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Socha v. Pollard

September 3, 2010


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08-CV-00994-Rudolph T. Randa, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.


Before WOOD, EVANS, and SYKES, Circuit Judges.

After the Supreme Court of Wisconsin declined to review his conviction for first degree homicide, Thomas Socha attempted to file a petition for a writ of habeas corpus in federal court. Seeking a lawyer, Socha tried first to enlist the help of the Wisconsin Innocence Project. Though the Project initially informed Socha that it would consider taking his case, almost a year later it told Socha that it could not offer any assistance. Left to his own devices, Socha struggled to review the voluminous record in his case and tried his best to master the complexities of federal habeas corpus. This already-difficult task was made harder by the fact that Socha was in the segregation unit; as a result, he had access to the law library for only a few hours a month.

Having made little progress on his pro se petition and mindful that the deadline for commencing his case was fast approaching, Socha filed a motion on July 15, 2008, with the District Court for the Eastern District of Wisconsin, requesting a 90-day extension of the one-year limitations period set out in 28 U.S.C. § 2244(d). This was before the deadline, but only by a single day. A few months later, Judge J.P. Stadtmueller granted the ex parte motion on the ground that Socha's restricted access to the library had created an impediment to filing that was outside his control.

Socha filed his petition for habeas corpus within the period specified in Judge Stadtmueller's order, on November 19, 2008. At that point, however, the case was assigned to Judge Rudolph Randa, who dismissed the petition as untimely. Judge Randa took the position that Judge Stadtmueller's order extending the limitations period was an impermissible advisory opinion and thus of no effect, because the court issued the order before Socha had filed his petition. Judge Randa also concluded that there was no evidence of extraordinary circumstances that would warrant equitable tolling of the limitations period.

We granted Socha's request for a certificate of appealability and now vacate the district court's judgment, based on our conclusion that Judge Randa assumed too quickly that Socha's petition was untimely. We remand the case for further proceedings consistent with this opinion.


On November 20, 2001, three men brutally murdered Lance Leonard and buried him in a shallow grave near the woods in Crandon, Wisconsin. Police traced the crime back to the three killers and two others, Beth Mrazik and Thomas Socha, who were not present that night. Mrazik and two of the killers entered into plea agreements and testified against Socha at his trial. Each of them said that Socha played a part in planning Leonard's murder. Socha was anxious to get Leonard out of the picture, they asserted, because he feared that Leonard might implicate him in a fraudulent check scheme or reveal that he had stolen $12,000 to $16,000 of his drug supplier's cocaine.

According to Mrazik, as the police drew closer to cracking the case, Socha threatened that the Mafia would go after her if he were connected to the murder plot. When the police eventually did catch Socha, he dug himself into an even deeper hole. He asked them if the authorities had picked up Mrazik, since she knew all about the murder. While he questioned why he was being charged with homicide, he commented that he did not have "any problem being charged with party to a crime."

After a bench trial, Socha was convicted of first-degree intentional homicide. He appealed and, as permitted by Wisconsin law, filed a motion at the same time requesting post-conviction relief. In these two filings, he pressed a number of different theories, including insufficiency of the evidence, ineffective assistance of counsel, and prosecutorial misconduct. The Wisconsin Court of Appeals was unmoved by any of these points and affirmed, and on April 17, 2007, the Supreme Court of Wisconsin denied further review.

At this point, Socha elected not to file a petition for certiorari with the Supreme Court of the United States, and he also eschewed any further state-court remedies. Instead, he turned his attention to federal habeas corpus relief. As a state prisoner, Socha was allowed one year from the date when his conviction became final to file his federal habeas corpus petition. 28 U.S.C. § 2244(d)(1)(A). Once the 90-day deadline for applying for certiorari passed, the time for seeking direct review of Socha's conviction came to a close and that one-year period began to run. Id. In concrete terms, this meant that Socha had until July 16, 2008, to file his petition.

Over the course of that year, Socha confronted a number of obstacles that delayed his filing. For much of the year, he thought that the Wisconsin Innocence Project was going to represent him, but shortly before the original deadline, it informed him that it could not take the case. Socha's efforts to proceed pro se while he waited to hear from the Project were hindered by his placement on April 15, 2008, in prison segregation.

Prisoners in segregation may visit the prison law library. Access to the prison law library for inmates in segregation is limited to one 40-minute period once a week, ...

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