Mark F. Taylor v. Billie J. Michael ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2855
M ARK F. T AYLOR,
Petitioner-Appellant,
v.
B ILLIE J. M ICHAEL, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 10-cv-2185—Harold A. Baker, Judge.
A RGUED A PRIL 25, 2013—D ECIDED JULY 30, 2013
Before M ANION and K ANNE, Circuit Judges, and L EE ,
District Judge.Œ
K ANNE, Circuit Judge. The Grant Park, Illinois, police
arrested Mark F. Taylor on August 5, 2000, based on
allegations that he had engaged in improper sexual
behavior with three children. He was subsequently
Œ
The Honorable John Z. Lee of the United States District Court
for the Northern District of Illinois, sitting by designation.
2 No. 11-2855
charged and convicted in Illinois state court for a variety
of crimes related to these allegations. Taylor challenged
his conviction on both direct appeal and collateral review
in the Illinois system with the assistance of retained
counsel. Failing at each step along the way, Taylor next
attempted to file a pro se petition for habeas corpus in
federal court. By the time Taylor filed his petition, how-
ever, the statutorily-imposed time limit for presenting
his habeas case had expired. Taylor appears before us
now requesting that we exercise our equitable powers
to toll the limitations period and take up the merits of
his case. Finding that Taylor does not meet the standard
for equitable tolling, we agree with the district court
that Taylor’s petition is not timely and should therefore
be denied.
I. B ACKGROUND
Because we determine that Taylor’s petition is
untimely, it is unnecessary to plumb the factual depths
of his case. It suffices to say that on January 7, 2002,
he was convicted on eight criminal counts (out of a
charged nine) for initiating inappropriate relationships
with several minor children. After the trial, Taylor’s
retained attorney—Mark D. Johnson—withdrew from
the case. With the assistance of new counsel, Taylor
moved for a new trial, alleging a variety of errors
including ineffective assistance of counsel. The trial
court agreed that Johnson’s representation was deficient
in some respects, specifically in Johnson’s failure to
impeach or even cross-examine some witnesses. Conse-
No. 11-2855 3
quently, the court vacated four of the eight counts
of conviction. On the remaining four counts, the
trial court sentenced Taylor to eleven years in prison (an
eleven-year sentence for one count that ran concurrently
with a 180-day sentence for the three other counts).
Taylor appealed the four unvacated counts. He contin-
ued to argue that he was denied effective assistance of
counsel with respect to these counts because of Johnson’s
failures during the trial. Taylor also made several other
arguments: that his warrantless arrest should have been
quashed; that he was denied his right to remain silent;
that he did not knowingly and intelligently waive his
right to a jury trial; that the trial court should have held
a competency hearing for several of the underage wit-
nesses; that the court improperly allowed video testi-
mony; and that Taylor’s silence was improperly taken
into account at sentencing. (Appellant’s Br. at 12.) Rejecting
all of Taylor’s arguments, the Illinois Appellate Court
affirmed Taylor’s convictions on May 28, 2004. The
Illinois Supreme Court rejected Taylor’s Petition for
Leave to Appeal (“PLA”) on November 24, 2004, thereby
ending his direct appeal.
Taylor filed for state post-conviction relief on April 18,
2005. See 725 ILCS 5/122-1. In his petition to the Circuit
Court of Kankakee County, Taylor argued that his trial
attorney (Johnson) represented him while under a
conflict of interest and was thus unconstitutionally inef-
fective. The crux of Taylor’s argument was that, while
Johnson was putatively representing Taylor in the
original Kankakee County criminal proceedings, Johnson
was simultaneously under indictment in McLean County,
4 No. 11-2855
Illinois, on four felony bribery charges.1 Taylor alleged
that Johnson never informed him, nor informed the trial
court, of the pending charges and that, if Taylor had
known of the charges, he would not have hired Johnson.
Finding Taylor’s arguments unpersuasive, the trial court
dismissed Taylor’s post-conviction petition on Novem-
ber 10, 2005. The Illinois Appellate Court affirmed that
judgment on December 6, 2007.
Taylor wanted to appeal his case further, but he contin-
ued to have trouble with the attorneys he hired. After
the Illinois Appellate Court affirmed the dismissal of
Taylor’s petition for post-conviction relief, he retained
America’s Criminal Defense Group (“ACDG”), which he
describes as “an online law firm based in California.”
(Appellant’s Br. at 15.) It seems that ACDG served as a
point of contact for Taylor and found attorneys who
could represent him in his continuing appeals. ACDG
initially assigned Nebraska attorney Paula Hutchinson
to Taylor’s case. She filed a petition for rehearing with
the Illinois Appellate Court after it affirmed the
dismissal of Taylor’s post-conviction petition. Taylor
says, however, that “Hutchinson was non-responsive on
a number of occasions to queries by both previous
counsel . . . and by Mr. Taylor.” 2 (Id.)
1
Johnson eventually pled guilty to a misdemeanor offense,
but the bribery charges were dismissed.
2
Taylor’s description of Hutchinson is consistent with the
fact that the Nebraska Supreme Court suspended Hutchinson’s
law license in 2010 for neglecting clients.
No. 11-2855 5
ACDG next assigned attorney Ross M. Eagle to Taylor’s
case. Eagle filed Taylor’s post-conviction PLA in the
Illinois Supreme Court and remained his attorney
through that court’s denial of the PLA on May 28, 2009.
Taylor alleges, however, that Eagle did not inform him
of the denial until a meeting on July 29, 2009, over two
months later. During that meeting, says Taylor, Eagle gave
him a copy of Jimenez v. Quarterman, 555 U.S. 113 (2009),
and told him that the deadline for filing a petition of
habeas corpus in federal court was one year from the
PLA denial plus the time during which he could have
filed a petition for certiorari with the U.S. Supreme
Court. Note, however, that this calculation was not
correct. Jimenez stands for the proposition that the lim-
itations period is tolled during the period a defendant
can petition for certiorari on direct appeal, id. at 119-20,
but does not speak to the post-conviction process. Indeed,
a certiorari petition from post-conviction review does
not toll the time limit or otherwise act as a grace pe-
riod. Lawrence v. Florida, 549 U.S. 327, 331-32 (2007). Taylor
has not presented us with any method of verifying the
content of that July 29 meeting, such as an affidavit from
Eagle, but it is apparent that Taylor misunderstood the law
on this point.
Based on that July 29 meeting, and on communication
between Taylor’s mother and ACDG in the fall of 2009,
Taylor continued to believe that ACDG attorneys
would file a habeas corpus petition on his behalf. In
January 2010, however, ACDG confirmed to Taylor that
it would not represent him in federal post-conviction
review. Taylor searched for alternate counsel and began
to prepare a pro se petition.
6 No. 11-2855
Taylor filed his pro se habeas corpus petition in the
United States District Court for the Central District of
Illinois on August 17, 2010. The petition alleged that
Taylor was denied the right to trial counsel and that he
was denied due process based on the state’s alleged
presentation of perjured testimony at trial. The first
claim mirrored Taylor’s arguments from the state post-
conviction proceedings—that Johnson represented
Taylor under a conflict of interest and was otherwise
ineffective. On the due process claim, Taylor argued
that the recent conviction of Grant Park Police Chief
Scott Fitts for a bribery and extortion scheme would
support a finding that Fitts, who had testified against
Taylor at trial, had fabricated all or part of his testimony.
Taylor’s petition made clear he assumed his filing was
timely. The filing deadline, he stated, was August 26,
2010. Taylor calculated this date as one year from
the date the Illinois Supreme Court rejected his PLA,
plus a 90-day grace period (the period Taylor erroneously
believed was tolled for the filing of a certiorari petition
with the U.S. Supreme Court). The respondent, however,
moved to dismiss the petition as time-barred under
28 U.S.C. § 2244(d)(1). The district court granted the
motion and entered judgment on that basis on July 6,
2011. (R. 13.)
We granted Taylor’s request for a certificate of
appealability on March 29, 2012. (Dkt. 13.) In our order,
we decided that Taylor had met the certificate of
appealability standard for the two substantive argu-
ments he made to the district court: that he had received
No. 11-2855 7
unconstitutionally ineffective assistance of trial counsel
and that the state had denied him due process by pre-
senting Fitts’s perjured testimony. (Id.) We noted,
however, that it would be necessary for both parties to
“address the antecedent timeliness questions presented
by this appeal.” (Id.) In the end, these timeliness
questions dictate the outcome of this case. For the
reasons described below, we agree with the district
court that Taylor’s petition was untimely.
II. A NALYSIS
Taylor’s petition for a writ of habeas corpus was undeni-
ably tardy. 3 Taylor does not deny this fact, although
3
This case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Pub. L. No. 104-132, 110
Stat. 1214 (1996). Under 28 U.S.C. § 2244, there is a one-year
limitations period for filing a habeas corpus petition in
federal court. See 28 U.S.C. § 2244(d)(1). This period begins to
run from the latest of:
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review; . . . [or]
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered
through the exercise of due diligence.
Id. In addition, “[t]he time during which a properly filed
application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending
(continued...)
8 No. 11-2855
3
(...continued)
shall not be counted toward any period of limitation under
this subsection.” 28 U.S.C. § 2244(d)(2).
The wrinkle in Taylor’s case is that each claim presents a
different date on which to begin the timeliness calculation.
This court has not yet decided how to evaluate the timeliness
of a habeas petition that presents multiple claims, and
we requested briefing on the issue by the parties in our certifi-
cate of appealability. (Dkt. 13.) Our two basic options seem to
be either (1) evaluating timeliness on a claim-by-claim basis,
or (2) considering the petition in its entirety (so that if any
claim is timely under AEDPA’s limitation period, then all
claims may be considered). Here, however, it is not necessary
to resolve the question, and so we reserve it for another day.
Even presuming the outcome that is most generous to the
petitioner—that every claim should be considered if any claim
is timely—we would find Taylor’s petition untimely. We take
note, though, of the fact that each of our sister circuits to
consider the issue has determined that, in the habeas context, a
petition’s timeliness should be evaluated on a claim-by-claim
basis. See Zack v. Tucker, 704 F.3d 917, 922-25 (11th Cir. 2013) (en
banc), for an in-depth discussion of Supreme Court and circuit
court decisions relevant to this issue.
To calculate the timeliness of Taylor’s habeas corpus
petition, then, we begin by looking to Taylor’s substantive
claims to find the “date on which the factual predicate of the
claim or claims presented could have been discovered.” 28
U.S.C. § 2244(d)(1)(D). The very latest date from which we could
start Taylor’s one year clock is May 28, 2009—the date of
Fitts’s conviction (coincidentally also the date on which the
Illinois Supreme Court denied Taylor’s PLA). Using that date,
(continued...)
No. 11-2855 9
he advances an argument for why his tardiness should
be excused by this court: that some period of time
should have been equitably tolled. We cannot find the
equitable tolling argument convincing, however, and so
we dismiss this case for the simple reason that Taylor
did not file his petition within the statutorily prescribed
time limit.
Equitable tolling—a court’s decision to toll some period
of time to allow a petitioner to overcome an otherwise
breached limitations period—is an exceptional remedy
available to a habeas petitioner who shows: “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and pre-
vented timely filing.” Holland v. Florida, 130 S. Ct. 2549,
2562 (2010) (internal quotation marks omitted); accord
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioners
bear the burden of proving that they qualify for
equitable tolling. Ray v. Clements, 700 F.3d 993, 1007 (7th
Cir. 2012); see also Pace, 544 U.S. at 418.
Taylor argues that both prongs of Holland’s test are
met in his case. First, he says, he has been diligent in
pursuing his rights. As soon as ACDG informed him of
3
(...continued)
Taylor’s petition would have been due in federal court no
later than May 28, 2010, several months before Taylor actually
filed. Thus, even using the most forgiving possible timeline,
Taylor still requires some extra help in meeting AEDPA’s
limitations period before a federal court can review the
merits of his petition.
10 No. 11-2855
its decision to discontinue representation, Taylor claims
that he began working on his pro se petition, which
he believed to be due to the district court by August 26,
2010. Second, Taylor argues that the actions of ACDG
(e.g. not telling him about the Illinois Supreme Court’s
decision until July 2009 and delaying the discontinuation
of representation until January 2010) amount to “extraor-
dinary circumstances” that prevented timely filing.
“[D]raw[ing] upon decisions made in other similar cases
for guidance,” Holland, 130 S. Ct. at 2563, however, we
cannot find Taylor’s arguments convincing.
Although we are mindful of “equity’s resistance to
rigid rules,” id., we think that Holland ably illustrates a
diligent pursuit of rights in the face of extraordinary
circumstances in the habeas context. Holland, a death
row inmate in Florida, attempted to keep in contact with
his court-appointed attorney throughout his state post-
conviction proceedings. Id. at 2555. Specifically, he re-
peatedly sought assurance that his claims would be
preserved for federal habeas review and that statutory
deadlines would be met. Id. His attorney’s responses
were irregular. Id. Holland repeatedly wrote to both
the Florida Supreme Court and its clerk to ask that his
attorney be removed from the case because of this
failure to communicate; these requests were denied. Id. at
2555-56. After the attorney argued Holland’s case in
the Florida Supreme Court, Holland again wrote to the
attorney to stress the importance of filing a timely
federal habeas petition. Id. at 2556. He made such
requests repeatedly. Id. at 2556-57.
No. 11-2855 11
Holland’s AEDPA time limit expired twelve days
after the Florida Supreme Court denied relief; Holland,
however, did not learn of the court’s ruling until five
weeks later while he was working in the prison library.
Id. “He immediately wrote out his own pro se fed-
eral habeas petition and mailed it to the Federal
District Court for the Southern District of Florida the
next day.” Id. at 2557. The Supreme Court found that
Holland’s actions satisfied the diligence requirement
for equitable tolling, emphasizing that “reasonable dili-
gence” rather than “maximum feasible diligence” was the
standard. Id. at 2565. Though the Court cautioned that
“more proceedings may be necessary” to explore the
extraordinary circumstance prong of the investigation,
id., the Court noted that the alleged actions of Holland’s
attorney constituted a “serious instance[ ] of attorney
misconduct,” id. at 2564.
Here, although Taylor protests that he diligently
pursued his rights in federal court in the face of extra-
ordinary circumstances, we are left without significant
evidence to support that assertion. And recall, the
burden of proving the assertion is Taylor’s to carry. See
Pace, 544 U.S. at 418; Ray, 700 F.3d at 1007. The record
Taylor presents is a wan facsimile of Holland and all
too similar to other unsuccessful petitions. Like Holland,
Taylor had repeated trouble communicating with
his attorneys and can present documentation that illus-
trates the futility of his attempts.
There, the parallels cease. We know, for instance, that
Holland made an effort to become familiar with AEDPA’s
12 No. 11-2855
timeliness requirements—his letters to his attorneys
reflect this, as does the fact that he immediately filed a pro se
habeas petition when he learned that his state court
appeal had been rejected. In contrast, we know that
Taylor did not make a similar effort. Taylor’s pro se
petition was filed seven months after ACDG declined
further representation and three months after the latest
possible expiration of Taylor’s filing window. Moreover,
the petition reflects Taylor’s continued, mistaken belief
that his filing was due August 26, 2010. That window of
time—between January and May 2010—during which
Taylor could have filed a petition that would arguably
have been timely, ultimately dooms his equitable tolling
argument.
Taylor either misunderstood his attorney’s advice, or
his attorney gave him bad advice. Under either scenario,
however, Taylor did not confirm the date his habeas
petition was due in federal court, despite having
several months to do so. That lack of action does not
show reasonable diligence, and it does not show that
extraordinary circumstances actually prevented Taylor
from filing. “It may be negligent to wait until what is by
a lawyer’s own calculation the last possible day,
because such a calculation could be wrong. But this kind
of negligence is not ‘extraordinary’ by any means. Such
a blunder does not extend the time for filing a
collateral attack.” Griffith v. Rednour, 614 F.3d 328, 331
(7th Cir. 2010). Whittling this case to its essential compo-
nents, Taylor had the opportunity to file a petition in
an arguably timely manner, but he simply misunder-
stood the law.
No. 11-2855 13
Lack of familiarity with the law, however, is not a
circumstance that justifies equitable tolling. Tucker v.
Kingston, 538 F.3d 732, 735 (7th Cir. 2008). When an
inmate, despite roadblocks thrown in his way, has rea-
sonable time remaining to file a habeas petition in a
timely manner, the circumstances cannot, as a defini-
tional matter, be said to have prevented timely filing, as
the standard requires. See Hizbullahankhamon v. Walker,
255 F.3d 65, 75-76 (2d Cir. 2001) (Sotomayor, J.) (denial
of access to prison law library early in the one-year
period did not prevent timely filing). Even after the
alleged extraordinary circumstance (ACDG’s delay)
ended, Taylor had several months during which to file
an arguably timely habeas corpus petition, but he miscal-
culated the due date and so did not. “Attorney miscalcula-
tion [of a deadline] is simply not sufficient to warrant
equitable tolling,” Lawrence, 549 U.S. at 336; neither is peti-
tioner miscalculation. We agree with the district court
that Taylor was not entitled to equitable tolling and
that his petition was therefore untimely.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s denial of the petition for a writ of habeas corpus.
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