Lo, Anou v. Endicott, Jeffrey ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3948
ANOU LO,
Petitioner-Appellant,
v.
JEFFREY P. ENDICOTT,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 133—Rudolph T. Randa, Chief Judge.
____________
ARGUED SEPTEMBER 25, 2007—DECIDED OCTOBER 26, 2007
____________
Before EASTERBROOK, Chief Judge, and BAUER and
KANNE, Circuit Judges.
BAUER, Circuit Judge. On January 12, 1996, Petitioner-
Appellant Anou Lo was convicted in a Wisconsin court of
attempted murder and reckless endangerment. Several
years after Lo exhausted his direct appeal, the Wisconsin
Supreme Court modified the substantive law of self-
defense and invalidated certain standard jury instruc-
tions, including an instruction given at Lo’s trial. Lo
petitions for a writ of habeas corpus, arguing that the
Wisconsin decision is a “factual predicate” giving rise to
a new one-year limitations period. Alternatively, he
contends that the decision warrants equitable tolling of
his petition. The district court dismissed Lo’s petition as
untimely, and we affirm.
2 No. 06-3948
I. Background
On July 6, 1995, Lo shot and injured a member of a
street gang in La Crosse, Wisconsin. At his trial, Lo argued
that he did so in self-defense. The Wisconsin circuit court
determined that Lo adequately raised the issue and gave
the standard jury instruction on imperfect self-defense. On
January 12, 1996, the jury convicted Lo of attempted
first-degree intentional homicide while armed and
first-degree reckless endangerment while armed. On
February 26, 1996, the judge sentenced Lo to consecutive
terms of 20 years’ imprisonment on the attempted homi-
cide conviction and 9 years’ imprisonment on the reckless
endangerment conviction.
On February 5, 2004, Lo filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 claiming
that the Wisconsin circuit court improperly instructed the
jury on imperfect self-defense in violation of his right
to due process. Respondent-Appellee Jeffrey Endicott,
warden of the prison in which Lo was and is imprisoned,
moved to dismiss the claim as untimely. The district
court granted Endicott’s motion on October 6, 2005.
II. Discussion
Lo argues that the district court erred in finding that
the statute of limitations for his petition ran from the
date that his conviction became final. He submits that
State v. Head, 255 Wis.2d 194, 648 N.W.2d 413 (2002),
issued several years after his conviction became final,
acted as a trigger for a new one-year limitations period
for habeas relief. In the alternative, Lo argues that he
is entitled to equitable tolling. We review the district
court’s decision to deny Lo’s habeas petition de novo.
Balsewicz v. Kingston, 425 F.3d 1029, 1031 (7th Cir. 2005).
No. 06-3948 3
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) provides that “[a] 1-year period of limita-
tion 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). The one-year
period begins to run, according to § 2244(d)(1), from the
latest of the following:
(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.
Section 2244(d)(1)(A) determines the finality of Lo’s
sentence. On August 21, 1998, the Wisconsin Supreme
Court denied Lo’s petition for review of the Wisconsin
Court of Appeals’s decision on Lo’s direct appeal. Lo did
not seek certiorari review by the United States Su-
preme Court. As a result, his conviction became final on
November 19, 1998, allowing for the ninety days in which
Lo could have applied for certiorari. See Balsewicz, 425
F.3d at 1032.
The district court held that, under § 2244(d)(1)(A), Lo
had until November 19, 1999 to file his habeas petition.
4 No. 06-3948
As Lo filed on February 5, 2004, the district court dis-
missed his claim as untimely.
Lo argues that instead of § 2244(d)(1)(A), the district
court should have applied § 2244(d)(1)(D). He contends
that a subsequent Wisconsin Supreme Court deci-
sion constituted a new “factual predicate” under
§ 2244(d)(1)(D), thereby triggering a new one-year limita-
tions period.
In State v. Head, the Wisconsin Supreme Court rede-
fined the burden on the state to disprove the defense of
imperfect self-defense in a prosecution for first-degree
intentional homicide.1 255 Wis.2d at 244, 648 N.W.2d at
437. Had Lo’s trial occurred after Head, Lo argues, the
jury would have received a different instruction on im-
perfect self-defense.
To support his argument that a court decision can be
a “factual predicate” within the meaning of § 2244(d)(1)(D),
Lo relies primarily on Johnson v. United States, 544 U.S.
295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). In Johnson,
the Supreme Court held that the vacatur of the peti-
tioner’s prior state conviction was a matter of fact for
purposes of a one-year statute of limitations under 28
1
Prior to State v. Head, Wisconsin law allowed the state to
defeat a defense of imperfect self-defense by showing that
any belief on the part of the defendant that he needed to defend
himself was unreasonable. See State v. Camacho, 176 Wis.2d 860,
872, 501 N.W.2d 380, 384 (1993). Head rejected this standard
and held that when imperfect self-defense is raised, “the
state has the burden to prove that the person had no actual
belief that she was in imminent danger of death or great
bodily harm, or no actual belief that the amount of force she used
was necessary to prevent or terminate this interference.” 255
Wis.2d 194, 244, 648 N.W.2d 413, 437 (2002) (emphasis added).
No. 06-3948 5
U.S.C. § 2255, ¶ 6(4).2 Under § 2255, a one-year limita-
tions period runs from “the date on which the facts sup-
porting the claim or claims presented could have been
discovered through the exercise of due diligence.” The
Court found that the prior conviction was a “fact” because,
inter alia, it was “subject to proof or disproof like any
other factual issue.” 544 U.S. at 306-07, 125 S.Ct. 1571.
Subsequent courts have declined to interpret Johnson
as holding that any decision of any court acts as a fact-
ual predicate for purposes of extending the limitations
period for habeas review. In Daniels v. Uchtman, we
held that a decision by the Illinois Supreme Court on the
merits of a belated collateral attack was not a “factual
predicate” of petitioner’s habeas claim. 421 F. 3d 490, 492
(7th Cir. 2005). In Shannon v. Newland, the Eleventh
Circuit examined facts similar to the case before us
and found that while a state court order of vacatur can
be a fact that begins the one-year limitations period, a
state court decision establishing an abstract proposition
of law arguably helpful to the petitioner’s claim does not
constitute a factual predicate for that claim. 410 F.3d
1083, 1088-89 (11th Cir. 2005); see also E.J.R.E. v. United
States, 453 F.3d 1094, 1097-98 (8th Cir. 2006) (finding
that a federal court of appeals decision was not a qualify-
ing fact under § 2255, ¶ 6(4)).
2
As noted by the Eleventh Circuit in Shannon v. Newland, 410
F.3d 1083, 1088 (11th Cir. 2005), § 2255, ¶ 6(4) is the almost
identical counterpart to § 2244(d)(1)(D) that applies to motions
by federal prisoners attacking their sentences. The Supreme
Court has interpreted the statute of limitations provisions of
§ 2244 and § 2255 in concert with one another. See, e.g.,
Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394,
402, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) (plurality op. of
O’Connor, J.).
6 No. 06-3948
The Wisconsin Supreme Court’s clarification of the
law does not constitute a “factual predicate” within the
meaning of § 2244(d)(1)(D). Unlike the state court vacatur
in Johnson, State v. Head was not a fact within Lo’s own
litigation history that changed his legal status. As in
Shannon, the Wisconsin Supreme Court’s decision could
arguably help Lo’s claim, but that does not make the
decision a fact subject to proof or disproof. Moreover,
adopting Lo’s argument would render the limitations
in § 2244(d)(1)(C) meaningless. Section 2244(d)(1)(C), the
primary vehicle through which court decisions restart
the limitations period, provides that the decision must
involve a constitutional right recognized by the Su-
preme Court, and that the Court must make the right
retroactively applicable to cases on collateral review. To
suggest, as Lo does, that any decision by any court on
any issue could constitute a “factual predicate” would
swallow up the specifically delineated limitations in
§ 2244(d)(1)(C). Though some state court judgments
could potentially constitute a trigger for a new limitations
period under AEDPA—as in Johnson—we do not find
that a state court decision modifying substantive law
constitutes a “factual predicate” under § 2244(d)(1)(D)
justifying a new one-year limitations period.
In the alternative, Lo argues that the district court
should have applied the doctrine of equitable tolling to
excuse his untimeliness. He argues that because he
could not have possibly discovered the basis for his fed-
eral claim until after the Head decision, his claim deserves
to be equitably tolled.
Equitable tolling is proper when extraordinary circum-
stances outside of the petitioner’s control prevent timely
filing of the habeas petition. Arrieta v. Battaglia, 461
F.3d 861, 867 (7th Cir. 2006). We have acknowledged
that equitable tolling may apply to § 2244, but only
where the judge-made doctrine does not conflict with the
No. 06-3948 7
express tolling provisions listed in § 2244(d). Taliani v.
Chrans, 189 F.3d 597, 598 (7th Cir. 1999). Equitable
tolling is rarely granted. Jones v. Hulick, 449 F.3d 784, 789
(7th Cir. 2006).
Lo fails to demonstrate the extraordinary nature of
the circumstances surrounding his claim. We have
never held that a change in state substantive law consti-
tutes an “extraordinary circumstance” that warrants
equitable tolling. Additionally, an application of the
doctrine in this case would conflict with the express tolling
provisions of § 2244(d). The underlying reasons that Lo
presents for both arguments are identical; Lo simply
recasts his § 2244(d)(1)(D) argument and cloaks it in
terms of equity. To allow Lo to succeed on this rechar-
acterized argument would usurp the congressionally
mandated limits on habeas petitions. Accordingly, the
district court properly concluded that the doctrine of
equitable tolling was not applicable in Lo’s case.
Because we find that Lo’s petition for habeas review
is time-barred, we need not address the merits of the
alleged due process violation.
III. Conclusion
For the foregoing reasons, we AFFIRM the decision of
the district court dismissing Lo’s petition as untimely.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-26-07