October 21, 2013
United States of America ex rel. Reginald Boclair, Petitioner,
Rick Harrington, Warden,  Menard Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Petitioner Reginald Boclair, a state prisoner serving a natural-life sentence for first degree murder and aggravated discharge of a firearm, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Warden Rick Harrington responded to the petition, arguing that the petition should be dismissed as untimely because Boclair failed to comply with the one-year statute of limitations imposed by § 2244(d)(1) or, alternatively that the petition should be denied because the claims raised in the petition are either procedurally defaulted or without merit. R. 20. Because the petition is untimely, the Court need not reach the merits of Boclair's claims. The petition is dismissed, and a certificate of appealability is denied.
Section 2244(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 provides that a "1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court." 28 U.S.C. § 2244(d)(1). This limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id. § 2244(d)(1)(A)-(D). Because Boclair's petition was filed more than a year after the conclusion of direct review, § 2244(d)(1)(A),  the petition is untimely.
Boclair's state court conviction became final on December 31, 1996. This date was 90 days after the Illinois Supreme Court denied Boclair's direct appeal petition for leave to appeal ("PLA") on October 2, 1996, R. 20, Exh. E, when the time to file a certiorari petition in the United States Supreme Court passed. See Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012) (holding judgment of conviction became final "when the time for pursuing direct review in [the Supreme] Court" expired). Boclair argues that the finality of his conviction should be calculated by using the date that the Illinois Supreme Court issued its mandate (November 19, 1996), not the date that the court actually issued its decision denying the PLA (October 2, 1996). R. 25 at 2-3. Boclair's proposed method of calculation, however, has been squarely rejected by the Seventh Circuit. See Griffith v. Rednour, 614 F.3d 328, 329 (7th Cir. 2010) (citing Wilson v. Battles, 302 F.3d 745, 747-48 (7th Cir. 2002) (review by Illinois Supreme Court ends on its decision date, rather than on date of issuance of mandate)).
Boclair's properly filed April 21, 1997 state postconviction petition, R. 20, Exh. F at C20, immediately tolled the limitations period under 28 U.S.C. § 2244(d)(2). See Wilson, 302 F.3d at 747. At this point, 111 days of untolled time had elapsed. The limitations period remained tolled until October 2, 2002, when the Illinois Supreme Court denied Boclair's postconviction PLA. See also Lawrence v. Florida, 549 U.S. 327, 332 (2007) (providing for no tolling while certiorari petition following conclusion of state postconviction proceedings was pending); Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (indicating no tolling available during 90-day period where habeas petitioner could have, but did not, seek certiorari following conclusion of state postconviction proceedings).
More untolled time elapsed-134 days-before Boclair mailed his third postconviction petition to the state circuit court on February 13, 2003. R. 20, Exh. P at C44. That petition was pending for over eight years until November 30, 2011, when the Illinois Supreme Court denied Boclair leave to appeal the state appellate court's judgment affirming the denial of postconviction relief. R. 20, Exh. W. An additional 159 days of untolled time elapsed between November 30, 2011 and May 7, 2012, when Boclair mailed his § 2254 petition to this Court. See R. 1-2 at 15.
Calculating the total number of days of untolled time (111 134 159), 404 days in total elapsed between the date Boclair's judgment became final and the date on which he filed his § 2254 petition in this Court. The petition is therefore untimely under § 2244(d)(1)(A) because it was filed more than one year after Boclair's judgment of conviction became final.
There is no basis for equitable tolling of the limitations period. Indeed, Boclair has not even requested that such tolling be applied. "[A] petitioner' is entitled to equitable tolling' only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Griffith, 614 F.3d at 331. Nothing in the record indicates that some extraordinary circumstance stood in the way of a timely filing. Rather, the late filing appears to have resulted from Boclair's decision to pursue numerous collateral attacks in state court. Should Boclair argue that his untimeliness is due to his misunderstanding of the law- Boclair appears to have misunderstood how to calculate the running of the limitations period-such misunderstanding does not permit tolling. See, e.g., Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006) ("Mistakes of law or ignorance of proper legal procedures are not extraordinary circumstances warranting invocation of the doctrine of equitable tolling.") Because Boclair's untimely filing was ultimately attributable to his own litigation strategy and not any extraordinary circumstance outside of his control, the application of equitable tolling is not warranted.
Boclair makes fleeting mentions-in the context of excusing the procedural default of his habeas claims-to his actual innocence. R. 25 at 4, 13, 17, 21. To the extent that he argues that his actual innocence excuses his untimeliness, that claim fails. Long-standing Seventh Circuit precedent established that a showing of actual innocence did not excuse untimeliness under § 2244(d). See, e.g., Griffith, 614 F.3d at 331; Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir. 2005). The Supreme Court, however, recently concluded to the contrary, holding that "actual innocence, if proved, serves as a gateway through which a petitioner may pass... [to excuse] the expiration of the statute of limitations." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). The Court, however, reiterated the very high hurdle that habeas petitioners must clear to pass through the actual innocence gateway to excuse the statute of limitations bar: "tenable actual-innocence gateway pleas are rare, " and the standard by which actual innocence gateway pleas are judged is "demanding' and seldom met." Id. (quoting House v. Bell, 547 U.S. 518, 538 (2006)). Confirming the standard for judging actual innocence gateway claims set forth in Schlup v. Delo, 513 U.S. 298, 329 (1995), the Court held that "a petitioner does not meet the threshold requirement [to excuse claims untimely due to the expiration of the statute of limitations] unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" McQuiggin, 133 S.Ct. at 1928 (quoting Schlup, 513 U.S. at 329).
Boclair fails to offer any "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy or eyewitness accounts, or critical physical evidence-that was not presented at trial'" to make out a claim of actual innocence. House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 324). He instead rests his claim of innocence on (1) his challenge to the evidence that was presented at trial as inconsistent and contradictory and thus wrongly interpreted by the state trial court; and (2) the testimony of two witnesses whom he alleges trial counsel was ineffective for not calling: Assistant State's Attorney ("ASA") Borowitz and Edwina Allen.
Following a bench trial, Boclair was convicted of shooting and killing Walter Deramus. The evidence at trial included three eyewitnesses identifying Boclair as the shooter, Boclair's confession to committing the crime, and the testimony of a disinterested witness who could not identify Boclair as the shooter but corroborated the eyewitnesses' accounts of the events in question. In finding Boclair guilty, the trial court rejected Boclair's challenges to the sufficiency of the evidence. Absent clear and convincing evidence to the contrary, which Boclair has not presented, the trial court's factual findings are therefore presumed correct under § 2254(e)(1). Morgan v. Hardy, 662 F.3d 790, 797-98 (7th Cir. 2011).
As to Boclair's new proposed evidene, that is insufficient as well to establish Boclair's actual innocence. The substance of ASA Borowitz's proposed testimony- she would testify that she initially decided to charge another individual with the victim's murder but later dropped those charges in exchange for that individual's testimony against Boclair-moreover was already known to the trial court. Another witness at trial testified to this fact. Moreover, the substance of Allen's testimony, the Court finds, was not probative on the key issue at trial: the shooter's identity. Allen would have testified that she saw two men running after she heard noises that sounded like gunshots. This testimony, however, does not indicate that she could have identified anyone as the shooter. At best, Allen's testimony could have contradicted one of the witness' testimony on a collateral issue-what direction one of the witnesses' fled after the shooting.
Accordingly, when considering the entirety of the evidence presented at trial and the proposed testimony of ASA Borowitz and Edwina Allen, the Court finds that Boclair's evidence in support of his actual innocence is not so "strong that a court cannot have confidence in the outcome of the trial.'" McQuiggin, 133 S.Ct. at 1936 (quoting Schlup, 513 U.S. at 316 (approving of district court's evaluation and rejection of habeas petitioner's new proffered evidence in support of actual innocence-gateway claim)); cf. Woods v. Schwartz, 589 F.3d 368, 377 (7th Cir. 2009) ("[I]t is black letter law that the testimony of a single eyewitness suffices for conviction even if 20 bishops testify that the eyewitness is a liar.") (quoting Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005)). Accordingly, Boclair cannot excuse his untimeliness.
For these reasons, Boclair's petition is untimely, and it is dismissed. Rule 11(a) of the Rules Governing § 2254 Cases provides that the district court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." To obtain a certificate of appealability, a habeas petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011). And where a petition is disposed of based on a procedural bar, without reaching the merits of the underlying constitutional claims, a certificate of appealability should issue only if reasonable jurists would find the adjudication of the antecedent procedural ruling "debatable." Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); see also Lavin, 641 F.3d at 832. Because the untimeliness of Boclair's petition is not debatable, a certificate of appealability is denied. See Slack, 529 U.S. at 584. ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.").
For the foregoing reasons, Boclair's § 2254 petition is dismissed with prejudice as untimely, and a certificate of appealability is denied.