Elliot Ray v. Marc Clements , 700 F.3d 993 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3228
E LLIOT D. R AY,
Petitioner-Appellant,
v.
M ARC C LEMENTS,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:07-cv-00190-WCG—William C. Griesbach, Judge.
A RGUED A PRIL 20, 2012—D ECIDED N OVEMBER 19, 2012
Before B AUER, M ANION, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. In Elliot Don Ray’s first
federal habeas appeal we found that his constitutional
rights were violated when the state introduced out-of-
court statements made by individuals who did not
testify at his murder trial. But we remanded to give the
state the opportunity to assert a defense that Ray’s state
post-conviction motion was untimely. Ray v. Boatwright
(Ray I), 592 F.3d 793, 798-99 (7th Cir.), as amended (Apr. 1,
2 No. 11-3228
2010). On remand, and after an evidentiary hearing, the
district court placed the burden of proving timeliness on
Ray, finding that he did not timely give his state post-
conviction motion to a prison official for mailing, and
dismissed the petition.
On appeal, Ray argues that the district court erred by
placing the burden of proof on him, by not requiring
the state to put forth an affirmative case of untimeliness,
and by not applying the mailbox rule, which supported
his position that his state post-conviction motion had
been “properly filed” for the purpose of tolling AEDPA’s
limitations period. The state asserts that the mailbox
rule does not apply because the state procedural rule
under which Ray challenged his conviction does not
have a timeliness requirement, and even if the mailbox
rule does apply, the petitioner—not the state—bears the
burden of proof, and that Ray did not carry his burden.
We disagree and adopt the rule set forth by the majority
of our sister circuits that the prisoner mailbox rule
governs whether a state post-conviction document is
“properly filed” under the AEDPA limitations period
unless the state has clearly rejected it. Because Wisconsin
has not clearly rejected it, the mailbox rule applies
in this case.
Having so found, we address the second issue, which
is who has the burden of proof. Where a pro se prisoner’s
filing is not received by the state court, the habeas peti-
tioner must produce some evidence to support his
sworn statement of timeliness, and if this showing is
made, the burden shifts to the state to prove untimeliness.
No. 11-3228 3
Applying these rules to this case, we find that the state
failed to present competent evidence contradicting
Ray’s testimony and documents showing that he timely
gave his state post-conviction motion to a prison official
for mailing. The district court’s finding of untimeliness
was clearly erroneous because it ignored this lack of
evidence and was based on nothing more than con-
jecture and speculative doubt, allowing the state’s
conclusory arguments to carry the day. We therefore
reverse and remand with instructions to grant Ray’s
habeas petition unless the state elects to retry him
within 120 days.
I. BACKGROUND
As we detailed more thoroughly in our previous
opinion, Ray was convicted in Wisconsin on state
counts of reckless homicide, party to a crime, and reck-
lessly endangering the safety of another. Ray I, 592 F.3d
at 794-96. His conviction resulted from a retaliatory
shooting on 29th Street in Milwaukee, Wisconsin that
left an eleven-year-old girl dead and two other people
injured. At Ray’s criminal trial, the state called Detective
Daniel Phillips to describe a signed statement that
Ray gave during his interview with police. The detec-
tive primarily read from Ray’s statement. But he also
recounted his own out-of-court statements informing
Ray that two co-actors had implicated Ray in the shoot-
ings. Detective Phillips testified:
Ray was then confronted with numerous state-
ments made by co-actors that they were present
[at the] shooting on 29th Street and so was Ray.
4 No. 11-3228
Ray then stated “those stupid niggers shouldn’t
be talking and they can’t talk for me.”
When confronted with statements by [Miriam
Myles] that Ray was shooting a nine-millimeter
on 29th Street [and] in a statement by Sylvester
Townsend . . . that Ray had a .45-caliber pistol[,]
Ray then said “tell me which gun killed the
girl and I’ll tell you everything.”
Neither Miriam Myles nor Sylvester Townsend testi-
fied during Ray’s trial. But defense counsel did not object
to this incredibly damaging testimony. After his con-
viction, Ray raised five issues on direct appeal, including
a claim that Detective Phillips’s testimony violated his
right to be confronted with the witnesses against him.
The state appellate court ignored this claim, decided
that Detective Phillips’s testimony was not hearsay
because it was not offered to prove the truth of the
matter asserted, and affirmed Ray’s conviction. The
Supreme Court of Wisconsin denied Ray’s petition for
review on June 12, 2003.
Ray then sought state post-conviction relief under
Wisconsin Statute section 974.06. That statute provides:
“After the time for appeal or postconviction remedy . . . has
expired, a prisoner in custody . . . claiming the right to
be released upon the ground that the sentence was im-
posed in violation of the U.S. constitution . . . may
move the court which imposed the sentence to vacate, set
aside or correct the sentence.” Wis. Stat. § 974.06(1).
Importantly, a section 974.06 motion for relief “is part of
the original criminal action, is not a separate proceeding
No. 11-3228 5
and may be made at any time.” Id. § 974.06(2). Ray’s
request for relief under section 974.06 was eventually
denied on October 16, 2006.
Ray filed two separate pro se petitions for writ of
habeas corpus in the federal district court on February 28,
2007. The district court summarily dismissed Ray’s peti-
tions, exercising its authority under Rule 4 of the
Rules Governing Section 2254 Cases,1 finding that Ray
did not set forth a cognizable constitutional or federal
law claim. But the court granted Ray’s request for a
certificate of appealability to resolve Ray’s confrontation
clause claim. On appeal, we held that “the evidence
presented by the prosecution delivered to the jury state-
ments by named co-actors, not available for cross-exam-
ination, accusing Ray of the very crimes with which
he stood charged” and “the evidence was a clear viola-
tion of Ray’s constitutional right of confrontation.” Ray I,
592 F.3d at 795-96. The state petitioned for rehearing
en banc, raising a timeliness defense. We denied the
petition, but on April 1, 2010 we issued an amended
opinion remanding this case to the district court “so that
the government may have an opportunity to develop the
record on this issue” because the record contained “no
1
Rule 4 “enables the district court to dismiss a petition sum-
marily, without reviewing the record at all, if it determines
that the petition and any attached exhibits either fail to state a
claim or are factually frivolous.” Small v. Endicott, 998 F.2d
411, 414 (7th Cir. 1993). Under this procedure, the govern-
ment might not learn about the petition until a certificate
of appealability is granted.
6 No. 11-3228
evidence . . . to support the government’s assertion” of
untimeliness. Id. at 799.
On remand, the district court held a status conference
to decide how to proceed. The state did not request
additional discovery or alert the district court of any
difficulties it had experienced in obtaining relevant
evidence. The state filed a motion to dismiss Ray’s
petition as untimely. Ray countered with a motion for
summary judgment. After reviewing the parties’ briefs,
the district court denied both motions, scheduled an
evidentiary hearing, and ordered Ray to testify in sup-
port of his claim that “the mailbox rule exception to the
statute of limitations defense applies.” The court also
ruled that Ray bore the burden of proving that his
petition was timely.
The record before the district court, as it existed prior
to the evidentiary hearing, included Ray’s sworn
affidavit detailing his claim that on April 27, 2004 he
gave his section 974.06 motion to Ms. Tamara Smith, a
Diamondback Correctional Facility social worker. Ray
averred that he gave Ms. Smith the motion, with prepaid
postage, for mailing to the Wisconsin Circuit Court
of Milwaukee County. He maintained that Ms. Smith,
in turn, gave him two receipts: a “Certificate of Service
by Mail” receipt, which he signed, and a “CCA Privileged
Correspondence Receipt,” 2 which she signed. Ray’s
affidavit also described his efforts to obtain informa-
tion from Ms. Smith regarding the processing of his mail.
2
CCA” refers to Corrections Corporation of America.
No. 11-3228 7
On June 1, 2004 and September 9, 2004, Ray wrote letters
to Ms. Smith asking her to verify that she sent his
section 974.06 motion to the court. He then wrote her a
third letter on June 15, 2005, requesting the same infor-
mation. Finally, according to Ray, after not hearing
back from Ms. Smith, he sent a notarized letter to the
Milwaukee clerk of court on October 4, 2006 to determine
the status of his motion. The court informed Ray that it
had no record of his post-conviction motion ever being
filed, so he immediately submitted a supplemental pro se
motion, which the court denied on October 16, 2006.
The pre-evidentiary-hearing record contained no evi-
dence contradicting Ray’s sworn testimony.
On July 28, 2011, the district court held an evidentiary
hearing. Before beginning, the court clarified that even
though the general rule is that the party asserting an
affirmative defense, like untimeliness, bears the burden
of proving the defense, Ray had invoked an exception
to the defense so the burden rested with him to prove
that the exception applied. The court noted that Ray
“has made the required presentation of sufficient
evidence . . . to conclude that he has raised [the mailbox
rule] issue. . . . [T]he state disputed it, not based on
specific facts but inferentially, they argued that the evi-
dence he has supporting his position is not credible.
I have concluded that we need a factual hearing on
that.” The hearing, according to the court, was con-
ducted to “assess [Ray’s] credibility.”
The evidentiary hearing began with testimony from
Corrections Officer John T. Nedbal. He worked in the
library of New Lisbon prison, where Ray was incar-
8 No. 11-3228
cerated when he allegedly lost the signed CCA receipt
after giving it to the prison library staff for photocopy-
ing. Officer Nedbal quoted the library policy as requiring
inmates to “identify[] material to be copied,” which he
understood to mean that inmates were expected to
describe precisely what they wanted copied. Officer
Nedbal testified that he would “look [] over” the descrip-
tions and instructions provided by the prisoner and then
“send it to . . . get their copies,” but if he noticed anything
“suspicious” about the materials submitted he would talk
to the prisoner and contact a supervisor if necessary.
Officer Nedbal explained that he was only permitted to
“glance” at a prisoner’s “legal stuff,” so he did not read
prisoners’ legal materials. He stated that he had “glanced
at” the disbursement form Ray provided with his copy
request. That form contained a “reason for request sec-
tion,” in which Ray wrote, “Two copies of a Corrections
Corporation of America Privileged Correspondence
Receipt form.”
On cross-examination, Officer Nedbal explained that
Ray’s copies were, to his knowledge, the first requested
copies that had ever been lost during the three years
that he worked in the library. He agreed that the only
basis for believing that the copies had been lost was
Ray’s claim that he did not receive them. Other than
the “photocopy request,” which served as a de facto
receipt for prisoners and the prison, Officer Nedbal had
no other means of verifying that Ray’s original document
and requested copies had never been delivered.
Ray then called Lynn Martin to testify. Ms. Martin
served as the librarian at New Lisbon since the fall of
No. 11-3228 9
2007. She explained that she would have screened the
documents that Ray submitted for photocopying and
flagged anything that looked suspicious for a supervisor’s
review. According to Ms. Martin, if the materials “went
over to be copied” then she did not notice anything
suspicious about them. Ms. Martin admitted that she
was not aware of any other prisoner’s copies being lost,
but she said that the only way the library would know is
if the “inmate came and let us know.” In her opinion,
the prison would not have taken steps to look for the
copies—including circulating an internal memo, and
interviewing individuals who were responsible for
the copying—if Ray’s copies had never been made.
Ms. Martin stated that she checked the “lost in mail”
option on an information request form she received
because she believed that the photocopies were made
and there was no evidence that Ray actually received them.
During her cross-examination, Ms. Martin explained
that she would identify a document as suspicious if it
“had someone else’s name on it,” but she also looked at
“various other” indicators of suspiciousness. She said
she believed Ray’s documents were lost because his
request was not flagged as suspicious and he claims to
have never received the documents. The prison did not
have an internal tracking procedure to verify receipt of
requested copies, nor did it require prisoners to sign
any type of receipt upon delivery. Looking at library
records, Ms. Martin confirmed that an inmate with the
initials “A.S.” completed Ray’s photocopy request on
April 19, 2010. Finally, Ms. Martin testified that Ray
had previously worked in the library between February
and September 2008.
10 No. 11-3228
On redirect, Ms. Martin corroborated Officer Nedbal’s
statement that prisoners were required to detail what
they wanted copied, not just the number of copies they
were requesting or their preference for how the copies
would appear (e.g., double-sided, scaled, etc).
The state solicited testimony from Michelle Highley, a
financial specialist at Green Bay Correctional Institu-
tion since September 2009. Her responsibilities included
maintaining records on inmates’ trust accounts. Inmate
trust accounts show purchases made during incarcera-
tion. Ms. Highley testified that Ray’s account did not
show any purchases between April 1 and June 14, 2004,
so if he sent mail during that period, as he claims
he directed Ms. Smith to do, he did not purchase the
envelopes or postage from the prison’s “commissary.”
Ms. Highley conceded, on cross-examination, however
that Ray might have purchased those items before April 1,
borrowed stamps and envelopes from other inmates,
or received them by mail from family members. On
redirect, Ms. Highley testified that Ray had been trans-
ferred to Green Bay Correctional Institution on April 30,
2004 and he had “zero” dollars “cash on arrival.”
Ms. Highley did not dispute that he might have
previously purchased stamps or obtained them by al-
ternative means.
Ray served as the final witness at the evidentiary hear-
ing. He began by reaffirming the veracity of his previously
submitted affidavit. He explained that in April 2004
he was incarcerated at the Diamondback Correction
Facility in Oklahoma. Diamondback did not have a sepa-
No. 11-3228 11
rate system for legal mail; inmates could give legal mail
to the prison officials or put it directly in the regular
mail. Ray explained that on April 27, 2004 he did not
have access to the regular mail system because his
prison unit was on “administrative confinement,” so
prisoners were prohibited from leaving the unit. During
lunchtime, Ms. Tamara Smith, one of the prison’s social
workers, “came in the unit.” Seeing Ms. Smith, Ray
“stopped eating went upstairs to [his] cell, grabbed
[his] . . . manila envelope with [his section] 974.06
[motion] in it and brought it downstairs” to give it to
her. After telling Ms. Smith that he needed her to send
“legal mail” on his behalf, Ray and Ms. Smith went into
“the social worker office” where she proceeded to
look through the cabinets before finding and giving
Ray two forms to complete. The first form, according
to Ray, was a certificate of service by mail. The second
was a CCA privileged correspondences receipt, which
Ms. Smith allegedly signed.
Ray testified that he had been relying on fellow
inmates for help with his legal affairs and that he did not
produce the CCA receipt initially because one of those
inmates had it when the inmate was transferred to
another prison. Ray testified that, relying on the advice
of other inmates, he only followed up with Ms. Smith—and
not the state court directly—because he was concerned
that the court might get irritated and summarily dismiss
his petition. Ray allegedly sent Ms. Smith three letters
to obtain information about his post-conviction motion,
the first on June 1, 2004, the second on September 9, 2004,
and the last on June 15, 2005. He retained copies of each.
12 No. 11-3228
But after not hearing back from Ms. Smith for nearly
two years, Ray decided to contact the state court directly.
He claims to have waited so long because he thought
there might have been some sort of delay in his mail
reaching Ms. Smith: “staff members in other institutions . . .
[t]hey get a letter . . . from an inmate, they’ll put it to
the side until they keep piling up. . . .” So in October 2006,
Ray sent a notarized letter to the Circuit Court of Mil-
waukee County requesting information about the status
of his section 974.06 motion. After being informed that
no such motion was received or pending, Ray filed a
supplemental section 974.06 motion, which the court
denied on October 14, 2006. Ray subsequently sent
Ms. Smith a letter on November 1, 2006 asking about
his original motion and explaining that the court had
never received it. He also wrote the warden to
complain about Ms. Smith’s mishandling of his mail.
According to Ray, after we issued our opinion in
April 2010, he began reaching out to try to find the
inmate who had his CCA receipt. After finally tracking
down the receipt, Ray sought to make copies for
himself and his recently retained attorney. However, the
prison library failed to deliver his requested copies and
did not return his original document. So Ray sought
advice from Ms. Martin. She apparently knew about
Ray’s case because she “call[ed] him down to the library to
show” him on “LexisNexis the decision” we issued in
April 2010. Ray explained to Ms. Martin that he thought
it was extremely important to find the document.
The state confronted Ray with Diamondback’s “Com-
munication Mail and Visiting” policy, which had been
No. 11-3228 13
in effect during April 2004. Section 6(a) of the policy
states: “All inmate mail will be processed through
the institutional mailroom. No person, either staff or
visitors, is permitted to bring in or take out any mail or
article for an inmate.” Ray maintained that he could
not take mail to the mailroom because his unit was
on administrative confinement, and despite the written
policy, inmates were allowed to give mail to the prison
officials. Although the policy said nothing about receipts
for outgoing privileged mail—but it did describe such
receipts for “incoming” correspondences—Ray swore
that Ms. Smith gave him a receipt for his outgoing mail.
Pointing to the prison mail logs to buttress his claim,
Ray testified that all outgoing legal mail was supposed
to be logged, prisoners do not have access to the mail
logs, and the prison refused to produce (or submit into
evidence) logs from the relevant dates, including the
date he gave his motion to Ms. Smith.
The district court offered both sides an opportunity to
make closing arguments. Ray’s counsel summarized
Ray’s evidence and argued that “[f]or the State to prevail
in this situation, you have to believe that in October 2006,
Mr. Ray had figured out . . . AEDPA and the tolling
provisions . . . then began to manufacture evidence in
2006 . . . to deal with the federal petition that had not
even been filed assuming that a State petition, which
he had just found out had not been received, was going
to be denied. It is an extraordinary amount of prescience
on the behalf of Mr. Ray who, until recently, did not
even have his [general equivalency diploma].”
14 No. 11-3228
The state closed by raising a series of questions about
Ray’s version of the events. It began by refuting a sug-
gestion by Ray’s counsel that it had been derelict in
obtaining evidence from Diamondback. Counsel ex-
plained, “I have made numerous phone calls to CCA . . .
[and have been] met with voicemails and unreturned
calls for months now. I have done everything that I can
think of to do to get more information from CCA on
what their policies were.”
The state then argued that Ray is “a very bright indi-
vidual” and “it strains credibility” to believe that he
could not understand AEDPA’s statute of limitations.
Counsel continued, “So I do not think that it is beyond
the realm of possibility that . . . Mr. Ray learned of the
one year time limit, learned that he had passed it and
started with his collateral stuff and then at some point
made these letters . . . .” The state’s attorney further
argued that “it seems incredible” that Ray would give
Ms. Smith his section 974.06 motion right before he
was going to be transferred to Wisconsin, and that “a
Privileged Correspondence form would be given to an
inmate in outgoing mail” and “a Certificate of Service . . .
would be, you know, full of spelling and grammatical
errors.” Counsel repeatedly stated that Ray’s evidence
“does not make a lot of sense,” especially “given
Diamondback’s policy, where it clearly states that mail
is not to be given to staff members.” Before concluding,
the state’s attorney reiterated that Ray has “shown
through many filings that he is clearly a bright and
capable individual” and “I do not think that these sup-
posedly arcane rules of habeas corpus are lost on
No. 11-3228 15
him” because AEDPA “is not that complex” and “many
prisoners, and certainly Mr. Ray” are capable of under-
standing the statute. Finally, counsel in closing stated:
We know only from Mr. Ray that the copies
were missing or supposedly missing. We do not
know what was copied. No one knows what
was copied. The only statement about what was
copied comes from Mr. Ray.
The fact that he transferred between five prisons
in however many years and suddenly came
upon this form that was some sort of smoking
gun that he did not give to his attorney but
instead gave to prison officials, I just find all of
that incredible.
Hr’g Tr., 113-20, July 28, 2011.
On August 23, 2011, the district court issued an
order dismissing Ray’s habeas petition as untimely. The
court found that “Ray’s version of the events concerning
the filing of his state motion for post-conviction relief
is not credible.” The court’s decision closely paralleled
the state’s closing argument. Its findings were based on
the following: (1) Ray allegedly gave Ms. Smith his
motion “when he knew he was on his way back to Wis-
consin in a matter of days”; (2) Ray waited until October 4,
2006, to ask the clerk of the court” for information
about his motion; (3) Ray failed to take any action other
than sending Ms. Smith “nearly identical” letters; (4) the
“somewhat curious” nature of Ray “retain[ing] a copy of
a letter he sent only a month after he handed Smith
16 No. 11-3228
his motion for postconviction relief, but [he] did not
retain a copy of the motion itself”; (5) Ray’s certificate
of service “bears no signatures, other than Ray’s, and
appears on plain white paper with no heading or other
indication that it is an official prison form . . . [and]
[e]ven when compared with the official property request
form from Ray’s file, which also lacks an institutional
heading and contains a grammatical error . . . the certificate
looks more like the work product of a prisoner than a
prison administration”; and (6) Ray’s “knowledge of not
only the one-year limitations period for federal habeas
petitions, but also the mailbox rule and the rules
governing tolling of the one-year period” which was
demonstrated by his “two or three boxes of legal materi-
als.” Finally, the district court pinpointed Ray’s claim
that the signed receipt had been lost by the prison:
[I]t is clear that the document Ray handed CO
Nedbal for photocopying could have been a docu-
ment he created in an attempt to manufacture
additional evidence to corroborate his claim that
he handed his § 974.06 motion to Ms. Smith on
April 27, 2004. The detail in which Ray described
the document . . . suggests a purpose beyond a
simple request for a thirty-cent disbursement for
photocopying. . . . [Nedbal’s] signature . . . and
acceptance of the document for copying, under
the circumstances, cannot be reasonably viewed
as proof of what the document was. Having
worked in the library himself, Ray would have
known as much.
No. 11-3228 17
The district court concluded that Ray was not credible,
that he did not carry his burden of proving statutory
tolling, and that his petition was time barred. Ray appeals.
II. ANALYSIS
This appeal raises two questions that we have yet
to resolve in our circuit: first, whether the mailbox rule
applies to toll AEDPA’s one-year limitations period
when a prisoner delivers a Wisconsin section 974.06 post-
conviction motion to a prison official for mailing to
the state court; second, if the mailbox rule applies,
which party bears the burden of proof on the matter of
timeliness when the state court never receives the pris-
oner’s motion. Our review of these unsettled legal issues
is de novo. Simms v. Acevedo, 595 F.3d 774, 777 (7th Cir.
2010). We will then decide if the district court clearly
erred by finding that Ray did not give his section 974.06
motion to Ms. Smith on April 27, 2004 and that Ray’s
federal habeas petition was untimely. See Bintz v. Bertrand,
403 F.3d 859, 865 (7th Cir. 2005).
A. The Mailbox Rule Applies
In Houston v. Lack, the Supreme Court established the
“bright-line rule” that a pro se prisoner files a federal
notice of appeal, a prerequisite to federal appellate juris-
diction, at the moment the prisoner delivers it to a
prison official for mailing to the court. 487 U.S. 266, 275-76
(1988).This rule is colloquially known as the “Houston”
or “prison” mailbox rule. Jones v. Bertrand, 171 F.3d 499,
18 No. 11-3228
500 (7th Cir. 1999). The reasons for its existence are mani-
fold.
For starters, pro se prisoners occupy a unique position
in litigation. Unlike others, pro se prisoners cannot ac-
tively monitor their pending case, they cannot personally
travel to the courthouse to ensure that their filings
have been timely received, and they cannot freely track
their mailings via consistent communication with the
court, or the enlisted mail carrier, to determine if
anything has gone awry. See Houston, 487 U.S. at 270-71.
Instead, a pro se prisoner must almost blindly rely on
“vagaries of the mail” and the scruples of prison offi-
cials. Id. at 271. “And if there is a delay the prisoner
suspects is attributable to the prison authorities, he is
unlikely to have any means of proving it, for his con-
finement prevents him from monitoring the process
sufficiently to distinguish delay on the part of prison
authorities from slow mail service or the court clerk’s
failure to stamp the notice on the date received.” Id.In short, once a pro se prisoner’s filing leaves his
hands he loses control over its processing. Id.Additionally, prisons are (or should be) equipped with
well-developed administrative procedures for “recording
the date and time at which they receive papers for mail-
ing.” Id. at 275. In light of the inherent prison-prisoner
power and information imbalance, prisons should be
able to “readily dispute a prisoner’s assertions that he
delivered the paper on a different date” by referencing
“prison mail logs,” for example, or other reliable indica-
tors of mailing established and controlled by the prison.
Id. “The prison will be the only party with access to at
No. 11-3228 19
least some of the evidence needed to resolve such ques-
tions—one of the vices the general rule is meant to
avoid—and evidence on any of these issues will be
hard to come by for the prisoner confined to his cell,
who can usually only guess whether the prison
authorities, the Postal Service, or the court clerk is to
blame for any delay.” Id. at 276.
Finally, the mailbox rule ensures that justice will be
properly served. See Jones, 171 F.3d at 502. Although
not always, our judicial system does recognize the com-
plexity of our prescriptive procedural rules and we often-
times relax those rigid requirements when a litigant
appears in federal court unrepresented. E.g., Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (“A document
filed pro se is to be liberally construed and a pro se com-
plaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.” (citation and internal quotation marks omit-
ted)); Castro v. United States, 540 U.S. 375, 381-82
(2003) (explaining that federal courts may recharacterize
a pro se litigant’s filing to avoid “unnecessary dis-
missal” and the “inappropriately stringent application” of
labeling requirements, or to better correspond to the
motion’s substance and legal basis). We have also taken
significant steps to ensure that prisoners’ filings are not
subject to the unrestrained whims of prison officials.
See Fed. R. Civ. P. 4(c); see also United States v. Craig, 368
F.3d 738, 740 (7th Cir. 2004) (“Today the mailbox rule
depends on Rule 4(c) . . . , [which] applies to ‘an inmate
confined in an institution’ . . . . A court ought not pencil
‘unrepresented’ or any extra word into the text of
Rule 4(c).”). The mailbox rule further counterbalances
20 No. 11-3228
the heavy weight that our procedural rules have
stacked against pro se prison litigants. In a just judicial
system, a pro se prisoner’s chance of success should not
be inextricably tied to his or her understanding and
familiarity with the nuance of procedure; it should
depend primarily on the substantive merits of the claim
being asserted. The mailbox rule facilitates merits ad-
judication by, under certain circumstances, removing
one—but not all—of the complex procedural hurdles
standing in the pro se prisoner’s way. Because “[n]o
matter how far in advance the pro se prisoner delivers
his notice to the prison authorities, he can never be
sure that it will ultimately get stamped ‘filed’ on time,”
the mailbox rule renders this matter inconsequential in
the interest of justice. See Houston, 487 U.S. at 271.
With the rationale underlying the mailbox rule
squarely in our sights, we must decide as a matter of
first impression whether the rule applies to a Wisconsin
pro se prisoner’s section 974.06 post-conviction motion.
AEDPA requires a federal habeas petition to be filed
within one year from “the date on which the [state]
judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). “The one-year statute
of limitations can be tolled, however, if the petitioner
applies for ‘State post-conviction or other collateral
review’ of the judgment.” Price v. Pierce, 617 F.3d 947,
950 (7th Cir. 2010) (quoting 28 U.S.C. §2244(d)(2)). For
statutory tolling to apply, the state post-conviction
motion must be “properly filed.” 28 U.S.C. § 2244(d)(2).
No. 11-3228 21
That determination is governed by state procedural
law. Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Ray filed his federal habeas petition on February 28,
2007. His state conviction became final on or about Sep-
tember 10, 2003, after the time expired for filing a petition
for writ of certiorari in the Supreme Court for direct
review of the state court’s judgment. See 28 U.S.C.
§ 2244(d)(1)(A); see also Anderson v. Litscher, 281 F.3d 672,
675 (7th Cir. 2002) (“[W]e believe that the ninety day
period during which a petition for certiorari may be
filed by a state prisoner falls within the meaning of
section 2244(d)(1)(A) for purposes of calculating when
the statute of limitations begins to run.”). Given the three-
year time difference between the state court’s final judg-
ment and Ray’s federal filing, Ray’s federal habeas
petition would be time barred absent tolling.3
The state, citing Wisconsin Statute sections 801.16(1)
3
Ray has not invoked the doctrine of equitable tolling, which
can toll AEDPA’s one-year statute of limitations period, but
demands that the petitioner demonstrate “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). The “threshold necessary to trigger equitable
tolling is very high” and the doctrine applies only when
“extraordinary circumstances” outside of the petitioner’s
control prevent timely filing. United States v. Marcello, 212
F.3d 1005, 1010 (7th Cir. 2000). “Equitable tolling . . . asks
whether federal courts may excuse a petitioner’s failure to
comply with federal timing rules, an inquiry that does not
implicate a state court’s interpretation of state law.” Holland
v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2563 (2010).
22 No. 11-3228
and 809.80(3), argues that Ray cannot benefit from the
mailbox rule because Wisconsin requires “actual receipt”
by the court clerk for a document to be “properly filed,”
and Ray’s motion was not actually received before
AEDPA’s limitations period expired. The state also
argues that the mailbox rule should not apply where, as
here, a prisoner’s post-conviction motion may be filed
at any time. The state views section 974.06’s failure
to include a filing deadline as proof that Wisconsin
refuses to apply the mailbox rule in these circumstances.
We do not find the state’s arguments persuasive.
A majority of our sister circuits have held that unless
a state clearly rejects it, the Houston mailbox rule
governs whether a state post-conviction document is
“properly filed” under AEDPA. Compare Campbell v.
Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (California), and
Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009) (Louisiana),
with Howland v. Quarterman, 507 F.3d 840, 844-45 (5th
Cir. 2007) (Texas), and Vroman v. Brigano, 346 F.3d 598, 603
(6th Cir. 2003) (Ohio), and Adams v. LeMaster, 223 F.3d
1177, 1180 (10th Cir. 2000) (New Mexico). But see Fernandez
v. Artuz, 402 F.3d 111, 113-15 (2d Cir. 2005) (“New York’s
rejection of the mailbox rule does not preclude its ap-
plication by a federal court in tolling a federal statute of
limitations.” (emphasis original)); Anthony v. Cambra, 236
F.3d 568, 575 (9th Cir. 2000) (“the mailbox rule
applies with equal force to the filing of state as well
as federal petitions”). Two recent but divergent Fifth
Circuit cases illustrate this point. In Stoot, the Fifth
Circuit held that even though the Louisiana Supreme
Court had not considered the precise issue of whether
the mailbox rule applies when a pro se prisoner’s
No. 11-3228 23
pleading is mailed but not received, the state’s top
court “has adopted the holding and reasoning of Hous-
ton,” so the rule extended to that case. 570 F.3d at 671.
Stoot is distinguishable from the Fifth Circuit’s earlier
decision in Howland because Texas, the relevant state
there, unlike Louisiana, had clearly rejected the
mailbox rule. 507 F.3d at 844-45. The thread weaving
these disparate outcomes together is the manner in
which the underlying state’s procedural law treats pro se
prisoners’ post-conviction filings. See Artuz, 531 U.S. at 8.
We agree with the majority of our sister circuits and
hold that the mailbox rule applies to a state pro se pris-
oner’s post-conviction filings unless the state where the
prisoner was convicted has clearly rejected the rule.
Wisconsin procedural law is at issue here, and we
think it is clear that Wisconsin has fully embraced the
Houston mailbox rule. First, Wisconsin does not require
“actual receipt” for a post-conviction motion to be
deemed properly filed. The state’s principal citation,
Wis. Stat. § 801.16(1), simply states that court filings
“shall be made by filing them with the clerk of circuit
court.” And Wisconsin Statute section 809.80(3), which
says that the court clerk must “receive” a filing before
the applicable deadline for it to be “timely,” does not
apply to pro se prisoners. See Wis. Stat § 809.80(3)(e).
Instead, a pro se prisoner’s petition is filed “on the
date that the confined person delivers a correctly ad-
dressed petition to the proper institution authorities
for mailing,” provided that the prisoner files a “certifica-
tion or affidavit setting forth the date on which the
24 No. 11-3228
petition was delivered to the proper institution
authorities for mailing.” Id.
Second, the Supreme Court of Wisconsin made its
endorsement of the Houston mailbox rule abundantly
clear in State v. Nichols, 635 N.W.2d 292, 295-96 (Wis.
2001). In that case, the court, persuaded by Houston’s
rationale, applied the mailbox rule to a pro se prisoner’s
state certiorari action. Id. at 298 (“We are persuaded by
the rationale in Houston”). It doing so, the court
explained that it was not “mandat[ing] any particular
procedure that [pro se prisoner] litigants must follow,”
but “a certificate of service or affidavit of mailing . . .
would create a rebuttable presumption that the prisoner
had delivered his or her petition to the proper prison
authorities on the particular day certified.” Id. at 299.
The state dismisses Nichols because it addressed
tolling the time for petitioning the state supreme court
for review after an appellate court’s affirmance. The
state correctly notes that section 974.06 motions are not
subject to any time requirements, but this does not mat-
ter. All of the concerns animating the Supreme
Court’s decision in Houston and the Supreme Court of
Wisconsin’s decision in Nichols apply with equal force to
pro se prisoner filings not subject to a time requirement.
A pro se prisoner’s unique litigation disadvantages do
not disappear when filing deadlines are eliminated.
Ray’s situation provides a perfect case in point—although
he fully complied with section 974.06, the state has at-
tacked his federal habeas petition as untimely. Notwith-
standing Wisconsin’s generous acceptance of section 974.06
No. 11-3228 25
post-conviction motions at any time, there are practical
(and in this case drastic) consequences for not filing
the motion within one year of the final judgment.
Suppose it was undisputed that Ray gave his post-
conviction motion to a prison official within AEDPA’s one-
year time frame but the state court received the docu-
ment one year and one day later due to some honest
oversight in the prison mail system. Accepting the
state’s position would leave Ray without a federal
forum to collaterally attack his conviction, unless he
could prove his entitlement to equitable tolling. Statu-
tory tolling would offer no reprieve because without the
benefit of the mailbox rule, Ray’s state motion was not
“properly filed” within AEDPA’s one-year period.
The state is comfortable with this result because sec-
tion 974.06 itself imposes no filing deadline. But we
are not. In our hypothetical, Ray’s inability to control and
monitor his mailings would be the reason for his habeas
misfortune. The Supreme Court established the Houston
mailbox rule to obviate such objectionable outcomes.
The gravamen of the state’s argument is that the mail-
box rule does not apply where a prisoner’s filing is not
subject to a timeliness requirement. The state reasons
as follows: the mailbox rule applies if there is a filing
deadline; Ray could file his state post-conviction at any
time, so the mailbox rule does not apply to Ray’s filing.
We reject this reasoning. Just because a pro se prisoner
can benefit from the mailbox rule to statutorily toll
AEDPA’s one-year period if a state filing is subject to a
deadline, it does not follow that the rule cannot apply
26 No. 11-3228
where the state imposes no such deadlines. A time limit
is only one “condition to filing” that a pro se prisoner
must abide to statutorily toll AEDPA with a “properly
filed” state post-conviction pleading. See Allen v. Siebert,
552 U.S. 3, 6 (2007) (“Whether a time limit is juris-
dictional, an affirmative defense, or something in
between, it is a ‘condition to filing’—it places a limit on
how long a prisoner can wait before filing a postconvic-
tion petition.” (citation omitted)). And the question of
whether a petition is “properly filed” remains a matter
of interpreting a federal statute. See Holland, 130 S. Ct.
at 2563. We defer to a state court’s interpretation of its
own procedural rules out of respect for the principles
of federalism. But the absence of state-imposed condi-
tions to filing under state law does not prevent us
from recognizing a document as “properly filed” under
AEDPA as a matter of federal law. See, e.g., Sulik v. Taney
Cnty, 316 F.3d 813, 815 (8th Cir. 2003) (holding that
Houston “applies regardless of the length of the limitation
period”); Lewis v. Richmond City Police Dep’t, 947 F.2d
733, 736 (4th Cir. 1991) (holding that the Houston
mailbox rule “provides that a statute of limitations has
the same practical effect on every pro se prisoner litigant
it governs” and “[t]he length of the time restriction in-
volved is irrelevant”).
Many courts, including the Supreme Court, have con-
sistently conveyed concerns about the pro se prisoner’s
unique litigation disadvantage, including his inability
to control and monitor documents that he sends to the
court. E.g., Houston, 487 U.S. at 270-71; Jones, 171 F.3d
at 500-01. As one means of addressing these concerns,
No. 11-3228 27
we will apply the mailbox rule to a prisoner’s state post-
conviction filings unless the state has clearly rejected
the rule. Because the Wisconsin Supreme Court held in
Nichols that the mailbox rule operates to “file” a pro se
prisoner’s court document when the prisoner delivers
it to a prison official for mailing, that pronouncement
governs. Nichols, 635 N.W.2d at 298. Ray, therefore, can
rely on the Houston mailbox rule to statutorily toll
AEDPA’s limitations period, even though Wisconsin
permits section 974.06 post-conviction motions to be
filed at any time.
B. The State Bears the Burden of Proving Untimeliness
Having decided that the Houston mailbox rule applies,
we turn to the burden of proof. It is well-settled that
AEDPA’s statute of limitations is a nonjurisdictional
affirmative defense. Day v. McDonough, 547 U.S. 198,
205 (2006). Generally, the party raising an affirmative
defense bears the burden of proof. See Gildon v. Bowen, 384
F.3d 883, 886 (7th Cir. 2004). The same is true in the
habeas context. See id. (“Since the period of limitations is
an affirmative defense, the state has the burden of
showing that the petition is untimely.”). Ray argues that
this axiom should end our inquiry, and that the state
should bear the burden of proving that his federal
habeas petition is untimely. But resolution of this issue
is not so straightforward.
The state identifies two potential problems with
applying the general rule to this case. First, tolling offers
28 No. 11-3228
one way around the statute of limitations and it makes
intuitive sense to require the party requesting tolling
to prove its appropriateness. The state finds support
for this argument in how courts allocate the burden
of proof in cases involving equitable tolling. E.g., Pace,
544 U.S. at 418. Second, in cases like this one, where
a petitioner’s purported filing is never received, the
state would be required to prove a negative: that the
petitioner did not give a prison official his petition
before AEDPA’s one-year limitations period ran.
We believe both concerns are overstated.
It is certainly true that the petitioner bears the burden
of proving “equitable tolling.” Id. But equitable tolling,
as its name suggests, is an appeal to equity. See Holland,
130 S. Ct. at 2563. It is not a matter of statutory inter-
pretation. As is almost always the case, the party seeking
equity must prove its entitlement to equity. See, e.g.,
Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204,
233 (2002) (Ginsburg, J., dissenting) (“As courts
in the common-law realm have reaffirmed: ‘Principles of
equity, we were all taught, were introduced by Lord
Chancellors and their deputies . . . in order to provide
relief from the inflexibility of common law rules.’ ” (citation
omitted)); Keystone Driller Co. v. Gen. Excavator Co., 290
U.S. 240, 244-45 (1933) (“The governing principle is ‘that
whenever a party who, as actor, seeks to set the judicial
machinery in motion and obtain some remedy, has
violated conscience, or good faith, or other equitable
principle, in his prior conduct, then the doors of the
court will be shut against him in limine . . . .’ ” (citation
omitted)); see also Robertson v. Simpson, 624 F.3d 781, 784
No. 11-3228 29
(6th Cir. 2010) (“The party seeking equitable tolling
bears the burden of proving he is entitled to it.”).
Statutory tolling, however, is quite different. Equity is
not involved, and blameworthiness is not relevant. See
Holland, 130 S. Ct. at 2561-62 (describing § 2244(d)(2)
tolling as of “a different kind” than equitable tolling).
Regardless of how diligent or dilatory a federal habeas
petitioner might be, AEDPA’s “one-year clock is
stopped . . . during the time the petitioner’s ‘properly filed’
application for state postconviction relief ‘is pending.’ ”
Day, 547 U.S. at 201 (quoting 28 U.S.C. § 2244(d)(2)).
Equitable tolling can be invoked only after a finding or
concession that the one-year period has expired. See
Cross v. Sisto, 676 F.3d 1172, 1175-76 & n.2 (9th Cir.
2012). So placing the burden on the party requesting
equitable tolling is functionally equivalent to first
finding that the federal petition is untimely and then
requiring the petitioner to prove that “equity” should
except or excuse such untimeliness. In this way, the
burden is rightfully on the petitioner, as the party
seeking application of an equitable exception to the
timeliness rule. Cf. Knox v. Cook County Sheriff’s Police
Dep’t, 866 F.2d 905, 907 (7th Cir. 1988) (“While the statute
of limitations is an affirmative defense, the burden of
establishing an exception thereto is on plaintiff.”).
Our section 2244(d)(2) statutory tolling inquiry is one
step removed from equitable tolling. It tells us which
days count toward the one-year limitations period. As
the statute itself puts it, the “time” that a properly filed
petition “is pending shall not be counted” toward
AEDPA’s limitations period. 28 U.S.C. § 2244(d)(2). We
30 No. 11-3228
think the state should have to prove that each of the
365 days it relies on for its affirmative defense
actually qualifies as a “countable” day under the stat-
ute. See Fleming v. Evans, 481 F.3d 1249, 1257 (10th Cir.
2007) (“The state bears the burden of proving that the
AEDPA limitations period has expired.”); Griffin v.
Rogers, 308 F.3d 647, 653 (6th Cir. 2002) (“[T]he party
asserting statute of limitations as an affirmative
defense has the burden of demonstrating that the statute
has run.”). We are particularly persuaded by the fact
that a petitioner “cannot bring a federal habeas claim
without first exhausting state remedies—a process that
frequently takes longer than one year,” so Congress, in
enacting section 2244(d)(2)’s statutory tolling provision,
explained “how the limitations statute accounts for the
time during which such state proceedings are pending.”
Holland, 130 S. Ct. at 2562. And “[t]o provide accurate
information about prior state court proceedings, most
habeas petitioners are forced to rely on state court
records . . . , [and it] is not the petitioner, but rather the
state that is in the best position to provide this informa-
tion.” Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084, 1088
(10th Cir. 2008); see also R. Governing § 2254 Cases 5(d)
(requiring a state to file, along with its answer, copies
of “the opinions and dispositive orders of the appellate
court relating to the conviction or the sentence”).
Traditionally, courts have placed the burden of proof
on the party in the best position to prove its case. See, e.g.,
Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461,
494 n.17 (2004) (“Among other considerations, alloca-
tions of burdens of production and persuasion may
No. 11-3228 31
depend on which party—plaintiff or defendant, petitioner
or respondent—has made the ‘affirmative allegation’ or
‘presumably has peculiar means of knowledge.’ ” (citation
omitted)). This principle of practicality has roots in com-
mon law. See United States v. Cont’l Ins. Co., 776 F.2d
962, 964 (11th Cir. 1985) (“[we adhere] to the common
law guide that the party in the best position to present
the requisite evidence should bear the burden of
proof”). And it just “makes sense to place at least some
of the burden on the parties with the best access to the
information.” Saleem v. Keisler, 520 F. Supp. 2d 1048, 1059
(W.D. Wis. 2007). So “all else being equal, the burden [of
proof] is better placed on the party with easier access to
relevant information.” Nat’l Commc’n Ass’n Inc. v.
AT&T Corp., 238 F.3d 124, 130 (2d Cir. 2001). In the
habeas context, the state is in the best position to prove
that the limitations period has run. It will “usually be
able to meet this burden by pointing to materials already
before the district court, namely, by pointing [to] the
petition itself,” or by presenting evidence that it can
easily access from the prison. See Griffin, 308 F.3d at 653.
When questions about AEDPA’s statutory tolling
arise, many of our sister circuits have employed a
“burden shifting” framework requiring the petitioner to
make a threshold evidentiary showing before shifting the
burden of proof to the state. E.g., Allen v. Culliver, 471
F.3d 1196, 1198 (11th Cir. 2006) (per curiam) (requiring
petitioner to make a prima facie showing of delivery
before shifting the burden to the state); Caldwell v. Amend,
30 F.3d 1199, 1203 (9th Cir. 1994) (same); see also Grady
v. United States, 269 F.3d 913, 916 (8th Cir. 2001) (“[u]nder
32 No. 11-3228
our jurisprudence, then, a prisoner seeking to benefit
from the prison mailbox rule must satisfy the require-
ments of Rule 4(c)”). Today, we follow their lead. If the
state raises an AEDPA statute of limitations defense,
the petitioner must come forward with some evidence
to support his claim that, with the benefit of the
Houston mailbox rule, 365 countable days have not
elapsed from the time his state-court judgment became
final to the time he filed his federal habeas petition. See
Allen, 471 F.3d at 1198. After the petitioner makes this
evidentiary showing, the burden shifts to the govern-
ment to prove that the limitations period has run. See id.The state argues that the burden shifting framework
is inappropriate in cases like this one, where the court
never receives the prisoner’s purported filing. The Fifth,
Ninth, and Eleventh Circuits have each confronted this
issue. See Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir.
2001); Allen, 471 F.3d at 1198; Stoot, 570 F.3d at 671. Not
one has abandoned the burden shifting framework
under similar circumstances. To the contrary, they
each have applied the usual framework, limiting the
petitioner’s burden to that of making a threshold evi-
dentiary showing of timely delivery to a prison official
regardless of whether the purported filing was received
by the court. Allen, 471 F.3d at 1198. After the
petitioner makes this showing, ordinarily via a sworn
declaration or notarized statement, the burden shifts to
the state to prove untimeliness. E.g., Huizar, 273 F.3d
at 1223-24; Allen, 471 F.3d at 1198.
In Huizar, the petitioner gave prison officials his state
habeas petition for mailing. He wrote to the state court
No. 11-3228 33
to get an update about two months later, but received
no response. Twenty-one months later, he wrote again.
In his second letter, he detailed his previous attempt to
file his petition and requested that the court investigate
the matter. One month later, the petitioner received the
court’s response informing him that his petition had
never been received. The petitioner then filed a supple-
mental petition, which the court denied. The case
required the Ninth Circuit to decide for the first time
whether the mailbox rule “applies if the petition is never
received or filed by the court.” Huizar, 273 F.3d at 1222.
The petitioner argued that the “period from the date
he gave his first state petition to prison officials . . . to the
date it was denied . . . does not count toward AEDPA’s one-
year period.” Id. at 1223 (emphasis added). Agreeing
that Houston’s “rationale applies with equal force” in
cases where the court does not receive the purported
filing, the Ninth Circuit held that “[a] prisoner who
delivers a document to prison authorities gets the
benefit of the prison mailbox rule, so long as he diligently
follows up once he has failed to receive a disposition
from the court after a reasonable period of time.” Id.
at 1224. The court found as a matter of law that twenty-one
months is “not an unusually long time to wait for a
court’s decision,” but remanded the case to the district
court to give the “state . . . the chance to contest” whether
the petitioner “handed over his petition” when he
claimed to have done so. Id.
In Allen, the Eleventh Circuit applied the mailbox
rule despite the fact that the petitioner’s federal notice
of appeal was not received by the court. 471 F.3d at 1198.
34 No. 11-3228
The court disagreed with the Ninth Circuit’s imposition
of a diligence requirement because “[o]nce there has been
a finding of fact that a timely notice of appeal was in
fact delivered to the proper prison authorities . . . , there is
no room . . . for the operation of a diligence requirement.”
Id. It remanded the case, however, so the district court
could “inquire further as to the actual facts concerning
whether . . . a notice of appeal was delivered to the
prison authorities.” Id. In so doing, the Eleventh Circuit
explained that “both Houston and Fed. R. App. P. 4(c)”
suggest that “the burden of proof should be placed
upon the state if Allen files a sworn declaration or nota-
rized statement setting forth the date of deposit and
attesting that postage had been paid.” Id. at 1198-99 & n.2.
Notwithstanding the Ninth and Eleventh Circuits’ split
on the “diligence” requirement, both recognize that
Houston’s rationale supports placing the burden on the
state to prove untimeliness. The Ninth Circuit ap-
pealed to the practical disadvantages and fundamental
unfairness of putting the burden on the prisoner because
“ ‘prison officials may have an incentive to delay pris-
oners’ court filings, and prisoners will have a hard
time proving that the officials did so.’ ” Huizar, 273 F.3d
at 1223 (quoting Houston, 487 U.S. at 270-71). The
Eleventh Circuit found those same factors persuasive.
Allen, 471 F.3d at 1198 n.2 (citing Houston for the proposi-
tion that prisons have procedures in place and can
readily dispute a prisoner’s assertions of delivery). We
agree that the ultimate burden of proof in these cases
should rest with the state because the pro se prisoner
occupies a unique disadvantage, and he cannot control
No. 11-3228 35
or freely monitor documents that he directs to the court.
See Houston, 487 U.S. at 275-76. The burden shifting frame-
work we adopt today reflects the state’s “superior access
to the proof.” Int’l Bros. of Teamsters v. United States, 431
U.S. 324, 359 n.45 (1977) (“Presumptions shifting
the burden of proof are often created to reflect judicial
evaluations of probabilities and to conform with a
party’s superior access to the proof.”). It is also con-
sistent with Congress’s overarching goals for AEDPA,
which includes maintaining federal-state comity,
securing the finality of the judicial process, and expedi-
tiously handling habeas proceedings. As the Supreme
Court recently made clear, AEDPA’s goals are often
well served by empowering district court judges with
discretion to reach the substantive merits of a habeas
petition. Cf. Day, 547 U.S. at 208 (holding that “consider-
ations of comity, finality, and the expeditious handling
of habeas proceedings” are better served by permitting
judges to exercise discretion in each case to decide
whether to sua sponte dismiss on statute of limitations
grounds or reach the merits of the petition).
We pause to address the state’s argument that our
allocation of the burden in this way would require it
to prove a negative. This argument has only superficial
appeal. “Proving a negative” suggests requiring the
state to do the impossible—that is, to exclude the peti-
tioner’s delivery of his filing to a prison official from
the realm of all possibility. But the state is not required
to prove to a statistical certainty that the petitioner
did not hand his document to a prison official on the
date that he claims to have done so, and parties are re-
36 No. 11-3228
quired to make similar showings all the time in litiga-
tion. Indeed, the very merits of a statute of limita-
tions defense depends on a showing that the complainant
did “not” file a lawsuit in time. See, e.g., Kilgore, 519 F.3d
at 1088-89 (“[A] heightened pleading requirement
would be inconsistent with other aspects of the habeas
scheme, which recognize the practical difficulties peti-
tioners face in bringing their claims.”). There can be no
doubt that the state is in a better position to show that
a prisoner did not give his petition to a prison official
for mailing than the prisoner is in to prove that he did.
See Pliler v. Ford, 542 U.S. 225, 232 (2004) (“[Timeliness]
calculations depend upon information contained in
documents that do not necessarily accompany the peti-
tions.”). As the Houston Court emphasized, the pro se
prisoner hands his petition “over to prison authorities
who have well-developed procedures for recording
the date and time at which they receive papers for
mailing and who can readily dispute a prisoner’s asser-
tions that he delivered the paper on a different date.”
Houston, 487 U.S. at 275-76. The state “will be the only
party with access to at least some of the evidence needed
to resolve such questions.” Id. It could, for example,
produce “prison mail logs” or present the (likely non-
adverse) testimony of the prison official who allegedly
handled the prisoner’s mail. As for the pro se prisoner
confined to his cell, “evidence on any of these issues
will be hard to come by” and he can “only guess
whether the prison authorities, the Postal Service, or
the court clerk is to blame for any delay.” Id. This is “one
of the vices the [mailbox] rule is meant to avoid.” Id.No. 11-3228 37
We should not forget that it is the state, vis-à-vis
the prison, that determines how prison mail is handled
in the first place. The state could require its prisons to
implement detailed intake and outgoing procedures
for prisoner mail, including signatures on receipt,
copies of envelopes addressed to the court, or other
mechanisms aimed at closely tracking prisoner mail. We
see no reason why a prison’s failure to institute such
procedures should serve to penalize pro se prison liti-
gants. Instead, it reinforces our belief that “the
prison [should bear] the burden of showing that
the prisoner should not be entitled to the benefits of
Houston’s dispensation.” See Thomas v. Gish, 64 F.3d 323,
325 (7th Cir. 1995). This is so because the prison could, if
it wanted, adopt these or similar procedures. Its failure
to do so leaves the pro se prisoner bearing the risk that
his document will be mishandled, but without the
means of proving his case. Since it has control over the
prison mail policies, control over prisoner mail, and
control over the prisoner himself, the state should bear
the burden of proving that a pro se prisoner’s federal
habeas petition is untimely. See Washington v. United
States, 243 F.3d 1299, 1301 (11th Cir. 2001) (per curiam)
(“[A] prisoner’s pro se § 2255 motion is deemed filed
the date it is delivered to prison authorities for mail-
ing” and “the burden is on prison authorities to prove
the date a prisoner delivered his documents to be
mailed. Absent evidence to the contrary in the form of
prison logs or other records, we will assume [the peti-
tioner’s claim is true].”). To the extent the state feels it
is tasked with “proving a negative,” it can allay
38 No. 11-3228
those concerns by implementing procedures to better
track and document its prisoners’ outgoing mail. See id.
The partial dissent (hereinafter the “dissent”) suggests
that placing the burden on the state is particularly trouble-
some in this case because the prison policy forbade
staff from handling mail for an inmate. (See post at 58-59.)
But this interpretation of prison policy is simply incor-
rect. The policy relied upon by the dissent, “All inmate
mail will be processed through the institutional mailroom.
No person, either staff or visitors, is permitted to bring in
or take out any mail or article for an inmate,” is more
naturally read to mean that mail coming in or out of the
prison cannot be delivered through anything other than the
institutional mailroom (i.e., inmates cannot directly give mail
to visitors for placement into a mailbox outside of prison).
Furthermore, another provision in the same section of
the prison policy expressly provides, “At no time will
an inmate/resident be involved in the collection,
handling, or distribution of mail,” which necessarily
means that staff are responsible for collecting or
handling inmate mail, likely for security reasons. In
any event, the state proffered no evidence to contradict
Ray’s testimony that he was allowed to give outgoing
mail to staff for delivery to the mailroom, which is
entirely consistent with the above interpretation.
We recognize the need to identify some limiting princi-
ple. Otherwise, as the state correctly points out, a pris-
oner’s purported filing might be “properly filed” or
“pending” for years without anyone knowing. To
avoid this, we think the petitioner’s requisite evidenti-
No. 11-3228 39
ary showing should be exacting. The prisoner’s sworn
declaration should identify the who, what, when, where,
how, and why of his alleged delivery to a prison offi-
cial. And in cases where the purported filing is not re-
ceived by the court, the petitioner must supply a
sworn declaration attesting to these facts plus some
other corroborating evidence. This “other evidence” can
be documentary (for example, copies of the filing, post-
marked envelope, or other correspondences). Or, it may
be testimonial. But once the pro se prison litigant
adduces such evidence, he has done all that is required.
The burden then shifts to the state to show untimeliness.
We also reject the Ninth Circuit’s “diligence” require-
ment. We agree with the Eleventh Circuit that a
prisoner’s lack of diligence cannot operate to unfile a
filed document. See Allen, 471 F.3d at 1198. And re-
quiring prisoner diligence is inconsistent with the
spirit of the Houston mailbox rule. The whole point is that
the prisoner is not at liberty to freely monitor his corre-
spondences from mailing to delivery. How might a pris-
oner follow up with the court? With additional mailings?
If prison officials are dead set on preventing a prisoner
from filing court documents, they probably will interfere
with the prisoner’s ability to diligently follow up on
previously sent but not received filings, and if they are
completely incompetent the petitioner’s follow-up mail
will also likely not be delivered. Under either circum-
stance, the diligence requirement would nullify
the rule. We do not accept results so inconsistent
with Houston.
40 No. 11-3228
“[T]he potential for fraud does not justify obligating
truthful prisoners to prove that they mailed their [court
documents] when the prison authorities do not provide
them with means for verification.” Dole v. Chandler,
438 F.3d 804, 813 (7th Cir. 2006) (exhaustion of state
grievance procedures in prisoner § 1983 case). Accord-
ingly, we hold that in cases where the pro se prisoner’s
post-conviction motion is not received, the petitioner
must submit a sworn statement and some evidence to
support his claim that he timely delivered the filing to
a prison official, but once he satisfies this evidentiary
showing, the burden shifts to the state to prove that
his federal habeas petition is untimely.
C. The State Did Not Carry Its Burden
To summarize what we have accomplished so far, the
Houston mailbox rule operates to “file” a pro se prisoner’s
state post-conviction motion under AEDPA’s statutory
tolling provision unless the state has clearly rejected the
rule. This rule applies even if the filing is not subject to
a deadline under state procedural rules and regardless
of whether the petitioner’s purported filing is actually
received by the court. But if the filing is not received, the
petitioner bears the initial burden of identifying (by a
sworn declaration in compliance with Fed. R. App. P. 4(c))
the who, what, when, where, how, and why of his
timely delivery to a prison official and providing some
additional corroborative evidence. Once the petitioner
makes this evidentiary showing, however, the burden
shifts to the state to prove that the federal habeas
No. 11-3228 41
petition is untimely. With these legal issues settled, we
now address the merits of Ray’s appeal.
The district court found that Ray was “not credible” and
that he did not give Ms. Smith his section 974.06 motion
on April 27, 2004. It made this determination despite
Ray’s sworn declaration, live testimony, myriad sup-
porting documents, and the corroborating testimony of
two prison employees. The court, adopting the state’s
argument, dismissed Ray’s testimony and evidence as
products of an elaborate fraud designed by a “sophisti-
cated” individual to circumvent AEDPA’s one-year
limitations period.
We review the district court’s findings of fact for
clear error. Bintz, 403 F.3d at 865. “A factual finding
is clearly erroneous when, after reviewing the com-
plete record, we are left with the definite and firm con-
viction that a mistake has been committed.” Holleman
v. Cotton, 301 F.3d 737, 741-42 (7th Cir. 2002) (citation
and internal quotation marks omitted). We will reverse
if the district court’s findings are “implausible in light
of the record viewed in its entirety.” Gorham v. Franzen,
760 F.2d 786, 790 (7th Cir. 1985) (citation and internal
quotation marks omitted). But if there “are two
permissible views of the evidence, the [district court’s]
choice between them” will not be disturbed. Anderson
v. City of Bessemer City, 470 U.S. 564, 573 (1985). The
dissent notes that “ ‘[s]pecial deference is given to the
district court’s factual determinations because the district
court had the opportunity to hear the testimony and
observe the demeanor of witnesses . . . .’ ” (Post at 61
42 No. 11-3228
(quoting United States v. Smith, 668 F.3d 427, 430 (7th Cir.
2012)); see also id. at 100 (“the district court had the
benefit of watching Ray’s demeanor . . .”).) We agree. But
here the district court made no finding concerning Ray’s
demeanor or presentation, and instead based its “credibil-
ity” finding on nothing more than a string of speculative
doubts, none of which were based on any competent
contradictory evidence presented by the state, as
we explain below.
We begin by reviewing Ray’s evidence. Before the
evidentiary hearing, Ray submitted a sworn declaration
describing the who, what, where, where, why, and how
of the events that made his filing timely under Houston.
Ray swore, under penalty of perjury, that he gave his
state post-conviction motion to Ms. Tamara Smith,
an undisputed prison official, during “lunchtime” on
April 27, 2004. He alleged that he gave Ms. Smith his
motion “downstairs” in his prison unit and the two
proceeded into the “social worker’s office” where she
searched for, located, and provided him two docu-
mentary receipts. He also explained “why” he gave
Ms. Smith his motion instead of using the prison mail
system: his unit was on administrative confinement
and the prisoners had no access to the regular mail
system at the time. The dissent asserts, “It is difficult to
believe that a prisoner could roam with that much
freedom and be able to walk to the social worker’s office,
but be unable to walk with the social worker to the cen-
trally located mailbox or the prison mailroom.”
(Post at 73.) But this doubt is based purely on specula-
tion about how Diamondback was configured, and what
No. 11-3228 43
its specific administrative confinement policies were.
Absent actual evidence, it is not implausible to believe
that prisoners are entitled to access their social workers
during periods of administrative confinement but not the
mailroom.
The documents Ray provided corroborated his testi-
mony. He kept and produced copies of the letters he
allegedly sent Ms. Smith on June 1, 2004, September 9,
2004, June 15, 2005, and November 1, 2006. He offered a
copy of the certificate of service that she allegedly
pulled from a cabinet in the social worker’s office and
gave him to sign after he gave her his post-conviction
motion. The dissent emphasizes the discrepancy be-
tween Ray’s testimony that he filled out the certificate
of service form, and other documents in which Ray
refers to the certificate of service form as being filled out
or signed by Ms. Smith. (See post at 70.) But this minor
discrepancy does not render Ray’s story “so internally
inconsistent or implausible on its face that a rea-
sonable factfinder would not credit it.” Anderson, 470
U.S. at 575. The dissent argues that, “[h]ad [Ray] not
changed his story, the State could have shown, through
handwriting analysis, that Ray had completed the form.”
(Post at 70.) But it makes no difference who tech-
nically filled out that form, so long as it demonstrates
that Ray had asked Ms. Smith to mail out his motion.
The typos in the document, and its lack of any distin-
guishing characteristics like a letterhead, were con-
sistent with other official CCA documents, of unques-
tioned authenticity, that Ray introduced into evidence
bearing the same defects. And no one testified that
44 No. 11-3228
Ray’s certificate of service was phony. In comparing
these forms, the district court “remain[ed] convinced
that in both form and content the certificate looks more
like the work product of a prisoner than a prison ad-
ministrator,” and the dissent argues that we have improp-
erly substituted our judgment for the district court’s.
(See post at 69.) Such substitution might be improper if the
district court had a sound basis for arriving at
this conclusion, such as actual testimony about the
falsity of the form or the high grammatical standards
to which prison forms adhere. But the district court’s
only basis was its own eyeball comparison of the docu-
ments, and upon review of the documents on appeal,
we conclude that they are not so inherently dissimilar
that a factfinder could reasonably conclude that one is
a fake, while the other is not.
Although the CCA receipt that Ms. Smith reportedly
signed was not in the record, Ray offered an essentially
uncontested reason for his failure to produce it: the
prison library or mail system lost the document after
he gave it to the library staff for copying. The only evi-
dence remotely contradictory was the testimony that
this might have been the first time during both
Officer Nedbal’s and Ms. Martin’s tenure that a
prisoner’s copy request had been lost. But as both
Officer Nedbal and Ms. Martin confirmed, the prison
would only know if the prisoner reported it to the
library staff or some other prison official. So it is
certainly possible that Ray’s requested copies were not
the first to be lost. Even if they were, that fact does not
establish an evidentiary basis for finding that Ray manu-
No. 11-3228 45
factured the CCA receipt or fabricated a fictitious
tale about it. The state could have, but did not, put
Ms. Smith on the stand to dispute Ray’s claims.
Finally, in addition to offering his own sworn testi-
mony and corroborative documents, Ray presented the
testimony of two prison employees, Officer Nedbal
and Ms. Martin. While both admitted that they could
not be certain that the documents that Ray claims to
have been lost were actually lost or contained the
original receipt that Ms. Smith allegedly signed, they
also testified that prison policy required prisoners to
describe in detail the documents they submit for copying
and anything “suspicious” would be reviewed by a
supervisor. Included on the list of “suspicious” requests
were submissions with descriptions that did not match
its contents. But no one flagged Ray’s submission for
review. The testimony of both Officer Nedbal and
Ms. Martin lent further credibility to Ray’s claim that
he had, but lost, a CCA receipt signed by Ms. Smith.
The dissent defends at length the district court’s specula-
tive basis for finding that the privilege correspondence
receipt was entirely fabricated. (See post at 74-89.) The
following points of response are in order. First, it takes
a speculative leap to go from the mere fact that Ray
described the document in the disbursement request
form in a lot of detail to the conclusion that he
fabricated it. Second, the fact that librarians were not
required to affirmatively verify the authenticity of docu-
ments to be copied does not create a reasonable
inference that the document was therefore a fake or
nonexistent. Third, the dissent joins the district court
46 No. 11-3228
in critiquing Ray’s shortcomings as a pro se litigant,
such as Ray’s less-than-perfect bookkeeping practices
or failure to cite the most convincing pieces of evidence
(e.g., the receipt) at specific stages of proceedings
(see also id. at 94-97 (noting failure to have state motion
notarized, failure to notify state court of prison transfers,
and failure to retain copies of certain documents)), but
that is simply insufficient to jump to the conclusion
that the receipt must therefore not exist. Fourth,
the dissent finds it incredible that upon obtaining rep-
resentation, Ray would take it upon himself to track
down the receipt, but as any pro bono attorney repre-
senting an overly eager prisoner client can attest, that is
not so inherently unusual, especially when attorney-
client communication is neither quick nor easy when
the client is in prison and can be transferred at any
time with little notice if any to the attorney, further de-
laying communication. Last, the dissent argues that it is
implausible that Ray would have been able to obtain
the receipt which was held by another inmate in
another prison in less than 18 days. (See also id. at 98-99.)
That theory is not without force, but unfortunately for
the state, it did not actually produce any evidence
to support it.
Ray’s sworn declaration, live testimony, documentary
evidence, and corroborating witnesses were more than
sufficient to shift the burden of proving untimeliness to
the state. The state’s evidence consisted of two things:
Ms. Highley’s testimony and the Diamondback Correc-
tion Facility’s prisoner mail policy. Ms. Highley had
no record of Ray purchasing postage during April 2004.
No. 11-3228 47
But her knowledge was limited to that specific time
frame. She could not rule out the possibility that Ray
had retained postage from earlier purchases, borrowed
stamps from other prisoners, or received postage from
family members or friends who were not incarcerated.4
The prisoner mail policy added nothing of substance.
Although Ray claims to have received a receipt for his
outgoing legal mail and the policy does not mention
issuance of receipts for such mail, the state did not
produce Ms. Smith or some other prison official to
counter Ray’s testimony that the prison had, and occa-
sionally provided, receipts.
The state did advance a number of arguments at
the evidentiary hearing. First, it labeled Ray a “sophisti-
cated” prisoner, with habeas expertise, because he had
“boxes” of legal documents. Were these small shoe
boxes or large moving boxes? Were they filled with
distinct documents or multiple drafts or copies of only
a handful unique ones? The record does not say. And
unlike the dissent, we do not find it at all inconsistent
4
The dissent asserts that Ray’s testimony about postage was
“inconsistent” with Ray’s affidavit attached to his habeas
petition, and that this somehow meant that Ms. Highley’s
testimony “supported the district court’s factual findings.”
(Post at 72.) But the assertion in Ray’s affidavit that he gave Ms.
Smith a disbursement request is not at all inconsistent with
Ray’s testimony that he gave Ms. Smith a disbursement request
and used stamps as postage. In any event, Ms. Highley’s
testimony simply doesn’t support the district court’s factual
findings as discussed above.
48 No. 11-3228
that Ray did not understand the law governing
federal habeas corpus when he wrote the state court on
October 4, 2006, but then filed a petition in federal
court purportedly demonstrating sophisticated knowl-
edge about habeas on November 27, 2006. (See post at 90-
91.) It is not implausible that Ray would obtain a
working knowledge of habeas in two months, especially
after the need for such knowledge took on increased
urgency when he learned that his state motion was
never filed. It is also not at all unusual for pro se
filings to contain sophisticated legal arguments, since
prisoners routinely rely on templates created by other
inmates when filing motions; indeed, Ray testified that
he was “relying off inmates to help.”
Second, the state accused Ray of concocting a sophisti-
cated scheme in October 2006 to assert a mailbox rule
claim and avert AEDPA’s one-year time bar. According
to the state, Ray made up the whole story about giving
his section 974.06 motion to Ms. Smith and receiving
two receipts (one signed) from her. He manufactured the
certificate of service and the letters that he swears he
sent Ms. Smith in order to support his bogus claim. Ray
then pursued his mailbox rule strategy in federal court
after the state appellate court denied his post-conviction
motion. Finally, after we found that his constitutional
rights had been violated during his criminal trial and
remanded to the district court to give the state an oppor-
tunity to rebut Ray’s claim of timeliness, Ray tricked
the prison staff into believing that they had copied and
lost a CCA receipt signed by Ms. Smith.
No. 11-3228 49
What the state did not do, however, was present evi-
dence in support of its theory. It did not produce Tamara
Smith, nor deny her existence. It is certainly possible
that, had she been called, Ms. Smith might have
testified that she has no recollection of April 27, 2004.
But it is equally likely that she might have flatly denied
Ray’s account, or—worse for the state—confirmed it.
Unfortunately, we can only speculate because the state
did not produce her. Nor did the state produce any of
Diamondback’s former employees to explain if and
how the mail policy applied when prisoners were admin-
istratively confined, whether receipts were provided
for outgoing legal mail, whether prisoners at the
facility would have known that they were slated to be
transferred to a different prison and the scheduled date
of transfer, or whether Ray’s supporting documents
were fraudulent. And the Diamondback prison mail
logs? Not in the record. None of this evidence is in the
record. The dissent agrees that the state did not present
the above evidence, but notes that the “law does not
require direct evidence to prove a fact—circumstantial
evidence will suffice.” (Post at 63; see also id. at 63 n.2
(state’s “inability to obtain direct evidence of Ray’s
fraud does not insulate Ray from a finding that he is not
credible”).) But the state did not even present circum-
stantial evidence upon which a factfinder could have
reasonably based his doubts about Ray’s testimony.
The dissent argues that, based on Ray’s testimony that
he was in administrative confinement because “they
was bringing Wisconsin prisoners back from Oklahoma
back to Wisconsin,” the district court “could very rea-
50 No. 11-3228
sonably conclude that Ray knew he was returning to
Wisconsin while in confinement and that it was
strange that he would decide to mail the motion to a
Wisconsin court from Oklahoma . . . .” (Post at 67-68.)
But even if Ray did know that he was returning to Wis-
consin (and nothing shows he knew when he would
be transferred), the fact that a prisoner would want to
mail an important state post-conviction motion as
soon as it was ready is not so incredible such that the
district court could have reasonably discredited his
testimony. It is not clear how placing mail destined for
a Wisconsin address in a Wisconsin mailbox is so
superior to placing it in an Oklahoma mailbox, such
that any normal prisoner would obviously delay filing
such a critical motion (and consequently, delay his poten-
tial release from prison) for an indefinite period of time,
just for the opportunity to put that motion in a Wis-
consin mailbox.
In sum, the state prevailed in the district court by
branding Ray a sophisticated prison litigant and a liar,
without any evidence to support those accusations.
We think Ray’s counsel hit the nail on the head in his
briefs and at oral argument. The state’s argument
requires us to believe that Ray knew in 2004 that the
mailbox rule would apply to a section 974.06 post-convic-
tion motion filed in Wisconsin, even when the motion
is not received by the state court—issues that we
decide today as a matter of first impression. In 2004,
the only circuit authority for applying the mailbox rule
to statutorily toll AEDPA were the cases decided by the
Ninth Circuit. E.g., Caldwell, 30 F.3d at 1203. By that
No. 11-3228 51
time, however, the “diligence” requirement was also
firmly established in that circuit’s law. E.g., Huizar, 273
F.3d at 1222. But Ray does not argue that he diligently
followed up with the state court during the two years
that passed from the time he allegedly gave Ms. Smith
his motion to the time he filed his second, supple-
mental motion. We must also believe that Ray foresaw
that neither Ms. Smith nor anyone else from the
Diamondback Correctional Facility would testify at the
inevitable evidentiary hearing—surely Ray would have
known that Ms. Smith’s or another CCA official’s testi-
mony contradicting his claims likely would have pro-
vided evidence to support the district court’s dismissal
of his petition as untimely. All of this might in fact be
true, but without evidence there is no basis for
believing any of it.
There is no dispute that the district court placed the
burden of proof on Ray. This was error. Our review of the
record convinces us that the district court’s error was
not limited to the law, however. The state did not
submit any evidence to contradict Ray’s testimony and
evidence. And it certainly did not carry its burden of
proving that Ray’s federal habeas petition was un-
timely. Yet the district court found that Ray had concocted
an elaborate scheme to defraud the court and subvert
AEDPA’s limitations period, and it concluded that Ray’s
federal habeas petition was untimely filed. This conclusion
lacks an evidentiary basis. We have a “definite and firm
conviction” that the district court made a mistake; its
findings are clearly erroneous. See Harris v. Reed, 894 F.2d
871, 878 (7th Cir. 1990) (finding clear error where the
52 No. 11-3228
district court “construct[ed] a trial strategy supporting
[petitioner’s] counsel’s decision” not to call material
witnesses at the petitioner’s trial); Gorham, 760 F.2d at 795(finding clear error in district court’s rejection of evidence
related to the petitioner’s waiver of his Miranda rights
because the state failed to “mention[] [the evidence] at the
suppression hearing” during the petitioner’s trial). The
dissent believes that we have “isolate[d] each piece of
evidence and then one by one conclude[d] that the individ-
ual inconsistency or implausibility is insufficient by itself
to support the district court’s factual findings” (post at 66-
67 n.4), but all we have done is demonstrate how the
district court discredited each piece of Ray’s evidence
based not on proof from the state, but on speculation.
Speculation piled on top of speculation does not a
factual finding make; zero plus zero still equals zero.
Ray’s constitutional rights were violated during his
criminal trial. There is no dispute about that. After we
remanded this case to the district court to decide
whether Ray’s federal habeas petition was untimely,
the state had over one year from the time our mandate
issued on April 13, 2010 until the evidentiary hearing.
This was more than enough time for the state to cull
together evidence sufficient to refute Ray’s claim and
make a persuasive case for untimeliness. The state ap-
parently “made numerous phone calls to . . . other CCA
prisons still operating in Oklahoma” but was met “with
voicemails and unreturned calls for months.” It did
“everything” it could think of “to get more information
from CCA on . . . their policies,” but was ultimately
unsuccessful. So the state appeared at the evidentiary
No. 11-3228 53
hearing with one witness, who could only speculate
about whether Ray might have had postage in April 2004,
and a prison mail policy that did not contradict
Ray’s testimony about the issuance of receipts for out-
going mail. Without evidence, the state painted Ray as
a “bright,” “sophisticated,” and experienced habeas
litigant familiar with AEDPA’s one-year limitations
period and the Houston mailbox rule’s applicability to a
pro se prisoner’s purported filing that is not actually
received by the court. Branded a liar, what was Ray to
do? No amount of evidence could have overcome
this hurdle. The district court sided with the state. But
it did so only after incorrectly placing the burden of
proof on Ray. We previously held that Ray’s constitu-
tional rights were violated during his state court trial. So
we now reverse the district court’s dismissal of Ray’s
petition as untimely, reinstate the petition, and remand
this case with instructions to grant the writ unless the
state elects to retry him.
In concluding, we highlight an interesting irony in
this case that we think is relevant to our decision to
place the burden of proving untimeliness on the state.
The state notes the difficulty it has had in obtaining
evidence from and about CCA and Diamondback; it
was met with unreturned messages for “months.” This is
the state’s attorney’s office. Imagine the difficulty, and
possible resistance, that a pro se prisoner will likely
face under similar circumstances. To ignore this prac-
tical reality is to elevate form over substance, procedure
over justice. Without a clear statutory command to
that effect from AEDPA, and in light of the Supreme
54 No. 11-3228
Court’s dictates in Houston, we reject the state’s
request that we do so here.
III. CONCLUSION
For the above-stated reasons, we R EVERSE the
district court’s dismissal of the petition for writ of habeas
corpus, and R EMAND with instructions to grant the
writ unless the state elects to retry the petitioner within
120 days of issuance of our final mandate or of the Su-
preme Court’s final mandate.
M ANION, Circuit Judge, concurring in part, dissenting
in part.
I.
Ray filed this habeas action in federal court on
February 28, 2007. Opinion at 5. The district court denied
Ray’s petition and he appealed to this court. This court
held that Ray’s clearly established confrontation clause
rights were violated when the state court admitted co-
actors’ statements through a police detective’s testi-
mony at trial. Ray v. Boatwright, 592 F.3d, 793, 798 (7th
Cir.), as amended (Apr. 1, 2010). However, after holding
that Ray’s constitutional rights had been violated, this
court remanded the case to the district court to allow
No. 11-3228 55
the district court to determine whether Ray’s habeas
petition had been timely filed. The government had
argued that Ray’s habeas petition had been filed after
the one-year statute of limitations had run, but Ray
had claimed in his habeas petition that the statute of
limitations had been tolled because he had handed a
state court petition to a prison social worker on April 27,
2004 for mailing. This court concluded that because
the district court had dismissed Ray’s habeas petition
on the merits, before giving the government “an oppor-
tunity to answer the petition and develop the record,”
id. at 798-99, remand was required. Specifically, this
court explained:
the government has not yet had a chance to chal-
lenge whether the documents Ray placed into
the record are authentic; whether the state court
petition was ever received by prison officials;
whether the papers Ray filed were sufficient
under state law to petition for post-conviction
relief; or whether the individual to whom Ray
allegedly gave his petition was a proper prison
authority. Accordingly, we remand this case to
the district court so that the government may
have an opportunity to develop the record on this
issue. If, after the record is fully developed, Ray’s
petition is determined to be timely, this Court
directs the district court to grant the petition for
writ of habeas corpus unless the State chooses
to retry Ray within 120 days.
Id. at 799.
56 No. 11-3228
On remand, the district court followed our directive.
He held an evidentiary hearing at which Ray testified,
along with three state employees (two from the prison
library and another involved with prisoner accounts).
The documentary evidence Ray presented in support of
his claims of timeliness was admitted into evidence, as
were prison policies from Diamondback. Following the
evidentiary hearing, based on the testimony and docu-
mentary evidence, the district court concluded, as a
factual matter, that the documents Ray presented were
not genuine and that his testimony was not credible.
The district court further found that Ray had not
given Smith a state post-conviction motion on April 27,
2004 for mailing.
Notwithstanding that the district court did exactly
what we directed, the court today holds that the
district court’s credibility finding and its finding that
Ray did not give the motion to a social worker on April 27,
2004 were clearly erroneous. Opinion at 51. I disagree;
the district court’s factual findings, far from being
clearly erroneous, were compelled by contradictions and
implausibilities in Ray’s story and the documentary
evidence. Moreover, while I agree the prison mailbox
rule applies (and thus I concur in Part II. A of the opin-
ion), I disagree that the state bore the burden of proving
that Ray had not given the purported state post-con-
viction motion to a social worker on April 27, 2004.
However, contrary to the court’s conclusion that “after
an evidentiary hearing, the district court placed the
burden of proving timeliness on Ray,” Opinion at 2, the
district court did in fact place the burden of proof on the
No. 11-3228 57
state and then concluded that the state had met its bur-
den. And that finding was not clearly erroneous. Ac-
cordingly, I concur in part and dissent in part.
II.
A. Ray bears the burden of proving tolling.
I agree that the state bears the burden of proving the
affirmative defense of the statute of limitations. Gildon v.
Bowen, 384 F.3d 883, 886 (7th Cir. 2004). But the state
met this burden. The state established that Ray did not
file his federal habeas petition until February 28, 2007,
and that this filing was not within the one-year statute
of limitations because Ray’s state conviction became
final on or about September 10, 2003. The state further
established that Ray had not filed a state post-conviction
petition, which could toll the statute of limitations, until
October 2007. Thus, the state proved that Ray’s habeas
petition was untimely.
It is Ray who is asserting an exception to the statute
of limitations and it is he who should bear the burden
of proving tolling. While this circuit has yet to address
the issue of the burden of proof for tolling under 28
U.S.C. § 2244(d)(2), we have held that the habeas petitioner
bears the burden of proving equitable tolling. Williams
v. Buss, 538 F.3d 683, 685 (7th Cir. 2008). That this case
involves statutory tolling and not equitable tolling is of
no moment—the same principles apply: The party as-
serting an exception to the statute of limitations’ affirma-
tive defense bears the burden of proving that exception.
58 No. 11-3228
See also Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir.
2009) (stating that the habeas petitioner “bears the
burden of demonstrating that the AEDPA limitation
period was sufficiently tolled” under § 2244(d)(2)).
In holding that the state bears the burden of proving
tolling, the court reasons that “ ‘all else being equal, the
burden [of proof] is better placed on the party with easier
access to relevant information.’ E.g., Nat’l Commc’n Ass’n
Inc. v. AT&T Corp., 238 F.3d 124, 130 (2d Cir. 2001).”
Opinion at 31. But the court’s analysis ignores the re-
mainder of what Nat’l Commc’n said: “The general rule
is that the party that asserts the affirmative of an issue
has the burden of proving the facts essential to its
claim.” Id. And “all else again being equal, courts
should avoid requiring a party to shoulder the more
difficult task of proving a negative.” Id. In this case, it is
Ray who is asserting the affirmative of an issue, namely
that he gave Smith a state post-conviction motion on
April 27, 2004. The court is thus placing on the state
the more difficult task of proving a negative—that Ray
did not give Smith the post-conviction motion. Finally,
I would note that proving the negative in this context
is even more difficult because Ray claims he handed the
petition to Smith in violation of the prison policy
which stated: “All inmate mail will be processed through
the institutional mailroom. No person, either staff or
visitors, is permitted to bring in or take out any mail
No. 11-3228 59
or article for an inmate.” 1 Opinion at 13. No one has
been able to find Smith, but if she was part of the prison
staff, she would have known she was not permitted to
handle prison mail. For these reasons, I dissent from
the court’s holding that the state bore the burden of
proving the statute of limitations was not tolled.
1
The court responds that the more natural reading of this rule
is that no one can take mail into or out of the prison. Opinion at
38. But in addition to specifying that the mail must be
processed through the mailroom, the procedures also discuss
the “posting of outgoing mail,” stating that: “OUTGOING
MAIL WILL BE DELIVERED FROM THE INMATE/RESI-
DENT TO THE FACILITY BY THE FOLLOWING PROCE-
DURE: The mail clerk will pick up the mail from the centrally
located mail box between 8:00 a.m. and 8:30 a.m. Mail will be
delivered to the post office the same day it is received by the
mail clerk in the Diamondback Correctional Facility mail
room.” The policy reiterates this point stating later: “THE
PROCEDURE AT THIS FACILITY FOR COLLECTION OF
MAIL IS AS FOLLOWS: Mail will be collected from the
centrally located mail box Monday through Friday, (excluding
holidays) between 8:00 a.m. and 8:30 a.m.” See also Policy 16-1
(“Outgoing mail will be posted within 24 hours of the time the
mail was turned over to the facility by the inmate/resident, . . .”
(emphasis added)). Taken as a whole, these procedures clarify
that prisoners must deliver outgoing mail to the “facility,” and
not a staff member, via the centrally located mailbox. No
exception is listed for those in administrative confinement
even though the policy includes a list of “ADDITIONAL
PROCEDURES AT THIS FACILITY” related to mail collection.
60 No. 11-3228
B. The district court held that the State bore
the burden of proof.
After concluding that the state bore the burden of
proof, the court concludes that the district court
wrongly placed the burden of proof on Ray. Opinion
at 51. However, the district court’s holding on the burden
of proof is actually consistent with the court’s holding
today. The district court did hold that the state did not
initially carry the burden of proof on tolling. However,
the district court also explained that a prisoner
claiming the benefit of the mailbox rule had the
“initial burden of presenting a sworn declaration setting
forth the requirement of having hand[ed] the prison
official the document to be filed with postage pre-
paid.” The district court then agreed with Ray that at that
point the burden shifted to the state, stating: “Ray is
correct that once the prisoner presents such evidence,
as Ray has here, the burden does shift to the respondent
to refute it.” The district court, though, recognized
that there was a split in the circuits on the burden-
shifting approach, between the Ninth Circuit’s decision
in Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001) and
the Eleventh Circuit’s decision in Allen v. Culliver, 471
F.3d 1196 (11th Cir. 2006) (per curiam), but concluded
that “regardless of which approach is applied here, the
Court finds on the evidence presented that Ray’s petition
was not filed within the one-year period allowed
under § 2244(d)(1).” Thus, the district court did place
the burden on the state and the court is wrong to say
that “[t]here is no dispute that the district court placed
the burden of proof on Ray.” Opinion at 51.
No. 11-3228 61
C. The district court did not commit clear error in
finding that Ray was not credible and in finding
that he had not given Smith a state post-conviction
motion on April 27, 2004, for mailing.
Even if the state bore the burden of proof, as this
court and the district court held, Ray still cannot prevail
because, as discussed below, the district court found,
following an evidentiary hearing, that Ray’s testimony
that he had given a state post-conviction motion to
Tamara Smith on April 27, 2004, to mail was not credi-
ble. The court holds that the district court com-
mitted clear error in finding Ray’s testimony incredible
and in finding that Ray had not given the social worker
a state post-conviction motion on April 27, 2004, to mail.
As the court notes, we will reverse a district court’s
factual findings only if they are “implausible in light of
the record viewed in its entirety.” Gorham v. Franzen, 760
F.2d 786, 790 (7th Cir. 1985). Moreover, as we recently
explained in United States v. Smith, 668 F.3d 427, 430
(7th Cir. 2012), “[s]pecial deference is given to the
district court’s factual determinations because the dis-
trict court had the opportunity to hear the testi-
mony and observe the demeanor of witnesses . . . .” Thus,
because “[d]eterminations of witness credibility are
entitled to great deference [they] ‘can virtually never be
clear error.’ ” United States v. Cox, 536 F.3d 723, 729 (7th
Cir. 2008) (quoting United States v. Blalock, 321 F.3d 686,
690 (7th Cir. 2003)).
Notwithstanding the extreme deference we owe the
district court’s credibility and factual findings, the court
62 No. 11-3228
concludes that the district court clearly erred. The
court justifies its conclusion in four main ways: (1) by
stressing all of the evidence the state did not present;
(2) by stating that the district court merely branded Ray
a liar; (3) by disagreeing with the district court’s reasons
for finding Ray and his story not credible; and (4) by
positing that the state’s theory that Ray manufactured
the evidence is implausible, or at least that there is no
evidence in the record for believing Ray manufactured
the evidence.
1. Evidence not presented by the state.
I address first the court’s emphasis on the evidence the
state did not present. The court first notes that Smith
did not testify, Opinion at 49, and then adds:
Nor did the state produce any of Diamondback’s
former employees to explain if and how the mail
policy applied when prisoners were administra-
tively confined, whether receipts were provided
for outgoing legal mail, whether prisoners at
the facility would have known that they were
slated to be transferred to a different prison and
the scheduled date of transfer, or whether Ray’s
supporting documents were fraudulent. And the
Diamondback prison mail logs? Not in the re-
cord. None of this evidence is in the record.
Opinion at 49.
No. 11-3228 63
It is true that the state did not present this evidence.2
But the absence of this evidence is entirely irrelevant to
the question of whether the district court was clearly
erroneous in finding Ray incredible and his evidence
and story contradictory and implausible. Yes, Smith or
others from Diamondback might have contradicted
Ray’s testimony, but the law does not require direct
evidence to prove a fact—circumstantial evidence will
suffice.3 See, e.g., Bloedorn v. Francisco Foods, Inc., 276 F.3d
2
Diamondback has been closed and the state’s attempts to
speak with former Diamondback staff have proved futile.
Ray’s attorney indicated at oral argument that they have not
made any efforts to find Smith because it is not their burden.
While I disagree with that proposition, see supra at 57-59, even
assuming the state bore the burden of proof, its inability to
obtain direct evidence of Ray’s fraud does not insulate Ray
from a finding that he is not credible.
3
The court responds that “the state did not even present
circumstantial evidence upon which a factfinder could have
reasonably based his doubts about Ray’s testimony.” Opinion
at 49. If the court’s point is that most of the evidence contradict-
ing Ray’s testimony came from Ray himself (and not the state),
that objection is misplaced. See Marantz v. Permanente Medical
Group, Inc. Long Term Disability Plan, 687 F.3d 320, 336-37 (7th
Cir. 2012) (“We will not disturb the district court’s factual
findings after it has weighed the evidence on both sides
unless, after considering all of the evidence, this court is left
with the definite and firm conviction that a mistake has been
made.”) (emphasis added). If, on the other hand, the court
believes that the evidence presented at the hearing does not
(continued...)
64 No. 11-3228
270 (7th Cir. 2001) (“An employer’s motive is a factual
matter which, like any other fact, may be proven by
direct or circumstantial evidence.”). Moreover, the mail
logs the court references, while not produced, would
have been completely useless because Ray testified that
he did not place the motion in the prison’s regular
mail system.
2. “Branding” Ray a liar.
In addition to highlighting the evidence the state did
not present, the court reasoned that: “The state prevailed
in the district court by branding Ray a sophisticated
prison litigant and a liar, without any evidence to
support those accusations.” Opinion at 50. That is not so;
the district court had ample circumstantial evidence,
discussed at length below, to conclude that Ray was
both a sophisticated prison litigant and a liar. Thus,
contrary to the court’s portrayal, this is not a case of
the district court merely branding Ray a liar.
It is true, though, as the Supreme Court has made clear,
that a court may not “insulate his findings from review
3
(...continued)
support a reasonable inference that Ray lied about giving
Smith a post-conviction motion, the court is wrong. As dis-
cussed below, Ray’s testimony, the prison officials’ testimony,
the Diamondback policies, and the extensive documentation
Ray presented to prove his case, taken together created a
reasonable inference that Ray never gave Smith a post-con-
viction motion for filing.
No. 11-3228 65
by denominating them credibility determinations . . . .”
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).
But as the Supreme Court further explained in Anderson,
there are “factors other than demeanor and inflec-
tion [which] go into the decision whether or not to
believe a witness. Documents or objective evidence
may contradict the witness’ story; or the story itself may
be so internally inconsistent or implausible on [their]
face that a reasonable factfinder would not credit
[them].” Id. That is exactly what we have in this case
and precisely what the district court found. The district
court stated: “Taking into consideration all of the sur-
rounding facts and circumstances of this case, the
Court does not find Ray’s testimony that he handed his
§ 974.06 motion to Ms. Smith on April 27, 2004, credi-
ble.” The district court further explained it was
rejecting Ray’s version of events because of “[i]ncon-
sistencies in his own documentation and further
implausibilities concerning that documentation . . . .”
The district court then detailed a substantial number of
inconsistencies and implausibilities, a few of which
the court simply mentions without examination or con-
tradiction.
3. The court’s disagreement with the district
court’s reasoning.
As noted, the district court detailed a substantial
number of the inconsistencies and implausibilities in
Ray’s testimony and his evidence. In holding that the
66 No. 11-3228
district court committed clear error, the court mentions
these reasons but then presents its own view of this
evidence, substituting its judgment for the district
court’s. This is impermissible. United States v. Mancillas,
183 F.3d 682, 695 (7th Cir. 1999) (“Factual findings are
reviewed for clear error, and this Court will not
substitute its judgment for that of the district court if
there is support in the record for the trial court’s
findings of fact.”) (internal citations omitted).4
4
The court’s response to the dissent illustrates two further
flaws in the court’s review of the district court’s reasoning:
First, the court quotes Anderson out of context to reason that
(what the court perceives as) minor inconsistencies or im-
plausibilities in Ray’s story cannot support the district court’s
factual finding because they are not “so internally inconsistent
or implausible on its face that a reasonable factfinder would not
credit it.” Opinion at 43. But in Anderson, the Supreme Court
was not discussing what was required to support a factual
finding; rather, the Supreme Court was explaining when a
credibility determination could be overturned as clearly er-
roneous. Had the district court found Ray credible, the evidence
might not reach the “so internally inconsistent or implausible
on its face” threshold to conclude that the district court com-
mitted clear error. But in this case the district court found Ray
incredible and thus the court’s reliance on Anderson is mis-
placed. Second, in concluding that the inconsistencies and
implausibilities in Ray’s story and his evidence cannot
support the district court’s factual finding, the court isolates
each piece of evidence and then one by one concludes that
the individual inconsistency or implausibility is insufficient
(continued...)
No. 11-3228 67
a. Ray’s impending transfer to Wisconsin.
For instance, in response to the district court’s
reasoning that it was curious that Ray gave his
Wisconsin state court motion to Smith in Oklahoma for
mailing to Wisconsin when he was about to be trans-
ferred to Wisconsin, the court retorts: The state did not
present any evidence on “whether prisoners at the
facility would have known that they were slated to be
transferred to a different prison . . . .” Opinion at 49. But
Ray testified: “We was on administrative confinement
to the unit. We weren’t—we weren’t allowed to leave
the unit. . . . Because they was bringing Wisconsin pris-
oners back from Oklahoma back to Wisconsin.” From
this testimony, the district court could very reasonably
conclude that Ray knew he was returning to Wisconsin
while in confinement and that it was strange that he
would decide to mail the motion to a Wisconsin court
4
(...continued)
by itself to support the district court’s factual findings. See,
e.g., Opinion at 45-46. However, no one piece of evidence
must support a factual finding; rather the court must take the
entire record as a whole. Cf. Huff v. UARCO, Inc., 122 F.3d
374, 385 (7th Cir. 1997) (discussing standard in a discrimina-
tion case). Thus, that individually some of the vagaries are
minor is of no moment; the court should have considered all
of the inferences flowing from the evidence in total. And in
total, the evidence was more than sufficient to support the
district court’s factual findings that Ray was not credible and
that Ray had not given a state post-conviction motion to
Smith to mail.
68 No. 11-3228
from Oklahoma, especially when he supposedly
couldn’t get to the mailbox in Oklahoma.5
b. The Certificate of Service form.
Regarding the Certificate of Service form Ray claimed
Smith had given him, the district court believed the
form looked like the work product of a prisoner, noting:
“The certificate bears no signatures, other than Ray’s,
and appears on plain white paper with no heading or
other indication that it is an official prison form. It
contains no space for the year of service, and contains
numerous typographical errors.” The court first notes
that “no one testified that Ray’s certificate of service
was phony.” Opinion at 43-44. But as explained above,
the state need not prove its case with direct evidence.
The court then acknowledges that the form had typos
and lacked any institutional markings, but excuses
those problems by noting: “[t]he typos in the document,
and its lack of any distinguishing characteristics like
a letterhead, were consistent with other official CCA
documents, of unquestioned authenticity, that Ray intro-
duced into evidence bearing the same defects.” Opinion
5
The court responds that any normal prisoner would want to
file such a critical motion without delay, to avoid any delay
in his potential release from prison. Opinion at 50. If such an
inference is reasonable, then it is even more reasonable for
the district court to have inferred that had Ray truly filed a
motion with the state court in April 2004, he would not
have waited more than two years to inquire on its status.
No. 11-3228 69
at 43. But the district court considered the other forms
and found that “[e]ven when compared to other
official forms which lack an institutional heading and
contain a grammatical error, the court remains convinced
that in both form and content the certificate looks more
like the work product of a prisoner than a prison ad-
ministration.” The court rejects this added finding
based on its own eyeball comparison of the documents,
but here the court is again improperly substituting its
own judgment for the district court’s.6
6
Because the court relies on its own eyeball comparison of the
two documents to reject the district court’s findings, attached
as Appendix A is a copy of the Certificate of Service form
Ray claims he received from Smith. This form appears to have
been created on a typewriter and as the district court noted,
it contains nothing to indicate it is an official prison document
and it contains typographical errors. A reasonable inference
from the appearance of this form is that it was not a prison
form provided by Smith, but rather one created by Ray. This
inference becomes stronger when the Certificate of Service form
is placed next to some of the letters typed by Ray which the
district court also admitted into evidence and which are
included as Appendices B and C. (For instance, note the use of
“[ ]” instead of the more appropriate “()” in all of the docu-
ments.) Before the district court, Ray attempted to overcome the
inference that he had created the Certificate of Service form
by tendering a document he had received from the New Lisbon,
Wisconsin prison (not from the CCA, as the court states).
Opinion at 43. This New Lisbon form, reprinted as Appendix D,
also has several typographical errors and has no official
(continued...)
70 No. 11-3228
Moreover, in addition to finding that the Certificate of
Service looked more like a form created by a prisoner
than a prison, the district court also found that Ray’s
testimony concerning the Certificate of Service contra-
dicted other documentary evidence. Specifically, Ray
testified that Smith had given him the Certificate of
Service and that he had filled it out. But as the district
court noted, Ray referenced the “Certificate of Service
by Mail” form in his supposed first letter to Smith on
June 1, 2004, but in that letter he stated that she had
filled it out. Ray also mentioned the Certificate of Service
form in his “Motion for Protective Order Staying
And Abeying [sic] Petitioner’s Petition for Writ of
Habeas Corpus Filed Pursuant to 28 U.S.C. § 2254,” and
there he stated that Smith had signed the form.
Ray’s change in story, i.e., from his original claim that
Smith had filled out the Certificate of Service form, to
his current version that he had filled out the form, is
significant. Had he not changed his story, the state
could have shown, through handwriting analysis, that
Ray had completed the form.7
6
(...continued)
prison heading. But its font and appearance differ significantly
from the Certificate of Service form. And a reasonable fact-
finder could infer that this form could not be created on a
typewriter by a prisoner (given the font and the use of
differing font sizes—some large and some small), while the
Certificate of Service form could have been.
7
The court responds by first stating this is a minor inconsis-
tency and then quoting Anderson, Opinion at 43. But, as dis-
(continued...)
No. 11-3228 71
c. Testimony concerning postage.
The state also provided evidence, through the
testimony of Highley, calling into question Ray’s story
that he gave Smith the state post-conviction motion.
She testified that during the time that Ray supposedly
gave Smith the state court motion for mailing, he had
not purchased any postage. The court responds that
the state’s evidence, through testimony of Ms. Highley,
that Ray did not purchase postage during April 2004
did not establish that Ray did not provide Smith with
the motion because Highley “could not rule out the
possibility that Ray had retained postage from earlier
purchases, borrowed stamps from other prisoners, or
received postage from family members or friends who
were not incarcerated.” Opinion at 47. It is true that
during cross-examination Highley testified that she
could not rule out that possibility, but it was one piece
7
(...continued)
cussed above, Anderson is quoted out of context, see supra at 66
n.4, and while it is a minor inconsistency, it adds to the
other inferences supporting the district court’s factual
finding that Ray’s testimony is incredible. The court also
notes “it makes no difference who technically filled out
that form, so long as it demonstrates that Ray had asked
Ms. Smith to mail out his motion.” Opinion at 43. It is true
that it wouldn’t matter who filled out the form if it were
truly given to Ray by Smith in response to his request to mail
out the motion. But that Ray’s story changed does support
an inference that he is lying when he claimed that Smith
had given him that form.
72 No. 11-3228
of evidence the district court could consider in evaluating
Ray’s story. And when considered in light of other
record evidence, Highley’s testimony supported the
district court’s factual findings. Specifically, Ray’s testi-
mony concerning the postage for the state post-conviction
motion was inconsistent with other evidence. Before
the district court, Ray testified that he used stamps for
postage on the state post-conviction motion he pur-
portedly gave Smith, stating he had some and borrowed
a few to make sure there was enough postage on
it and then gave Smith a disbursement request in case
there wasn’t enough postage. However, this testimony
was inconsistent with the affidavit Ray had filed in Feb-
ruary 2007 with his petition for habeas relief: In that
affidavit, Ray stated that he “personally placed [his]
postconviction motion puruant (sic) to 974.06{4, (sic) along
with disbursement request for postage in the hands of
Tamara Smith, . . . . ” Ray made no mention of having
affixed stamps to the envelope. Because Highley’s testi-
mony ruled out the possibility that a disbursement was
made for stamps around the time Ray claimed to have
given Smith the motion, this change in story (i.e., Ray’s
current claim that he had placed stamps on the motion)
takes on a greater significance.
d. Diamondback’s policies.
The court also discounts the state’s evidence con-
cerning the mail policies at Diamondback. First, the
court reasons that nothing in the record explains whether
the Diamondback policy that “[a]ll inmate mail will be
processed through the institutional mailroom. No person,
No. 11-3228 73
either staff or visitors, is permitted to bring in or take out
any mail or article for an inmate,” applies to prisoners
while administratively confined. Opinion at 49. But the
policy clearly states “[a]ll inmate mail.” Moreover, Ray’s
testimony that he gave the motion to Smith because
he could not go to the mailroom is implausible in light
of his other testimony. Specifically, in explaining how
he came to give the motion to Smith, Ray speaks of
leaving his lunch table, going upstairs to his cell, bringing
the envelope with the motion in it downstairs, and
then going into a social worker’s office with her. It is
difficult to believe that a prisoner could roam with
that much freedom and be able to walk to the social
worker’s office, but be unable to walk with the
social worker to the centrally located mailbox or the
prison mailroom.8
The district court also found it “noteworthy that the CCA
Corporate and Facility Policy governing Diamondback
does not mention either a ‘Privileged Correspondence
Receipt’ form or a ‘Certificate of Service By Mail’ form,
but it does specify the form to be used when privileged
correspondence is distributed to an inmate.” The court
counters that while the prison mail policy does not men-
tion the giving of a receipt for outgoing legal mail, the
8
The court responds that without knowing how Diamondback
was configured, this is pure speculation. Opinion at 42. But
Ray testified that when he approached Smith to give her the
post-conviction motion, he had to wait because she had to
take another prisoner “somewhere in the institution.” Based
on this testimony, it is reasonable to infer that Smith could
have likewise taken Ray to the central mailbox or mailroom.
74 No. 11-3228
state did not produce Smith or some other prison
official to prove that forms were not given. Opinion at 47.
But direct evidence is not required and Diamondback’s
policy addressing the handling of privileged correspon-
dence is circumstantial evidence that supports the
district court’s factual findings. That policy stated that
for incoming privileged correspondence “[a] staff
member will distribute privileged correspondence to
inmates using form 16-1D.” Conversely, the policy “AT
THIS FACILITY” for mailing outgoing privileged corre-
spondence provided that “[a]ll outgoing legal mail is
logged in at the mailroom when it is received.” The
district court could reasonably infer from the fact that
the prison policy specified the use of a form to log in-
coming privileged mail and its directive that out-
going privileged mail be logged in the mailroom, that
Diamondback did not give prisoners a Certificate of
Service or a Privileged Correspondence Receipt form
upon mailing privileged mail.
e. The Privileged Correspondence Receipt.
The court next attacks the district court’s findings
concerning the Privileged Correspondence Receipt. The
district court found that it was doubtful that Ray ever
had a Privileged Correspondence Receipt form signed by
Smith. In response, the court conclusorily states: “Ray
offered an essentially uncontested reason for his failure
to produce it: the prison library or mail system lost
the document after he gave it to the library staff for copy-
ing.” Opinion at 44. The court then adds that: “The
No. 11-3228 75
only evidence remotely contradictory was the testimony
that this might have been the first time during both
Officer Nedbal’s and Ms. Martin’s tenure that a
prisoner’s copy request had been lost. But as Officer
Nedbal and Ms. Martin confirmed, the prison would only
know if the prisoner reported it to the library staff or
some other prison official. So it is certainly possible
that Ray’s requested copies were not the first to be lost.”
Opinion at 44. The court continues, saying that even if
Ray’s Privileged Correspondence Receipt was the first
to be lost, “that fact does not establish an evidentiary
basis for finding that Ray manufactured the [Privileged
Correspondence Receipt] or fabricated a fictitious tale
about it.” Opinion at 44-45. The court further reasons
that Officer Nedbal and Ms. Martin “testified that prison
policy required prisoners to describe in detail the docu-
ments they submit for copying and anything ‘suspicious’
would be reviewed by a supervisor,” and that sus-
picious items included ones where the description did
not match its content. But no one flagged Ray’s submis-
sion for review. Opinion at 45. And this testimony “lent
further credibility to Ray’s claim that he had, but lost, a
CCA receipt signed by Ms. Smith.” Opinion at 45.
Far from being “essentially uncontested,” the state
strenuously challenged Ray’s story and the district court
found that “Ray’s evidence that [prison officials] lost
his Privileged Correspondence Receipt form [are] uncon-
vincing.” The district court explained that “[b]ased
on the testimony, it is clear that the document Ray
handed [Corrections Officer] Nedbal for photocopying
could have been a document he created in an attempt to
76 No. 11-3228
manufacture additional evidence to corroborate his
claim that he handed his state post-conviction motion to
Smith for mailing on April 27, 2004.” The district court
further found “[t]he detail in which Ray described the
document in the Disbursement Request form suggested
a purpose beyond a simple request for a thirty-cent
disbursement for photocopying.” And although the
form requires “detailed instructions,” the librarian
testified that “the detail required concerned the direc-
tions for copying, i.e., number of copies, one or two
sides, legal or letter size—not the document to be
copied.” The district court added: “Library personnel were
not expected to determine the authenticity of the docu-
ments submitted for copying. They screened the material
for appropriateness and to insure it did not relate to
a different inmate.” Moreover, prison officials were not
allowed to read legal materials—they mainly looked to
ensure the name of the inmate matched the document.
Based on this testimony, the district court found Ray’s
claim that prison officials lost the Privileged Correspon-
dence Receipt unconvincing. This finding was amply
supported by the evidence.
In response to the dissent, the court states: “[I]t takes
a speculative leap to go from the mere fact that Ray
described the document in the disbursement request
form in a lot of detail to the conclusion that he
fabricated it.” Opinion at 45. The court’s conclusion,
though, flows from its misunderstanding of the record.
Specifically, the court confuses the Disbursement Re-
quest form with the Photocopy Request form. A prisoner
requesting a photocopy must complete both forms, but
No. 11-3228 77
it is the Photocopy Request form, and not the Disburse-
ment Request form, which must include “detailed in-
structions as to what is to be copied.” But it was in the
Disbursement Request form and not the Photocopy
Request form that Ray described in excruciating detail
the purported Privileged Correspondence Receipt, stating:
TWO COPIES OF A CORRECTIONS CORPORA-
TION OF AMERICA PRIVILEGED CORRESPON-
DENCE RECEIPT FORM SIGNED BY CCA SO-
CIAL WORKER SMITH, REGARDING MY PLAC-
ING MY 974.06 MOTION IN HER HANDS
APRIL 27, 2004.
And Ray typed that detailed description of the content
of the purported Privileged Correspondence Receipt
form in the blank entitled: “Reason for Request.” The
Disbursement Request form also required prisoners to
state the “Individual Items Requested,” and here Ray
merely typed “2 Copies of CCA Form.” Then in the Photo-
copy Request form, Ray described the form simply as:
“2 copies of a CCA Mail Form Receipt/’Please’ send the
copies I have requested to me through the institutional
mail. Thank you.”
That Ray included such detail (including that the pur-
ported Privileged Correspondence Receipt form was
signed by Smith and stated that he placed the state court
motion in her hands on April 27, 2004), in the Disburse-
ment Request form when the form merely asked for
the “Reason for Request,” and not in the Photocopy
Request form, is significant for two reasons. First, and
as the district court found, there is no reason to
78 No. 11-3228
provide such detail in the Disbursement Request
which merely served to request a thirty-cent disburse-
ment for photocopying. Second, while the librarian
was responsible for reviewing the Photocopy Request
form to ensure it was filled out correctly and to screen
materials for copying for appropriateness, no similar
review of the Disbursement Request form was required;
rather, according to the library procedures (contained in
the record), the librarian’s responsibility was merely to
authorize the Disbursement Request form indicating
the correct amount charged and then route it appropri-
ately. Officer Nedbal and Librarian Martin’s testimony
at the evidentiary hearing confirmed these facts. And
Officer Nedbal, who approved the Disbursement
Request form, said he merely “glanced at” the “Reason
for Request.” Later, when the librarian screened the
document Ray submitted for copying, the librarian would
compare that document to the general description, i.e.,
“CCA Mail Form Receipt,” Ray put in the Photocopy
Request form. Moreover, as Librarian Martin further
testified, while she would merely be scanning the docu-
ment and description contained in the Photocopy
Request form, “[t]he person making the copies would
have to read that in more detail . . . .” Ray had previously
worked in the library, so he knew how the forms
were processed.
The court’s response to this is “the fact that
librarians were not required to affirmatively verify the
authenticity of documents to be copied does not create
a reasonable inference that the document was there-
fore a fake or nonexistent.” Opinion at 45. I agree. The
No. 11-3228 79
mere fact that a librarian was not required to verify the
authenticity of the document to be copied does not
create an inference that the document was therefore a
fake or nonexistent. But this fact does mean that the
form submitted for copying might not have been the
one described by Ray in the Disbursement Request form.
Then the question is whether the other evidence
allows for the reasonable inference that the Privileged
Correspondence Receipt form was nonexistent or fake.
And it does: Namely, the fact that Ray included the
extensive details of the content of the document to be
copied in the Disbursement Request form, but not in
the Photocopy Request form, creates a reasonable
inference that he did so to invent evidence to support
the inference that there had once been in existence a
Privileged Correspondence Request form signed by
Smith stating that he had given her a state post-conviction
motion for mailing in April 2004. This inference is even
stronger given that in the Photocopy Request form Ray
wrote “ ‘Please’ send the copies I have requested to
me through the institutional mail.” There was no reason
for Ray to state on the Photocopy Request form that
he wanted the form returned to him through the institu-
tional mail system, absent a premeditated plan to
create a paper trail to establish that the purported Privi-
leged Correspondence Request form existed and then
was “lost in the mail.” First, the Photocopy Request
form does not ask the prisoner to specify how he wants
the photocopied materials returned. Second, the evi-
dence creates a reasonable inference that the librarian
had, in the past, personally handed Ray his completed
80 No. 11-3228
copies (and thus Ray needed to specify that he wanted
the copies returned via institutional mail to avoid that
possibility). The librarian knew about Ray’s case and
testified “we did lots of copies for Mr. Ray.” Librarian
Martin also testified that Ray had personally handed
her copy requests in the past and that she usually
picked up the completed copies. Ray also testified that,
in the past when he had asked Librarian Martin for
copies, “she screen them then she gonna make—she gonna
make them, yes.” Third, Ray testified that once he got
his hands on the Privileged Correspondence Receipt
form, his first thought was to make a copy of the docu-
ment and after it was supposedly lost, he explained
how important the copy was. Yet, according to
the record, Ray gave Officer Nedbal the Privileged Cor-
respondence Receipt form, Disbursement Request
form, and Photocopy Request form on April 18, 2010,
which was a Sunday. Besides the fact that there is no
mail delivery on Sunday (and thus Ray did not immedi-
ately request a copy of it), Librarian Martin did not
work on Sundays and because she needed to screen the
copy requests, Ray’s paperwork would need to be
held until Monday when she returned. And Ray had
worked in the library and he testified at length about
some of the procedures related to copy requests, so he
knew full well how things would be processed.9 Thus
9
Besides working in the library and thus knowing the
process for making copies, Ray also testified that Librarian
Martin was not there on the day he brought the forms to the
(continued...)
No. 11-3228 81
under Ray’s version of things, he handed over
possession of this extremely crucial document to
Officer Nedbal so that it could be left sitting in a
basket behind the library desk, as opposed to handing it
personally to Librarian Martin and waiting for the copy
to be made and handed back to him. And then, even
though Ray recognized the importance of the purported
Privileged Correspondence Receipt form, he wrote on
the Photocopy Request form “ ‘Please’ send the copies
I have requested to me through the institutional mail.”
Given the importance Ray claimed for the purported
document, it is reasonable to infer that Ray took
the purported Privileged Correspondence Receipt form
to the library on a Sunday because he knew that
Librarian Martin was not there and couldn’t ask him
about the form 10 or have the copy made for him while he
waited; and that he requested the copies to be sent via
institutional mail so that he could claim it was lost in
the mail. These inferences are further strengthened
when Ray’s response to the purported missing Privi-
9
(...continued)
library—only Officer Nedbal was, and he put the paperwork
in a basket.
10
That Librarian Martin might talk to Ray about the copy
request if he handed it to her personally is reasonable to infer
given the interest she had taken in Ray’s case. She had called
Ray down to the library from his housing unit to show him
this court’s decision on “LexisNexis.” Another time, she had
printed off a “bio” and the Facebook page for Ray’s pro
bono attorney and had given them to Ray.
82 No. 11-3228
leged Correspondence Receipt form is considered: Ray
filed an Information Request form seeking informa-
tion about the supposed missing form, noting that
Nedbal signed the Disbursement Form and Photocopy
Request form “verifying that the document I placed in
his hands matched what I wrote on those forms.” Ray
later wrote the warden asking “for my original copy of
the CCA form to be found and returned to me as soon
as possible or be provided with a copy of the memo that
Mr. Lines sent to staff about this matter, so I could forward the
e-mail to my attorney, so he could prove that the copies alone
[sic] with the original copy was some how missed placed [sic] or
given to the wrong inmate.” (Emphasis added.) Taken
together, all of this evidence adds up to create a very
reasonable and natural inference that Ray had written
a detailed description in the Disbursement Request
form because he knew no one would review the detail
contained in that form and then he requested the copies
be returned through the prison mail system so that he
could feign their disappearance and later use the prison
forms as evidence that he had a Privileged Cor-
respondence Receipt form signed by Smith which
verified the purported mailing of the April 27, 2004
state post-conviction motion. This conclusion is not a
speculative leap, but rather is based on the reasonable
inferences flowing from the various pieces of record
evidence, which when put together form a pretty clear
mosaic showing what happened.
Moreover, it wasn’t just that Ray provided a detailed
description of the supposed content of the purported
Privileged Correspondence Receipt in the Disbursement
No. 11-3228 83
Request form. Also Ray’s strange request to have this
important form returned through the prison mail
system, and then its inexplicable disappearance, create
an inference that the form never existed. There are
several additional pieces of evidence which, when taken
together, further create a reasonable inference that there
was no Privileged Correspondence Receipt. In fact, the
totality of the evidence makes Ray’s entire story utterly
implausible. First, as the district court explained, Ray
had never mentioned the Privileged Correspondence
Receipt in any of his documentation until April 18,
2010. And that was only after this court had granted
his habeas petition on the merits, but remanded to the
district court for a determination on whether the peti-
tion was timely. Yet Ray had specifically referenced
the “Certificate of Service by Mail” form in his first pur-
ported letter to Smith on June 1, 2004, and in his “Motion
for Protective Order Staying And Abeying [sic] Peti-
tioner’s Petition for Writ of Habeas Corpus Filed
Pursuant to 28 U.S.C. § 2254,” which he filed with his
habeas petition on February 28, 2007. Ray even noted
in bold that he had attached a copy of the Certificate of
Service to his motion (and stated that it was signed by
Smith). Ray also attached copies of the three letters he
claims he sent to Smith asking her to confirm that she had
mailed his motion to the state court. The district court
aptly stated the absurdity of this: “Yet, he failed to even
reference the one document [the Privileged Correspon-
dence Receipt] which supposedly corroborated his
account that bore someone’s signature other than his
own.” The district court reasonably inferred from the
84 No. 11-3228
evidence that because Ray knew the importance of men-
tioning the Certificate of Service by Mail form in the
court filings, he surely would have also mentioned the
Privileged Correspondence Receipt if one had truly
existed.11
11
The court’s response: This evidence “is simply insufficient to
jump to the conclusion that the receipt must therefore not
exist.” Opinion at 46. But Ray’s failure to ever mention the
supposed Privileged Correspondence Receipt through years
of litigation and the fact that his first mention of the form
came only after this court held that his constitutional rights
had been violated, creates a very reasonable inference that
there was no such receipt in the first instance. This is not
jumping to conclusions but using inferential reasoning from
the evidence presented. See United States v. An Article of Device,
731 F.2d 1253, 1262 (7th Cir. 1984) (“[T]he reasoning process
normally begins with known facts which form the basis for
inferred facts from which further inferences can be drawn. So
long as the finder of fact is reasonably certain of a pre-
liminary inference, it is not unreasonable to use that inference
as the basis for further reasoning.”) (internal quotation omit-
ted); Wisconsin Memorial Park Co. v. C.I.R., 255 F.2d 751, 753
(7th Cir. 1958) (“Frequently the ultimate issue is resolved as
the result of drawing inferences from the evidence received
during the trial. Trust in inference is simply the belief that
if there is a firm basis for the starting point the derived judg-
ment is acceptable. The difference between speculation and
inference lies in the substantiality of the evidence constituting
the premise. Inductive reasoning claims the premises con-
stitute some evidence for the conclusions and in law we
speak in terms of the probability and likelihood that the
(continued...)
No. 11-3228 85
There is more, though. The district court also found
that Ray’s explanation for his failure to mention the
“Privileged Correspondence Receipt” form earlier is
inconsistent and not plausible. The district court
explained that Ray had “testified that another inmate
who was helping him had it in his possession when he
was transferred to a different institution, and it
wasn’t until later (he’s not sure when) that it was
returned to him.” And Ray claimed he did not under-
stand federal habeas law or the significance of the form,
but Ray was well-versed in legal proceedings. The
district court added that the fact that Ray “noted in
bold in a motion filed contemporaneously with his
petition that the ‘Certificate of Service’ was signed by
‘Tamara Smith,’ shows that he knew the importance of
a document signed by someone on the prison staff.” And
even if one accepts his testimony that he allowed one of
his inmate helpers who was later transferred to a
different institution to retain possession of such a
crucial document, nothing prevented him from at
least mentioning it in one of his previous filings.
Ray’s failure to mention the Privileged Correspondence
Receipt form until after this court remanded the case to
11
(...continued)
premises buttress the conclusions.”) The court’s response
also wrongly considers this fact in isolation, without reference
to the several other facts which similarly created an infer-
ence that there never was a Privileged Correspondence Receipt.
86 No. 11-3228
the district court is extremely suspect. But Ray’s excuse
for not mentioning it earlier presents an even greater
implausibility in Ray’s entire story than the district
court recognized. Here, the district court misread the
record when it stated that Ray had testified “that
another inmate who was helping him had it in his pos-
session when he was transferred to a different
institution, and it wasn’t until later (he’s not sure
when) that it was returned to him.” Actually, Ray
testified on direct examination, under questioning
from his own attorney, that once the Seventh Circuit’s
opinion came down in April, he “started trying to
reach out trying to find the inmate who was transferred
from the institution with my receipt.” Ray further
testified: “I was trying to get a copy for me and to mail
you the original.” So, even though Ray was now repre-
sented by very competent attorneys, we are supposed
to believe that after reading the April 1, 2010 opinion,
he took it upon himself to track down the form. Ray’s
attorney even acknowledged he was out of the loop,
stating in his closing argument that “quite frankly, when
I found out what had happened [with the Privileged
Correspondence Receipt] I was livid because I would
have driven to Wisconsin myself to pick that form up
and provide it to the Court.” 1 2
12
The court concludes that it is not unusual that Ray would
attempt to track down the Privileged Correspondence Receipt
himself, rather than elicit help from his attorney, stating
“attorney-client communication is neither quick nor easy
(continued...)
No. 11-3228 87
The absurdity is even more obvious when the timing
of everything is considered. Ray testified that the
prisoner was transferred to another prison with the
Privileged Correspondence Receipt form while helping
Ray with his habeas petition, and that he (Ray) did not
have the Privileged Correspondence Receipt at the time
that he filed his habeas petition. Ray filed the habeas
petition in February 2007, which means that under
Ray’s version of events, he lost possession of the form
sometime before February 27, 2007. It was April of
2010—more than three years later—when Ray “started
trying to reach out trying to find the inmate.” Even if
Ray began that search immediately (Thursday, April 1,
2010), that would have given Ray only 18 days to get
the Privileged Correspondence Receipt back, since
Ray supposedly dropped it off for copying on Sunday,
12
(...continued)
when the client is in prison and can be transferred at any
time with little notice if any to the attorney, further delaying
communication.” Opinion at 46. That explanation might make
sense if Ray were attempting to gather evidence located
within the same prison. But, as noted above, Ray needed to
track down a prisoner who had been transferred to another
prison more than three years previously. If communications
between a prisoner and his attorney are neither quick nor
easy, as the court infers, it is entirely reasonable to infer that
an overly eager prisoner would solicit help from his attorney
to track down a prisoner in another unknown prison (also
subject to a transfer to a new prison), because communica-
tions between such prisoners would be even slower and more
difficult.
88 No. 11-3228
April 18, 2010. Within those eighteen days, then, we are
supposed to believe that Ray was first able to track
down the other prisoner, even though that prisoner
had been transferred more than three years previ-
ously. That by itself would be a challenge given that in
the two years surrounding Ray’s litigation, Ray himself
was transferred to five different prisons.1 3 And
remember Ray was the one “reaching out”—he didn’t say
that he asked his top-notch attorneys for help, and if
his attorneys were the ones tracking down the former
prisoner, they never would have suggested that the
form be mailed to Ray who was still in prison. Then
Ray would have us believe that he was able to communi-
cate with that prisoner; and that that prisoner still had
a copy of his Privileged Correspondence Receipt from
more than three years ago. And we are to further believe
that that prisoner was able to send the document to
Ray—leaving one prison and thus undergoing the delay
caused by any screening procedures—and then be
received at Ray’s prison, clear screening and be
delivered to Ray. All of this in eighteen days, which
13
In April 2004, Ray was transferred from Diamondback to
Green Bay and then in May 2005 from Green Bay to Dodge;
followed by a transfer from Dodge to Columbia and then in
February 2006, from Columbia to New Lisbon. Other
than Diamondback, the other prisons were all located in
Wisconsin.
No. 11-3228 89
included three weekends. 1 4 And then the prison conve-
niently lost it! This story is utterly unbelievable.
f. Ray’s knowledge of habeas law.
The final aspect of the district court’s reasoning that
the court attacks is the district court’s finding that
Ray’s assertion that he did not understand the law gov-
erning habeas corpus is not plausible. The court reasons
that there was no evidence to support the district
court’s branding Ray a sophisticated prison litigant.
14
The court admits that this conclusion is “not without
force,” but then says that “unfortunately for the state, it did not
actually produce any evidence to support it.” Opinion at 46.
However, this conclusion is proven by Ray’s testimony. Specifi-
cally, as detailed above, Ray testified that once the Seventh
Circuit’s opinion came down in April, he “started trying to
reach out trying to find the inmate who was transferred from
the institution with my receipt.” Thus, according to Ray’s
own testimony, he neither had the purported Privileged
Correspondence Receipt form on April 1, nor knew the
location of the prisoner who supposedly had it. And then
Ray claimed he sent that form for copying on Sunday, April 18,
2010. Thus, under Ray’s own version of events, as he testified
to at the evidentiary hearing, the Privileged Correspondence
Receipt form was retrieved within eighteen days. It is more
than reasonable to infer from the sheer implausibility of this
timing that Ray made the whole thing up, especially in light
of the delay and difficulty prisoners face when trying to com-
municate with their own attorneys, as the court itself infers.
See Opinion at 46.
90 No. 11-3228
Opinion at 50. The court first criticizes the district
court’s statement that Ray had two or three boxes of
legal materials when he was at Diamondback. The court
then rhetorically asks: “Were these small shoe boxes
or large moving boxes? Were they filled with distinct
documents or multiple drafts or copies of only a
handful unique ones?” before concluding “[t]he record
does not say.” Opinion at 47.
The court, though, gives short shrift to the district
court’s other reason for rejecting Ray’s claim that he did
not understand the law governing habeas corpus. Ray
had testified before the district court that when he
wrote the state court on October 4, 2006, to inquire on
the status of the post-conviction motion, he knew
nothing about federal habeas law and had talked to no
one about it. The district court explained that “Ray’s
initial filing in the district court came less than six
months after he claims he first became aware that his
original state post-conviction motion was not filed in
state court and that filing demonstrates his ‘detailed
knowledge of not only the one-year limitation period
for federal habeas petitions, but also the mailbox rule
and the rules governing tolling of the one-year period.’ ”
In fact, though, the record is even more damning
than what the district court found. While Ray filed his
habeas petition in February 2007, Ray dated the signa-
ture line of the pro se Petition for Protective Order
Staying and Abeying (sic) Petitioner’s Writ of Habeas
Corpus, which accompanied his habeas petition, Novem-
ber 27. (And since Ray filed the Petition in Febru-
No. 11-3228 91
ary 2007, November 27 must be November 27, 2006.)
Ray signed that document less than two months after
he sent the letter to the state court inquiring about his
supposed missing post-conviction motion. In Ray’s
pro se Petition for Protective Order Staying and Abeying
(sic) Petitioner’s Writ of Habeas Corpus, Ray demon-
strated his extensive knowledge of habeas law, including
the one-year statute of limitations, the mailbox rule, and
tolling principles. (Attached as Appendix E is that pro se
petition so that there is no question of the depth of
Ray’s knowledge.) Thus Ray clearly knew the importance
of showing that he had given the state post-convic-
tion motion to Smith for mailing on April 27, 2004, around
the time he wrote to the Wisconsin state court. Given
Ray’s detailed knowledge of habeas law in Novem-
ber 2006, it is reasonable to infer that Ray had similarly
detailed knowledge in October 2006, at the time he
wrote the state court to supposedly inquire about the
status of his state court petition.1 5
15
The court states that “[i]t is not implausible that Ray would
obtain a working knowledge of habeas in two months,
especially after the need for such knowledge took on in-
creased urgency when he learned that his state motion was
never filed.” Opinion at 48. While it might be plausible that
Ray obtained working knowledge of habeas law in two
months, it is equally plausible to infer that Ray had that knowl-
edge in October of 2006 when he wrote the letter to the
state court. And given the totality of the evidence in this case
indicating that Ray concocted the entire story about giving
the state post-conviction motion to Smith, this inference
was more than reasonable.
92 No. 11-3228
4. The state’s theory that Ray manufactured evi-
dence.
The court’s last main rationale for rejecting the district
court’s factual findings seems to be its view that the
only way to find Ray’s testimony not credible is to
believe that Ray “concoct[ed] a sophisticated scheme in
October 2006 to assert a mailbox rule claim and avert
AEDPA’s one-year time bar.” Opinion at 48. The court
reiterates that view later, stating: “The state’s argument
requires us to believe that Ray knew in 2004 that the
mailbox rule would apply to a section 974.06 post-con-
viction motion filed in Wisconsin, even when the motion
is not received by the state court—issues that we
decide today as a matter of first impression.” Opinion
at 50.
The state’s theory requires nothing of the sort. Rather,
all we need to believe is that on October 4, 2006, Ray
knew that he could not pursue habeas relief unless he
had given a state post-conviction motion to a prison
official within the one-year statute of limitations.1 6 And
16
There was also no need for Ray to foresee this court’s holding
that the mailbox rule applied to a state post-conviction
motion because Ray wasn’t relying on that theory but on the
theory of equitable tolling. In this regard, the court is also
wrong to say: “But Ray does not argue that he diligently
followed up with the state court during the two years that
passed from the time he allegedly gave Ms. Smith his motion
to the time he filed his second, supplemental motion.” Opinion
at 51. Actually, though, Ray did argue that he had been dili-
(continued...)
No. 11-3228 93
Ray undisputedly had that knowledge on November 27,
because that is the date on the signature line of his
signed pro se “Motion for Protective Order Staying And
Abeying [sic] Petitioner’s Petition for Writ of Habeas
Corpus Filed Pursuant to 28 U.S.C. § 2254.” 1 7 Everything
else could have easily been back-filled: Ray could have
created the letters he claimed to have mailed to Smith, as
16
(...continued)
gent. In the affidavit he filed along with his pro se habeas
petition, Ray stressed that he had written Smith on June 1, 2004,
September 9, 2004, and June 15, 2005, and then again after he
learned his state court motion had not been filed; he also
added that he had then also written the prison warden. Ray
then concluded that he “need only show that an ‘extra-
ordinary circumstances’ (sic) beyond control of prisoner for
application of equitable tolling to obtain the necessary
federal habeas review and he demonstrated due diligence in
trying to rectify the matter.” It was only after counsel was
appointed that the theory of equitable tolling was abandoned.
But equitable tolling was Ray’s theory back in October 2006
when he sent the letter to the state court inquiring on the status
of his post-conviction motion. This also explains why Ray
would bother to send a letter to Smith and the warden after
he “learned” that the state court had not received his let-
ter—to bolster his claim of diligence.
17
In support of his Motion for Protective Order, Ray also
submitted an undated affidavit, which argued that there
were “extraordinary circumstances” beyond control of prisoner
for application of equitable tolling to obtain the neces-
sary federal habeas review. This affidavit also illustrated
Ray’s knowledge of the tolling principle.
94 No. 11-3228
well as the Certificate of Service, and then merely dated
them 2004. Similarly, it wouldn’t take much to come
up with the idea of pretending the prison lost a
“Privileged Correspondence Receipt” during copying.
Moreover, contrary to the court’s conclusion that
“without evidence there is no basis for believing” Ray
concocted a scheme to avoid the statute of limitations,
there is ample circumstantial evidence that Ray
invented the April 27, 2004, mailing and the “loss” of the
“Privileged Correspondence Receipt.” Much of this
evidence was discussed above. But there is still more.
For instance, the only document Ray had notarized was
the October 4, 2006, letter he sent to the Wisconsin
state court inquiring on the status of the motion he sup-
posedly gave Smith in April 2004. When asked why
he notarized the letter, he said “Because it’s a court docu-
ment—it’s going to the court. It’s like a court document.”
But this was merely a letter and he wanted it notarized.
Yet he didn’t attempt to have the state post-conviction
motion notarized. His explanation makes no sense and
the existence of the notary seal on the October 4, 2006
letter to the Wisconsin court shows that Ray was com-
pletely aware of the significance of that letter and this
supports the factual finding that Ray manufactured
documentation to support a non-existent state post-con-
viction motion.
Additionally, the district court reasoned that Ray’s
lack of diligence in following up with the state court
clerk about the post-conviction motion he purported to
file in April 2004, until October of 2006, also supports
No. 11-3228 95
the idea that Ray made up the supposed April 27, 2004,
motion. I agree. Had Ray truly filed a motion with
the state court in April 2004, he would not have waited
more than two years to inquire on its status. See Allen,
471 F.3d at 1198 (“The district court may take into
account any and all relevant circumstances, including
any lack of diligence on the part of Allen in fol-
lowing up in a manner that would be expected of a rea-
sonable person in his circumstances, in deciding
whether the notice was delivered to the prison authori-
ties.”).18 Ray tried to explain away his lack of diligence
by saying that he was told by other prisoners not to
bother the court. But as the district court also
aptly noted, at the very least Ray would have had to
contact the state court to let it know he had been trans-
18
Not only does Allen support the conclusion that it is reason-
able to infer that Ray never gave Smith a state post-conviction
motion from the fact that he didn’t inquire on the filing for
more than two years, the court’s own reasoning demonstrates
that this is a reasonable inference. In explaining why a
prisoner might mail a state post-conviction motion from
Oklahoma to a Wisconsin court, even though he knew he
was being transferred to Wisconsin, the court reasons that a
normal prisoner would not delay filing “such a critical motion
(and consequently, delay his potential release from prison),
for an indefinite period of time, . . . .” Opinion at 50. Similarly,
it is reasonable to infer “a normal prisoner” would not delay
inquiring on such a critical motion for more than two years.
96 No. 11-3228
ferred.19 And Ray was trans-ferred not just once, but four
times between the supposed mailing of the motion in
April 2004 and the first time Ray contacted the state
court to inquire of his petition in October 2006. See supra
at 88 n.13.
Moreover, the district court found implausible Ray’s
claim that he sent three letters to Smith in an effort to
confirm she mailed the motion to state court. Besides
noting that there was no way to tell from the ap-
pearance of the letters whether Ray mailed them, the
district court also found it curious that Ray would retain
a copy of a letter he supposedly sent to Smith only a
month after he handed her his state motion, but did
not keep a copy of the motion itself. The district court
added that it was also curious that Ray stated in an af-
fidavit that he also wrote Diamondback regarding his
19
The court characterizes Ray’s failure to notify the state
court of his prison transfers as “Ray’s shortcomings as a pro se
litigant” Opinion at 46, which is “simply insufficient to jump to
the conclusion that the receipt must therefore not exist.”
Opinion at 46. But under Ray’s version of things, he was
concerned enough about the status of his motion to ask other
prisoners what to do. And it is more than reasonable to
infer from that fact that even a pro se litigant would at that
point contact the court to notify the court of his prison
transfers—not as a matter of civil procedure, but to assure that
he received notice of what was happening to the motion. Like-
wise, it is reasonable to infer that Ray did not contact the
court, even to notify it of his transfers, because he had never
filed a motion with the court.
No. 11-3228 97
lost property on the same dates that appear on his letters
to Smith, but Ray couldn’t remember if he kept a copy
of those letters. The district court was right that these
inconsistencies all rendered Ray’s story questionable. It
is also unbelievable that even though Ray heard nothing
from Smith in response to his purported June 1, 2004,
letter, he would continue to write to her on September 9,
2004, and then even after he had not heard anything
from Smith for over a year, he wrote to her a third time
on June 15, 2005. And, then, after writing to the state
court and supposedly learning for the first time that the
motion was not filed, Ray claimed again that he wrote
to Smith—from whom, under his version of events, he
had never received a response—and also the prison
warden, to find out what happened to his petition.2 0 It is
utterly unbelievable that a prisoner would continue
such a letter-writing campaign, absent a desire to give
credence to his earlier story that he had given Smith
the petition.
In the end, yes, we have to believe that Ray concocted
a story—but the evidence taken as a whole overwhelm-
ingly supports, perhaps even compels, that finding. It is
also not nearly the sophisticated scheme the court
thinks it is and it also didn’t have to start back in 2004,
20
In both his letter to the warden and his fourth supposed
letter to Smith, Ray stated that he had given Smith the post-
conviction motion on April 29, 2004. In all of the other docu-
ments, and in his testimony before the district court, Ray
stated he had given Smith the motion on April 27, 2004.
98 No. 11-3228
but rather could have been hatched just a few months
before Ray turned to federal court for habeas relief.
III.
As noted, the court holds that the district court’s factual
findings (that Ray was not credible and that Ray had not
given Smith a state post-conviction motion for mailing
on April 27, 2004) were clearly erroneous. In reaching
this conclusion, though, the court gives only passing
mention to many of the inconsistencies and implausi-
bilities in Ray’s story and his supposedly supporting
documentation which the district court relied upon to
justify its findings. But contrary to the court’s attempts
to downplay those inconsistencies and implausibilities,
they all did call Ray’s story into question. And two
aspects of Ray’s story were so unbelievable that alone
they justify the district court’s factual findings: (1) Ray’s
claim of ignorance of habeas law on October 4, 2006, when
he wrote to the state court, when just the next month
he signed a habeas petition that detailed habeas law, the
statute of limitations, the prisoner mailbox rule, and the
principle of tolling; and (2) Ray’s claim that he never
mentioned the “Privileged Correspondence Receipt”
form in his habeas petition or other earlier documenta-
tion because the prisoner who had been helping him
with his habeas petition had been transferred to another
prison with that form and then later that that form
was lost. That would require, in eighteen days, Ray
(and not his attorneys) to be able to track down the
other prisoner who would still have a copy of the form
No. 11-3228 99
from more than three years, and have the form success-
fully mailed out of one prison system and delivered
into another, and once retrieved, lost in the prison mail.
While I believe these two implausibilities alone are
sufficient to affirm the district court’s factual findings,
there were many other inconsistencies and implausi-
bilities relied upon by the district court in reaching its
finding that Ray was not credible and that Ray had not
given a state post-conviction motion to Smith on April 27,
2012. The court downplays or ignores these, but taken
together they all demonstrate that the district court’s
finding that Ray was not credible and that Ray had
not given Smith a state post-conviction motion for
mailing on April 27, 2004 was well-supported by the
evidence. See, e.g., Anderson, 470 U.S. at 575 (“Documents
or objective evidence may contradict the witness’ story;
or the story itself may be so internally inconsistent
or implausible on its face that a reasonable factfinder
would not credit it.”).
I regret consuming everyone’s time in laying out the
minutiae of the record. But given the court’s conclusion
that the district court committed clear error in finding
Ray incredible and in finding that he did not give Smith
the state post-conviction motion on April 27, 2004, it is
necessary to detail the many, many inconsistencies,
contradictions, and omissions in Ray’s story, in addition
to highlighting the sheer implausibility of several
aspects of Ray’s story in light of the record. As these
details show, Ray’s problem with the district court was
not that the district court branded him a liar. Rather,
Ray’s problem is that the district court reviewed all of
100 No. 11-3228
the evidence and heard Ray testify in person and after
this evidentiary hearing found that he was a liar. This
conclusion was not based on improper speculation, but
on the totality of the reasonable inferences flowing
from the record evidence.2 1 A thorough review of the
cold record verifies this assessment. But in addition to
the record, the district court had the benefit of watching
Ray’s demeanor and hearing him try to explain away all
of the inconsistencies, vagaries, and implausibilities of
his story. Our court should not substitute its judgment
for the district court’s and by doing so at such great
lengths today it creates dangerous precedent in general,
and even more dangerous precedent when the prisoner
mailbox rule is at issue and the court shifts the burden of
21
Grepke v. General Elec. Co., 280 F.2d 508, 511-12 (7th Cir. 1960)
(quoting Lavender v. Kurn, 327 U.S. 645, 643 (1946) (“ ‘It is no
answer to say that the jury’s verdict involved speculation
and conjecture. Whenever facts are in dispute or the evidence
is such that fair-minded men may draw different inferences,
a measure of speculation and conjecture is required on the
part of those whose duty it is to settle the dispute by choosing
what seems to them to be the most reasonable inference.
Only when there is a complete absence of probative facts
to support the conclusion reached does a reversible error
appear. But where, as here, there is an evidentiary basis for
the jury’s verdict, the jury is free to discard or disbelieve
whatever facts are inconsistent with its conclusion. And the
appellate court’s function is exhausted when that evidentiary
basis becomes apparent, it being immaterial that the court
might draw a contrary inference or feel that another conclu-
sion is more reasonable.’ ”).
No. 11-3228 101
proof to the state solely on the basis of a prisoner’s af-
fidavit. Therefore, while I concur in the court’s
holding that the prisoner mailbox rule applies to
Wisconsin post-conviction filings, I dissent from the
court’s holding that the state bore the burden of
proving Ray had not given Smith a state post-conviction
motion for mailing on April 27, 2004, and from its
further holding that the district court committed clear
error in finding that Ray had not given the motion
to Smith.
102 No. 11-3228
APPENDIX A
No. 11-3228 103
APPENDIX B
104 No. 11-3228
APPENDIX C
No. 11-3228 105
APPENDIX D
106 No. 11-3228
APPENDIX E
No. 11-3228 107
108 No. 11-3228
No. 11-3228 109
11-19-12