Moore, Allan O. v. Battaglia, Deirdre ( 2007 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-1118
    ALLAN O. MOORE, SR.,
    Petitioner-Appellant,
    v.
    DEIRDRE BATTAGLIA, WARDEN,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 03 C 1055—Michael M. Mihm, Judge.
    ____________
    ARGUED OCTOBER 19, 2006—DECIDED FEBRUARY 12, 2007
    ____________
    Before RIPPLE, MANION, and ROVNER, Circuit Judges.
    MANION, Circuit Judge. Allan Moore filed a petition for
    a writ of habeas corpus in federal court challenging his
    conviction in Illinois state court. The district court dis-
    missed the petition as time-barred. Moore appeals, argu-
    ing that the deadline for filing his petition should have
    been tolled because of an inadequate prison library,
    which allegedly did not contain the relevant statute of
    limitations. Because the factual record is insufficiently
    developed, we vacate the district court’s dismissal and
    remand for further proceedings.
    2                                                     No. 05-1118
    I.
    In 1994, an Illinois jury convicted Allan Moore of three
    counts of aggravated kidnaping, and he received a sentence
    of thirty years in prison. On Moore’s direct appeal, the
    Illinois courts affirmed the conviction and sentence. Moore
    then filed his first petition for post-conviction relief in state
    court, which was denied. The Illinois Supreme Court
    denied Moore’s petition for leave to appeal that first
    petition on December 4, 1996. Moore filed another petition,
    which was similarly unsuccessful. The Illinois Supreme
    Court denied the petition for leave to appeal that petition
    on December 2, 1998.
    Turning to the federal courts, Moore filed his first habeas
    corpus petition on December 30, 1999. Moore v. Attorney
    General of Illinois, No. 99-1407 (C.D. Ill. filed Dec. 30, 1999).
    That petition, however, was dismissed without prejudice
    for failure to prosecute on April 21, 2000. Almost three
    years later, Moore sent the district court a letter claim-
    ing newly discovered information surrounding his case.
    The court received the letter on February 19, 2003. After
    further correspondence, the district court judge directed
    the clerk to send to Moore the proper forms for filing a
    petition under 
    28 U.S.C. § 2254
    . Moore mailed the com-
    pleted forms on March 5, 2003, and the clerk filed the
    petition on March 12, 2003.
    In his petition, Moore alleged four1 grounds for relief: (1)
    1
    Moore’s original petition before the district court appears to
    allege a fifth ground: “there’s no positive [i]dentification of
    Petitioner on record . . . . Although [a] description was given, the
    [j]udge at no time [let the record] reflect the identification.” The
    (continued...)
    No. 05-1118                                                        3
    his trial counsel’s alleged actual conflict of interest with his
    co-defendant; (2) the state court’s alleged failure to advise
    Moore of the terms of mandatory supervised release; (3)
    the state’s use of evidence obtained as a result of an
    allegedly unlawful arrest; and (4) the denial of jury instruc-
    tions on a lesser included offense. The district court
    ordered Moore to demonstrate the timeliness of his peti-
    tion. Moore responded by providing the Illinois Supreme
    Court’s orders dated December 4, 1996 and December 2,
    1998. Without any state response, the district court dis-
    missed Moore’s first, third, and fourth claims with preju-
    dice as time-barred on April 22, 2003. The district court
    dismissed Moore’s second ground for relief, which chal-
    lenged his supervised release, as frivolous and unripe.
    Moore requested that the district court reconsider its
    ruling, identifying another state court post-conviction
    petition that had been denied on January 31, 2002, and
    stating that he was unaware of his particular legal rights
    since “[t]he law library here have [sic] been misleading
    me in the wrong direction.” The district court denied the
    motion for reconsideration, concluding that the petition
    was still untimely even considering the January 31, 2002
    denial of post-conviction relief. Undeterred, Moore sought
    (...continued)
    district court’s orders discussed only the first four grounds, and
    Moore characterizes his petition as containing only four
    claims on appeal. Because Moore did not address this omission
    in his opening brief or in seeking a certificate of appealability, it
    is forfeited. J.S. Sweet Co. v. Sika Chem. Corp., 
    400 F.3d 1028
    , 1035
    n.2 (7th Cir. 2005) (citing Employers Ins. of Wausau v. Browner, 
    52 F.3d 656
    , 665-66 (7th Cir. 1995)); see also Fed. R. App. P.
    28(a)(9)(A); 
    28 U.S.C. § 2253
    (c)(3).
    4                                                No. 05-1118
    a certificate of appealability on the district court’s ruling
    that his claims were time-barred. In this filing, Moore
    more explicitly claimed that the library in his prison was
    inadequate and impeded his pursuit of his claims. The
    district court granted a certificate of appealability for the
    claims it had deemed time-barred and Moore appealed.
    While on appeal, the district court requested a remand
    of the case to amend its analysis. We remanded the case.
    On remand, the district court then entered an amended
    order denying Moore’s motion for reconsideration, con-
    cluding again that Moore’s petition was time-barred. In
    particular, the district court corrected some errors in the
    calculation of the deadlines. The district court again
    granted a certificate of appealability regarding whether
    the claims were time-barred. Moore again appeals.
    II.
    On appeal, now with the assistance of counsel, Moore
    argues that the district court improperly dismissed his
    petition as time-barred because he is entitled to equitable
    and statutory tolling due to an inadequate prison law
    library. We review a district court’s dismissal of a habeas
    corpus petition de novo. Moore v. Knight, 
    368 F.3d 936
    , 938
    (7th Cir. 2004) (citation omitted).
    In 1996, Congress enacted the Antiterrorism and Effec-
    tive Death Penalty Act (“AEDPA”), “which imposed a
    1-year statute of limitations for filing a federal habeas
    corpus petition.” Pliler v. Ford, 
    542 U.S. 225
    , 230 (2004)
    (citing 
    28 U.S.C. § 2244
    (d)(1)). Under the statute, “a per-
    son in custody pursuant to the judgment of a State court”
    must file his petition within a “1-year period of limitation.”
    
    28 U.S.C. § 2244
    (d)(1). As a state prisoner, the statute
    No. 05-1118                                                5
    applies to Moore, but Moore concedes that his petition
    was not filed within the required one-year period. The one-
    year period is tolled, however, if the state creates an
    impediment to filing a petition: “The limitation period
    shall run from the latest of . . . 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.” 
    Id.
     Moore also claims that
    he deserves equitable tolling of the limitation period, which
    is warranted if “extraordinary circumstances outside of the
    petitioner’s control prevent timely filing of the habeas
    petition.” Gildon v. Bowen, 
    384 F.3d 883
    , 887 (7th Cir. 2004)
    (citation omitted); see also Williams v. Sims, 
    390 F.3d 958
    ,
    959-64 (7th Cir. 2004).
    Regarding statutory tolling, Moore argues that the
    inadequate prison library constituted a state-created
    impediment to his filing a petition. This circuit previously
    stated, “[a]lthough neither § 2244 nor this circuit has
    defined what constitutes an ‘impediment’ for purposes
    of § 2244(d)(1)(B), the plain language of the statute
    makes clear that whatever constitutes an impediment
    must prevent a prisoner from filing his petition.” Lloyd v.
    VanNatta, 
    296 F.3d 630
    , 633 (7th Cir. 2002) (emphasis
    in original). The Seventh Circuit has yet to decide wheth-
    er an inadequate library is grounds for statutory tolling as
    a state-created impediment. The Fifth and Ninth Cir-
    cuits have addressed this issue; both have held that
    inadequate law libraries may, but do not necessarily,
    constitute an impediment qualifying for tolling under
    section 2244(d)(1)(B). See Egerton v. Cockrell, 
    334 F.3d 433
    ,
    438 (5th Cir. 2003); Whalem/Hunt v. Early, 
    233 F.3d 1146
     (9th
    Cir. 2000) (en banc).
    6                                                  No. 05-1118
    In Egerton, the petitioner filed his petition after the one-
    year period, and the state moved to dismiss the petition.
    In response, the petitioner claimed that he had inade-
    quate prison library facilities that “lacked the federal
    materials necessary for him to pursue habeas relief.”
    Egerton, 
    334 F.3d at 435
    . The district court found no basis
    for statutory or equitable tolling and dismissed the peti-
    tion as untimely. The Fifth Circuit remanded the case to
    develop further the record. 
    Id.
     On remand, the magistrate
    judge found that “there was ‘no evidence to support a
    finding that [petitioner] had actual knowledge of the
    [statute of limitations] prior to the expiration.’ ” 
    Id. at 436
    .
    In particular, the magistrate judge noted that the state
    did not provide any evidence regarding whether the library
    contained the statute of limitations. 
    Id.
     With this enhanced
    record, the Fifth Circuit confronted the question of
    “whether absence of the [statute of limitations] from the
    prison law library invokes” statutory tolling under 
    28 U.S.C. § 2244
    (d)(1)(B). 
    Id. at 438
    . The Fifth Cir-
    cuit concluded that “a state’s failure to provide the mate-
    rials necessary to prisoners to challenge their convic-
    tions or confinement, in this case a copy of the very stat-
    ute that is being used to render [the petitioner’s] petition
    time-barred, constitutes an ‘impediment’ for purposes of
    invoking § 2244[(d)](1)(B).” Id. at 438-39.
    Similarly, in Whalem/Hunt, the petitioner filed his peti-
    tion after the one-year period, and the state moved to
    dismiss the petition. In response, the petitioner sub-
    mitted a declaration “that the law library of the prison in
    which he is incarcerated did not have legal materials
    describing” the statute of limitations until after his year
    had expired. Whalem/Hunt, 
    233 F.3d at 1147
    . The district
    court determined that the petition was untimely and that
    No. 05-1118                                                     7
    no tolling was warranted. 
    Id. at 1148
    . The Ninth Circuit
    reversed, stating that “[w]e do not agree with the district
    court that there are no circumstances consistent with
    petitioner’s petition and declaration under which he would
    be entitled to a finding of an ‘impediment’ under
    § 2244(d)(1)(B) or to equitable tolling.” Id. The Ninth
    Circuit further stated that “[o]n the present record, how-
    ever, we cannot go farther.” Id. The district court had not
    conducted an evidentiary hearing or solicited a response
    from the state regarding the contents of the prison library.
    Id. Noting that the issues of whether a state-created impedi-
    ment or grounds for equitable tolling existed “are highly
    fact-dependent,” the court concluded that it could not
    determine whether there were grounds for tolling under a
    limited record. Id. Accordingly, the Ninth Circuit re-
    manded for further proceedings “to develop the facts
    and assess their legal significance.” Id. A concurring opin-
    ion clarified that
    [w]e cannot tell, . . . on this record, precisely what the
    factual circumstances were regarding [petitioner’s]
    ability or inability to learn of the . . . one-year statute of
    limitations. Nor can we determine the connection, if
    any, between [petitioner’s] late-filing of his petition
    and any legal research difficulties affecting him while
    in prison.
    Id. at 1149 (Tashima, J., concurring).
    Like the proceedings in the Ninth Circuit and the initial
    proceedings in the Fifth Circuit, this case presents us
    with a limited factual record, particularly because the
    district court did not require the state to respond to the
    petition. We cannot glean from the record whether the
    prison library contained the relevant statute of limitations.
    Although Moore does not unequivocally assert that the
    8                                                No. 05-1118
    library lacked the statute of limitations, he does assert that
    there are “no lawbooks in [his] cell nor are they letting
    us go to the maximum Law Library for Federal Habeas
    Corpus for State Prisoner’s [sic].” Moore also claims that
    the books that are available are “real old,” irrelevant to
    his needs, and that the law has changed from that avail-
    able in the library. The state never had an opportunity
    to respond to this contention. The record thus does not
    establish whether the prison library was adequate. Ac-
    cordingly, just as the Fifth and Ninth Circuits proceeded,
    we consider it premature to answer the question of
    whether an inadequate library provides a basis for statu-
    tory or equitable tolling. If, on remand, the district court
    determines that the library contained a copy of the stat-
    ute of limitations and the state did not prevent Moore from
    accessing the statute, there would be no need to reach the
    further legal question regarding tolling. We therefore
    express no opinion at this time regarding whether an
    inadequate prison library may provide a basis for statu-
    tory or equitable tolling.
    III.
    Because the factual record is insufficiently developed,
    we VACATE the district court’s dismissal and REMAND for
    further proceedings.
    No. 05-1118                                           9
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—2-12-07