September 8, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. 14-CV-771 - J. P. Stadtmueller,
Wood, Chief Judge, and Kanne and Hamilton, Circuit Judges.
jury convicted Ronald Marion Carpenter, Jr. of kidnapping,
false imprisonment, and several counts of sexual assault.
Carpenter challenged his conviction on both direct and
collateral review in Wisconsin state court. His conviction
was affirmed, and his state petition for a writ of habeas
corpus was denied.
then filed a petition for a writ of habeas corpus in the
Eastern District of Wisconsin. By the time he filed this
federal petition, however, the one-year statutory limitation
period had already passed. The district court dismissed
Carpenter's petition as untimely. Carpenter does not
dispute that his petition was untimely; instead, he argues
that his delay should be equitably tolled and that we should
hear the merits of his case. Because Carpenter has not met
the standard for equitable tolling, we agree with the
district court. We hold that Carpenter's petition is
untimely and thus was properly denied.
August 27, 2008, a jury in Milwaukee County Circuit Court
found Carpenter guilty of kidnapping, false imprisonment,
four counts of second-degree sexual assault, and four counts
of first-degree sexual assault. Carpenter was sentenced to
fifty-nine years' imprisonment followed by twenty-four
years of extended supervision. His conviction and sentence
were affirmed on appeal, and the Wisconsin Supreme Court
denied Carpenter's petition for review.
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), "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 limitation
period runs from the latest of several dates, only one of
which is relevant to this case: "the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review."
§ 2244(d)(1)(A). This one-year period is statutorily
tolled for the "time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending ... ." § 2244(d)(2).
conviction became final on January 27, 2012, when the period
for seeking certiorari expired. Because Carpenter
had filed a petition for a supervisory writ in the Wisconsin
Supreme Court on November 4, 2011, and because that petition
remained pending when his conviction became final, the
one-year AEDPA limitations period was statutorily tolled
until February 23, 2012, when the Wisconsin Supreme Court
rejected that petition. Carpenter's one-year window under
AEDPA thus began on February 23, 2012.
statutory period was again tolled on October 18, 2012 -after
running for 238 days-when Carpenter filed a petition for a
writ of habeas corpus in the Wisconsin Court of Appeals. The
court denied that petition. The Wisconsin Supreme Court
upheld the denial of that petition on August 1, 2013, and the
AEDPA period began to run again, leaving Carpenter with 127
days to file his habeas petition in federal court.
Carpenter's window under AEDPA closed on December 6,
didn't file his petition for a writ of habeas corpus in
the Eastern District of Wisconsin until July 3, 2014, nearly
seven months later. Carpenter does not dispute that the
one-year limitations period under AEDPA expired before he
filed his federal habeas corpus petition. Instead, he argues
that his delay should be excused under the doctrine of
equitable tolling. The district court rejected that argument.
This appeal followed.
circumstances, the doctrine of equitable tolling permits a
federal habeas petitioner to overcome a breach of AEDPA's
one-year limitations period. Taylor v. Michael, 724
F.3d 806, 810 (7th Cir. 2013). Although not a
"chimera-something that exists only in the imagination,
" Socha v. Boughton,763 F.3d 674, 684 (7th
Cir. 2014), equitable tolling is an extraordinary remedy that
is "rarely granted." Obriecht v. Foster,727 F.3d 744, 748 (7th Cir. 2013) (quoting Simms v.
Acevedo,595 F.3d 774, 781 (7th Cir. 2010)). A habeas
petitioner is entitled to equitable tolling only if he shows
"(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing." Holland v.
Florida,560 U.S. 631, 649 (2010) (internal quotation
marks omitted)). The habeas petitioner bears the burden of
demonstrating both elements of the Holland test.
Williams v. Buss,538 F.3d 683, 685 (7th Cir. 2008).
If the petitioner cannot demonstrate either of the two
elements, then equitable tolling will not be applied.
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