United States District Court, N.D. Illinois, Eastern Division
REBECCA R. PALLMEYER UNITED STATES DISTRICT JUDGE
David Wynter was convicted by a jury of home invasion and
aggravated criminal sexual assault. The evidence at trial
showed that the victim's assailant had entered her home
at 2 a.m., threatened her with an ice pick, and then raped
her vaginally. The Illinois trial court imposed two
consecutive 30-year prison terms, both to be served
consecutively to a sentence Wynter was serving on an
unrelated case. Wynter appealed, challenging the trial
court's decisions regarding his right of
self-representation and the admission of DNA evidence found
on the victim's underwear that identified Wynter as the
rapist. The Illinois Appellate Court affirmed Wynter's
conviction and sentence. He filed a post-conviction petition
as well, but it was denied by the trial court and on appeal.
filed this petition pursuant to 28 U.S.C. § 2254 on
December 4, 2018. Respondent, the warden at Stateville
Correctional Center, has moved to dismiss the petition as
untimely. That motion is granted.
Petition Was Not Timely Filed
motion, Respondent has laid out the relevant dates and
supported his assertions with exhibits. Wynter was convicted
in July 2009 and sentenced on January 10, 2010. He took a
direct appeal, but the Illinois Appellate Court, First
District, affirmed the conviction on June 19, 2012.
People v. Wynter, 2012 IL App (1st) 100258 (Ex. 1 to
Resp.'s Mot. to Dismiss [10-1].) Wynter filed a petition
for leave to appeal (“PLA”) to the Illinois
Supreme Court, but the Court denied the PLA on November 28,
2012. Because he did not petition for a writ of certiorari
from the U.S. Supreme Court, Wynter's conviction became
final on February 26, 2013, and the one-year period for
filing this petition began running. See Jimenez v.
Quarterman, 555 U.S. 113, 120 (2009).
“clock” stopped 106 days later on June 13, 2013,
when Petitioner filed a state court post-conviction petition.
The trial court denied that petition as patently frivolous,
and the Appellate Court affirmed on March 20, 2017.
People v. Wynter, 2017 IL App (1st) 133729-U (Ex. 3 to
Resp.'s Mot. to Dismiss [10-3].) On November 22, 2017,
the Illinois Supreme Court denied Wynter's PLA.
People v. Wynter, 419 III.Dec. 658, 93 N.E.3d 1075
(Table) (2017) (Ex. 4 to Resp.'s Mot. to Dismiss [10-4].)
The time for filing of this petition began running again from
that date. With 106 days already elapsed, Petitioner had 259
days left in which to file a timely petition with this
court-that is, until about August 8, 2018.
Petitioner did not meet that deadline. He filed this petition
on December 4, 2018, more than 100 days after the time for
filing had run. Respondent has moved to dismiss the petition
as untimely, and Petitioner filed several documents in
There Is No. Basis for Equitable Tolling
Petitioner filed a motion “for substitute
documents”  in which he asserted that he did not
have copies of all relevant materials and needed additional
time to obtain them before responding to the motion. A week
later, however, Petitioner wrote to the court [14, 15],
acknowledging that he had located what he needed, and then
filed a handwritten memorandum in opposition to the motion to
dismiss. In that memorandum, Petitioner focused on what he
believes are errors in the trial process. He mentioned the
matter of timeliness in a single sentence, asserting that
“a member of the prison security staff knocked me
unconscious May 15, 2016; damage to my eye was harmful to
this Petitioner's deadline . . . .”
(Pet'r's Opp'n. to Mot. to Dismiss  at 6.) In
a supplemental submission, Petitioner again challenged
purported trial errors. With respect to the issue of
timeliness, he asserted that his “counsel erroneously
informed me concerning the time frame to file” this
petition. And he again argued that eye injuries resulting
from the May 2016 assault “adversely affected [him] in
every way and mentally disadvantaged his ability” to
file a timely petition. (Mot. to Amend , at 3.) Documents
that Petitioner submitted in yet another filing confirm that
he sought care for his eye injury in 2016. (Mot. to Clarify
 at 2.)
argues that neither of these circumstances excuses the
untimeliness of the petition. The court agrees. To establish
equitable tolling, Petitioner would have to show (1) that he
diligently pursued his rights; and (2) that an extraordinary
circumstance stood in his way, preventing a timely filing.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Ample case law defeats the argument that an attorney's
negligence in counseling the client about time limits
constitutes extraordinary circumstances for this purpose.
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.”); Modrowski v. Mote, 322
F.3d 965, 968-69 (7th Cir. 2003) (attorney negligence is not
ground for equitable tolling). “[N]either ignorance of
the law nor bad (or incomplete) advice from counsel permits
tolling, ” U.S. ex rel. Strong v. Hulick, 530
F.Supp.2d 1034, 1038 (N.D. III. 2008), and a litigant's
“lack of legal expertise is not a basis for invoking
equitable tolling.” Tucker v. Kingston, 538
F.3d 732, 735 (7th Cir. 2008).
second argument for tolling relates to the eye injuries he
claims to have suffered in 2016 at the hands of a prison
guard. For purposes of this ruling, the court assumes the
assault was unprovoked and that Petitioner's injuries
were serious. As Respondent notes, however, the injuries did
not stand in the way of meeting the August 2018 filing
deadline; Petitioner filed a state post-conviction petition
in 2017, despite the injuries. These circumstances defeat the
inference that Petitoner's injuries support equitable
tolling. “When an inmate, despite roadblocks thrown in
his way, has reasonable time remaining to file a habeas
petition in a timely manner, the circumstances cannot, as a
definitional matter, be said to have prevented timely filing,
as the standard requires.” Taylor v. Michael,
724 F.3d 806, 811-12 (7th Cir. 2013).
Appears to Lack Merit
this petition is untimely, the court need not address the
merits of Petitioner's claims. The court notes, however,
that the state courts carefully examined the claims he raises
here, and their analysis reflects reasonable applications of
constitutional principles. Petitioner contends he was denied
his Sixth Amendment right of self-representation, but the
Illinois courts quoted transcript excerpts supporting the
conclusion that Petitioner did not “clearly and
unequivocally” invoke that right at trial. See
People v. Wynter, 2012 IL App (1st) 100258 *2-4, 10, 11.
Petitioner challenged the admission of the DNA evidence, as
well; in rejecting that challenge, id. * 14, the
Illinois Appellate Court relied on the Illinois Supreme Court
case, People v. ...