(2). If this Court determines it is the prisoner s burden to establish he properly filed an application for state post-conviction relief when that motion has never been received by the state court and is entitled to tolling, this Court should remand this case to the Seventh Circuit to assess Ray s contention in light of the correct burden. Should this occur, this Court need not reach the third issue the state presents in this petition. Finally, this Court should grant the petition because the Seventh Circuit s decision improperly usurped the role of the district court as factfinder and substituted its credibility findings for the lower court s conclusions.

20 9 A. This Court should grant certiorari to resolve whether a state application for post-conviction relief is subject to the federal mailbox rule for AEDPA tolling purposes when the state does not apply the mailbox rule to such applications. Under AEDPA, a state application for postconviction relief tolls the limitations period only when it is both properly filed and pending. 28 U.S.C. 2244(d)(2). Generally, when a state has imposed a filing deadline on a post-conviction motion, the state has a specific rule to determine when a pro se prisoner s motion is filed. In some states the motion is timely filed when it is given to prison officials for mailing. See Thompson v. Florida, 761 So. 2d 324, 325 (Fla. 2000). In other states, the motion is filed when it is received by the court. See Dowell v. Indiana, 922 N.E.2d 605, 609 (Ind. 2010). The motion at issue in this case, however, was not subject to a filing deadline. See Wis. Stat (2) (stating the motion may be made at any time). Because a Wisconsin court would have no reason to calculate the filing date on any motion whether the motion came from a pro se prisoner or a represented one there is no express rule on when the motion is considered filed. The general rule in Wisconsin, though, is a motion is filed when it is received by the clerk. See Wis. Stat ; State ex rel. Nichols v. Litscher, 2001 WI 119, 12-13, 247 Wis. 2d 1013, 635 N.W.2d 292. Ray has argued the federal mailbox rule, which considers a pro se prisoner s pleading filed

21 10 when it is given to prison officials for mailing, should apply to his state application for post-conviction relief. See, e.g., Fed. R. App. P. 4(c). Ray argued his Wis. Stat motion should be considered filed when he allegedly gave it to a prison social worker for mailing. This petition presents the question of whether a state application for post-conviction review is subject to the mailbox rule for AEDPA tolling purposes even when the state has not adopted that rule and would have no reason to apply the rule to the post-conviction motion at issue. Certiorari review is warranted because the Seventh Circuit misapplied Wisconsin law and the decision opens the door to prisoner abuse of AEDPA s limitations period. 1. State law should control when a prisoner s state post-conviction motion is filed for purposes of 28 U.S.C. 2244(d)(2). In Pace v. DiGuglielmo, this Court stated that if a state post-conviction motion was untimely filed under state law, then it was not properly filed within the meaning of 28 U.S.C. 2244(d)(2). 544 U.S. 408 (2005). Under this reasoning, federal courts must look to state law to determine when and how a state post-conviction motion is filed. The majority of circuits to address whether to apply the federal mailbox rule to a state postconviction motion look to whether the state applies the rule. See Stoot v. Cain, 570 F.3d 669, 671 (5th

22 11 Cir. 2009) ( Because the ultimate question is whether Stoot s state petition complied with Louisiana Supreme Court procedural requirements, we defer to state law [to determine when the petition would have been considered filed] ); Causey v. Cain, 450 F.3d 601, 605 (5th Cir. 2006) ( [S]tate courts have the right to interpret state rules of filing and are not bound by Houston s construction of federal filing rules ); Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003) (declining to apply mailbox rule because Ohio had expressly rejected the rule); Adams v. LeMaster, 223 F.3d 1171, (10th Cir. 2000) (declining to apply mailbox rule to New Mexico prisoner s state court filing because it did not appear New Mexico had adopted the rule); and Webster v. Moore, 199 F.3d 1256, (11th Cir. 2000) (stating federal court must look to state law to determine when a pleading was filed). These cases held state law determines when a pleading is considered properly filed under 28 U.S.C. 2244(d)(2). Not one of these courts held, as the panel avers, that unless a state clearly rejects it, the Houston mailbox rule governs whether a state post-conviction document is properly filed under AEDPA. A24. While the above-cited cases represent the majority rule, the circuit courts are not unanimous in their approach to this issue. The Ninth Circuit has been inconsistent in its approach to the application of the federal mailbox rule to a state prisoner s state motion. In Koerner v. Gridgas, the court declined to apply the mailbox rule to a Nevada prisoner s state filing because Nevada did not recognize the rule. 328 F.3d 1039, 1043 n.1 (9th Cir.

23 ). In Anthony v. Cambra, though, the court stated the mailbox rule applies to both state and federal filings alike. 236 F.3d 568, 575 (9th Cir. 2000). The Second Circuit has explicitly stated a state court s rejection of the mailbox rule does not preclude the federal court s application of it. Fernandez v. Artuz, 402 F.3d 111, (2nd Cir. 2005). In fact, the Second Circuit expressly held the federal mailbox rule determines when a state petition is properly filed under 28 U.S.C. 2244(d)(2). Id. at 116. Here, the Seventh Circuit adopted a novel approach: [T]he prisoner mailbox rule governs whether a state post-conviction document is properly filed under the AEDPA limitations period unless the state has clearly rejected it. A2-A3. This Court should grant certioari to determine whether state law determines when a state postconviction motion is properly filed under 28 U.S.C. 2244(d)(2) (as the majority of circuits have held), whether federal law controls (as the Second Circuit has held), or whether the mailbox rule controls unless the state has clearly rejected the rule (as the court below held).

24 13 2. Contrary to the Seventh Circuit s decision, Wisconsin does not apply the mailbox rule to post-conviction motions. The panel decision stated, Because Wisconsin has not clearly rejected [the mailbox rule], the mailbox rule applies in this case. A3. The panel decision went further, though, and stated Wisconsin had fully embraced the federal mailbox rule. A25. In support of this conclusion, the court pointed to: (1) a Wisconsin statute that details how a pro se prisoner petitions the state supreme court for review; and (2) Nichols, 635 N.W.2d 292. A25. Neither this statute, Nichols, nor any other authority support the panel decision s conclusion Wisconsin has embraced the federal mailbox rule to determine when a prisoner s post-conviction motion has been filed. At issue here is when Wisconsin would consider a pro se prisoner s motion for postconviction relief under Wis. Stat filed. A motion for post-conviction relief under this statute is filed in the court in which the prisoner was convicted. Wis. Stat (1). Wisconsin Stat (3), cited by the panel as evidence Wisconsin does not require the court receive a post-conviction motion to consider it filed, is a rule of appellate procedure, which does not govern a prisoner s motion under Wis. Stat A25. Wisconsin Stat is contained in the Wisconsin statutes chapter titled, Rules of Appellate Procedure. It is found in the subsection of

25 14 that chapter titled, Miscellaneous Procedures in Court of Appeals and Supreme Court. It applies only to the filing of service and papers in the Wisconsin appellate courts. As stated, a motion made pursuant to Wis. Stat is made in the trial court. Wisconsin Stat (3)(e), also cited by the panel decision as support for Wisconsin s embrace of the mailbox rule, applies only to a pro se prisoner s petition for review in the Wisconsin Supreme Court. Wis. Stat (3)(e). A25. In addition, contrary to the panel decision s characterization, it is not a mailbox rule. A25. By the statute s very terms, it is a tolling rule. Wis. Stat (3)(e) (stating a pro se prisoner s petition for review is tolled on the date that the confined person delivers a correctly addressed petition to the proper institution authorities for mailing ). Wisconsin Stat (3)(e) codified the state supreme court s rule set forth in Nichols. Id. (Wis. Judicial Council Comm. Note, 2002). In Nichols, the supreme court addressed the timeliness of a pro se prisoner s petition for review. 635 N.W.2d. 292, 1. Although the court had received the petition one day after the applicable deadline had expired, Nichols urged the court to adopt a mailbox rule and find his petition was timely filed because he gave the petition to the prison official for mailing before the expiration of the limitations period. Id The supreme court declined Nichols request, finding Nichols approach conflicted with both the court s

26 15 prior cases and the statutory language at issue. Id. 11. Instead, the court reaffirmed the general rule that a petition for review is filed when it is received by the clerk s office, not when it is mailed. Id The court then adopted and applied a tolling rule to pro se prisoners who file petitions for review in this court. Id. 24. Under this rule, the limitations period is tolled when a pro se prisoner submits his petition to prison officials for mailing. Id There is a mailbox rule in Wisconsin, but its scope is limited. It is applicable only to a pro se prisoner s appellate brief and appendix filed in the appellate courts. Wis. Stat (3)(c) (Wis. Judicial Council Comm. Note, 2002). This statute states a pro se prisoner s appellate brief or appendix is considered timely if it is properly addressed and given to the proper institution authorities for mailing on or before the last day of the time fixed for filing. Wis. Stat (3)(c). Neither the state statutes, Nichols, nor any other authority support the lower court s finding that Wisconsin has embraced the mailbox rule to determine when a motion pursuant to Wis. Stat has been filed. In fact, the statutes and Nichols demonstrate that Wisconsin does not have such a rule and would not apply such a rule were it asked to do so. The statutes and Nichols are very specific: they apply to briefs and appendices on appeal, as well as petitions for review in the state supreme court. For briefs and appendices in the

27 16 appellate courts, pro se prisoners may avail themselves of the mailbox rule. For petitions for review in the state supreme court, pro se prisoners reap the benefit of a tolling rule. There are no such rules that apply to pro se prisoners who file a collateral attack in the state trial court. Wisconsin has carved out rules of appellate procedure to accommodate pro se prisoners unique situation. If Wisconsin had wished to adopt a mailbox rule, or a tolling rule, for pro se prisoners collateral attack motions filed under Wis. Stat , it is clear Wisconsin understands how to do so and could have done so. The absence of such a rule is as significant as the presence of one. A federal court should not impose its rules on a state s postconviction procedure. Moreover, motions under Wis. Stat face no statutory deadline. See La Fournier v. State, 91 Wis. 2d 61, 64 n.1, 280 N.W.2d 746, 747 n.1 (1979). Under the terms of the statute, a motion made pursuant to this section may be made at any time. Wis. Stat (2). Because motions can be made at any time, it follows that there is no need for a mailbox rule. None of the concerns that animated this Court s decision in Houston v. Lack, 487 U.S. 266 (1988), and the Wisconsin Supreme Court in Nichols, 635 N.W.2d. 292, 16-26, are present in a case not subject to a limitations period.

28 17 3. Because Wisconsin would not have considered the never-received motion filed, it was not properly filed under 28 U.S.C. 2244(d)(2). In Wisconsin, a Wis. Stat motion must be filed with the clerk of the circuit court of the county of conviction. See Wis. Stat (1) (setting forth civil filing rules); (2) (stating a post-conviction motion under Wis. Stat is part of the original criminal action); (6) (stating the Wis. Stat proceeding is civil in nature). Because the motion must be filed with the clerk, a motion under this statute is not filed if the clerk never receives it. See In re the Marriage of Meyer v. Teasdale, 2009 WI App 152, 10, 321 Wis. 2d 647, 775 N.W.2d 123 (vacating order because motion was improperly filed when it was given to the judge, not the clerk). Because the Milwaukee County Circuit Court never received Ray s alleged 2004 postconviction motion, it was not filed. Because it was not filed, it was not properly filed within the meaning of 28 U.S.C. 2244(d)(2) and Ray is not entitled to tolling under this section. The Seventh Circuit suggested the state s position is unfair. A27. The court stated, Accepting the state position would leave Ray without a federal forum to collaterally attack his conviction[.] A27. The state s position, though, does no such thing. First, there was no state impediment to Ray s ability to file his federal petition. It was Ray who waited more than two years after he allegedly mailed the post-conviction motion to the circuit court to inquire into its status. Ray bears the responsibility for any

29 18 seemingly unfair consequences that resulted from his failure to pursue his rights. Second, and perhaps more importantly, Ray could have filed a petition for federal habeas relief and asked the district court to stay and abey his federal petition while he pursued his state court remedies. Pace, 544 U.S. at 416. Despite the Seventh Circuit s characterization of the state s position, Ray had ample opportunity to pursue both his federal and state post-conviction remedies. 4. The Seventh Circuit s application of the mailbox rule opens the door to abuse of the one-year period of limitations. Currently, there are nineteen states that impose no statute of limitations on a prisoner s principal post-conviction motion in noncapital cases. 1 D. Wilkes, State Postconviction Remedies and Relief Handbook, 1:6 pp ( ). Under the lower court s ruling, a state prisoner s state postconviction motion filed in any of these states is now considered properly filed under 28 U.S.C. 2244(d)(2) on the date the prisoner gave the motion to the prison official for mailing (even if no such motion is ever filed with the state court). The Seventh Circuit s approach leaves the door open to state prisoners in these states who fail to file their federal habeas petition within the oneyear period of limitations to abuse the tolling provision under 28 U.S.C. 2244(d)(2). A prisoner who finds he has run afoul of the one-year limitations period could file his petition and argue it is timely. To show timeliness, he would submit an

30 19 affidavit asserting he mailed his state postconviction motion during the one-year limitations period even though the state court never received it, and request the federal court toll the limitations period and find his petition timely. This is what the Seventh Circuit has approved below. This is an impermissible end-run around the statute of limitations. B. This Court should grant certiorari to resolve who bears the burden of proving that a prisoner properly filed a state application for postconviction review that tolled the AEDPA limitations period. The majority decision found that although it made intuitive sense to place the burden on the prisoner the party seeking tolling to establish statutory tolling under 28 U.S.C. 2244(d)(2), the majority decision determined the burden actually rests on the state. A29-A43. This decision conflicts with both the Ninth and the Eleventh Circuits. This issue will continue to recur before the federal courts. This Court should grant certiorari to determine which party bears the burden to establish tolling does or does not apply under 28 U.S.C. 2244(d)(2).

31 20 1. The majority decision is in conflict with the Ninth, Fifth and Eleventh Circuits. a. The Ninth and Eleventh Circuits place the burden on the prisoner to show statutory tolling is warranted. The majority decision held, If the state raises an AEDPA statute of limitations defense, the petitioner must come forward with some evidence to support his claim that, with the benefit of the Houston mailbox rule, 365 countable days have not elapsed from the time his state court judgment became final to the time he filed his federal habeas petition. After the petitioner makes this evidentiary showing, the burden shifts to the government to prove that the limitations period has run. A34. This is in conflict with both the Ninth and Eleventh Circuits. In Zepeda v. Walker, the Ninth Circuit squarely addressed which party bears the burden to establish (or refute) the applicability of statutory tolling. 581 F.3d 1013 (9th Cir. 2009). In Zepeda, the prisoner argued the federal court should toll the AEDPA limitations period for the period of time his state habeas petition was in the state court s possession, even though [the state petition] initially

32 21 lacked the verification required by California law for proper filing. Id. at The question the court faced was when the prisoner s state petition was properly filed for purposes of 28 U.S.C. 2244(d)(2). Id. at The prisoner argued his state petition was properly filed when it was received by the state court. Id. The court rejected this argument, finding the state petition was properly filed only when it conformed to the requirements of state law. Id. at The court concluded it was the prisoner, and not the state, that bears the burden to show his petition was properly filed. Id. at The court stated, Zepeda bears the burden of demonstrating that the AEDPA limitations period was sufficiently tolled. Id. In Webster, a state prisoner sought statutory tolling under 28 U.S.C. 2244(d)(2). 199 F.3d at The court stated that in order to reap the benefit of statutory tolling, the prisoner must show both that his state post-conviction motion was properly filed and that it was pending for a sufficient period to make his federal petition timely. Id. at Because the prisoner could not show that his state petition was properly filed, he was not entitled to statutory tolling. Id. at The majority decision is in conflict with these two decisions. Whether a state postconviction motion is subject to statutory tolling under 28 U.S.C. 2244(d)(2) is a question that arises frequently in federal courts. See Richards v. Thaler, F.3d, 2013WL at **2-5 (5th Cir, Mar. 5, 2013); Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, (3rd Cir. 2013); Smith v.

33 22 Commissioner, Alabama Dept. of Corrections, 703 F.2d 1266, (11th Cir. 2012); Herbert v. Dickhaut, 695 F.3d 105, (1st Cir. 2012). This court should grant certiorari to resolve which party bears the burden of proof to warrant the application of statutory tolling. b. The Fifth and Ninth Circuits require the prisoner to establish his diligence in investigating the status of his filing to benefit from tolling. Here, the majority decision below stated a prisoner need not investigate the status of his postconviction motion in order to receive the benefit of statutory tolling. A42. In other words, a prisoner may assert he filed a state post-conviction motion, the motion is never received by the state court, the prisoner never inquires into the motion s status and still the federal court must consider the limitations period tolled under 28 U.S.C. 2244(d)(2). In favoring this approach, the majority decision rejected the diligence requirement approved of in both the Fifth and Ninth Circuits. A42. In Huizar v. Carey, the court addressed whether and how to apply the mailbox rule to a state prisoner s state habeas petition when the petition is never received by the court. 273 F.3d 1220, (9th Cir. 2001). The court found that the mailbox rule applies with equal force in such a case. Id. at The court concluded, though, that a prisoner gets the benefit of the rule so long as he diligently follows up once he has failed to receive a disposition from the court after a reasonable period of time. Id.

34 23 The Fifth Circuit approved of Huizar s approach in Stoot, 570 F.3d 669. In Stoot, the court considered whether the prison mailbox rule applies to a pleading that is delivered to prison officials for mailing but is never received by the court. 570 F.3d at 671. The court concluded that because Louisiana would apply the mailbox rule to the never-received pleading, the federal court should apply the rule. Id. In doing so, however, the court made note that there was no evidence to suggest that that in the facts of the case before it, the rule is being abused or manipulated. Id. at 672. Further, the court stated, [I]t is, of course, incumbent upon the petitioner to diligently pursue his petition. Id. The court warned, A failure to inquire into a lost petition is strong evidence that the petition was, in fact, never sent. Id. The majority decision below conflicts with these cases. This court should grant certiorari review in order to determine whether a prisoner must investigate the status of a pleading, or at least follow up with the court in a reasonable time period, in order to reap the benefit of statutory tolling. 2. The majority decision is erroneous. The general rule is that the party seeking an exception to the statute of limitations bears the burden of showing the exception applies. See Payne v. C.I.R., 224 F.3d 415, 420 (5th Cir. 2000) (stating the government bears the burden to prove an exception to the statute of limitations on tax assessment); Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401, 406 (6th Cir. 1999) (stating the party

35 24 seeking to avoid the statute of limitations in the Robinson-Patman Act bears the burden of showing it does not apply); Knox v. Cook County Sheriff s Police Dep t, 866 F.2d 905, 906 (7th Cir. 1988) (noting that while the statute of limitations is an affirmative defense, the burden of proving an exception to it rests on the plaintiff). In support of its rejection of the general rule, the majority decision asserted that it is the state, vis-à-vis the prison, that determines how prison mail is handled in the first place. A39. The majority decision stated, There 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. The majority decision offered suggestions as to how Wisconsin should set up its prison mail policies. The majority decision offered, To the extent the state feels it is tasked with proving a negative, it can allay those concerns by implementing procedures to better track and document its prisoners outgoing mail. A40. The majority decision s reasoning is flawed in at least two ways. First, it is not as easy as the majority suggests to implement a consistent, statewide outgoing mail policy. See Thompson, 761 So.2d at 325 (noting the inconsistent approach to outgoing mail logs in Florida prisons). Second, the majority decision ignored the record at issue in this case. Contrary to the majority decision s statement that its novel burden shifting

36 25 framework reflects the state s superior access to the proof, A37 (quoting International Bros. of Teamsters v. United States, 431 U.S. 324, 359 n.45 (1977)), the state had no access to the proof relevant here, much less superior access to it. Here, Ray specifically alleged he gave his motion to a prison official outside of the regular prison mail policies in place. Thus, any official policy from the prison would not and indeed did not help the state prove Ray did not do what Ray said he did. 1 As the dissent stated, [T]he mail logs the court references, while not produced, would have been completely useless because Ray testified that he did not place the motion in the prison s regular mail system. 2 A67. The majority decision asserted its holding is appropriate, even in cases like this one in which the state pleading at issue has never been received by the trial court. In support of its holding, the majority points to cases from the Ninth, Eleventh and Fifth Circuits. A34. None of these cases support the majority decision s conclusion that a burden shifting framework should be employed when a prisoner seeks tolling under 28 U.S.C. 2244(d)(2). See Huizar, 273 F.3d at 1223 (stating a prisoner must 1 As the dissent noted, the state submitted evidence regarding the prison s official mail policy. A61-A62, A62 n.1. Ray s alleged actions violated this policy. A61-A62. 2 In addition, it would not have been possible to produce the logs even if the state wished to do so because Diamondback Correctional Facility, at which Ray was housed when he alleges he mailed his motion, has since been closed. A66 n.2.

37 26 diligently follow[] up once he has failed to receive a disposition from the [state] court after a reasonable period of time in order to reap the benefit of statutory tolling under 28 U.S.C. 2244(d)(2)); Allen v. Culliver, 471 F.3d 1196, 1997 (11th Cir. 2006) (concerning the timeliness of a federal notice of appeal from a federal decision denying habeas relief); Stoot, 570 F.3d at 672 (adopting Huizar s diligence requirement to statutory tolling when the filing was never received by the state court). Under the majority s reasoning, a state prisoner could wait more than two years like in this case or more than ten, fifteen, or twenty years before investigating the status of his post-conviction motion in state court and still file a timely federal habeas petition. In fact, under the majority s approach, the prisoner need not follow up in state court at all and his state post-conviction motion is still properly filed when the state court never received it. All a prisoner need do under the majority s approach is to assert he filed a state postconviction within the appropriate time period and his motion is then tolled indefinitely. 3. The issue of which party bears the burden is a recurring issue that is often dispositive. This court should grant certiorari to resolve this frequently occurring issue that is often dispositive.

38 27 It is exceedingly common for prisoners to assert they filed their pleadings earlier than court records reflect. See Stoot, 570 F.3d at 671; Huizar, 273 F.3d at 1222; Allen, 471 F.3d at ; Mannix v. Phillips, 619 F.3d 187, 196 (2nd Cir. 2010). Federal courts are thus tasked with determining when a prisoner filed his pleading. Because of the one-year AEDPA limitations period, when a pleading is filed is often dispositive of the federal habeas case. See Stoot, 570 F.3d at In the habeas context, courts are frequently asked to determine years after the fact when a state pleading was filed. See Huizar, 273 F.3d at Whichever party bears the burden of proof will face an uphill battle. In these cases, and especially when the state has no access to the proof at issue, it is more reasonable to follow the general rule that the party seeking an exception to the limitations period bears the burden of proving that exception. Once the state has established the prisoner s habeas petition has been filed outside the one-year limitations period, it makes sense, as both the majority and the dissent agreed, to then shift the burden to the prisoner to prove he is entitled to tolling. A30, A60-A63. There is no reason to differ from the general rule here. As the dissent stated, That this case involves statutory tolling and not equitable tolling is of no moment the same principles apply: The party asserting an exception to the statute of limitations affirmative defense bears the burden of proving that exception. A61.

39 28 If this Court finds the burden to show tolling more properly rested with Ray, then this case should be remanded for the Seventh Circuit to review the district court s decision with Ray s burden in mind. C. This Court should grant certiorari review because the Seventh Circuit exceeded the scope of its limited appellate authority in substituting its factual findings for those of the district court. The majority decision exceeded the scope of its limited appellate authority when it disregarded the district court s fact findings in favor of its own. The sole factual question the Seventh Circuit asked the district court to answer was whether Ray gave a post-conviction motion for mailing to Tamara Smith, an Oklahoma prison social worker, in April A116. After listening to testimony from several witnesses, including Ray, and reviewing the evidence submitted by the parties, the district court concluded Ray did not give Smith a Wis. Stat motion for mailing in April A116, A137. In district court, the question was solely Ray s credibility. In order for Ray to prevail, the district court had to find his story credible. Because the district court found Ray s story incredible, inconsistent, not plausible, unreasonable and unconvincing, the court could come to no other conclusion than the one it did: Ray was lying. A130- A132, A134.

40 29 The district court found the evidence contradicting Ray s claim to be overwhelming. The court found it unbelievable that Ray would give an Oklahoma prison social worker a Wisconsin state postconviction motion for filing when Ray knew he was going to be transferred back to Wisconsin three days later. A120, A128. The court found it incredible that Ray would wait more than two years after he allegedly gave Smith the motion to inquire into its status with the court. A128. At the very least, [Ray] would have had to contact the court to let it know of the facility to which he had been transferred. A128. The court found it incredible that Ray would wait so long to contact the court when his alleged letters to Smith asking about his motion went unanswered. A128-A129. The court found it inconsistent and incredible that Ray was so concerned with his motion that he allegedly sent a letter to Smith only one month after he allegedly gave her the motion, but he waited more than two years to inquire with the court into its whereabouts. A129. The court found the three letters Ray alleges he sent Smith curious. A131. The court found it odd Ray would keep copies of these letters, but not a copy of his postconviction motion.

41 30 A131. Further, the court noted it was not possible to tell from the letters whether they were even sent. A131. The court found Ray s first affidavit filed in the district court inconsistent with his testimony. A131-A132. Ray s first affidavit mentioned one letter to Smith, not the three he now alleges he wrote. A131-A132. The affidavit also stated the letter was returned to him as undeliverable, but Ray made no such reference to this in his testimony. A131-A132. The court found Ray s alleged decision to continue to write Smith unreasonable when his first letter had been returned to him as undeliverable. A132. The district court also doubt[ed] the authenticity of [the] Certificate of Service By Mail form, which Ray claims Ms. Smith gave him to fill out. A132. The court stated the form looks more like the work product of a prisoner than a prison administration. A132. Similarly, the court doubted the existence of the alleged Privileged Correspondence Receipt, which Ray stated would have shown Smith took his motion. A132. The court noted Ray never mentioned the receipt until the Seventh Circuit issued its decision instructing the district court to determine the timeliness of Ray s petition. A132-A133.

42 31 The district court found Ray s explanation for his failure to mention the receipt at an earlier date was not believable. A133-A134. Further, the district court found it curious the prison policies failed to mention the existence of such a receipt. Finally, the district court found Ray s argument the Wisconsin prison lost the receipt unbelievable. A134-A137. The district court opined that Ray s detailed evidence in support of his allegation the prison lost the receipt after he asked for it to be photocopied suggested Ray had a purpose beyond a simple request for a thirty-cent disbursement for photocopying. A135. In other words, the record showed Ray sought to manufacture evidence in support of his claim. A135-A137. The majority decision looked at these detailed factual findings of the district court and found them to be clearly erroneous. A56. The majority decision criticized the state for its lack of affirmative proof that Ray did not give his post-conviction motion to an Oklahoma prison official in A49-A50. The majority decision criticized the state for offering testimony from only one witness and submitting only the prison s mail policy as evidence to contradict Ray s testimony. A49-A50. The majority decision ignored well-settled law that direct evidence is not necessary to prove a fact; circumstantial evidence is sufficient. Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 290 (7th Cir.