Darryl Simms v. Gerardo Acevedo

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2999
D ARRYL S IMMS,
Petitioner-Appellant,
v.
G ERARDO A CEVEDO ,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 28—Robert W. Gettleman, Judge.
A RGUED A PRIL 13, 2009—D ECIDED F EBRUARY 19, 2010
Before C UDAHY, P OSNER, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Before us is Darryl Simms’s
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Like so many habeas cases, this one turns not
on principles of constitutional or criminal law, but on
state procedural requirements. At issue are two peti-
tions that Simms filed in Illinois state court. If either was
properly filed when Simms contends it was, his
federal petition for habeas corpus is timely and should
2 No. 07-2999
be addressed on the merits. But if not, Simms’s federal
petition is barred by the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1), unless
his circumstances merit equitable tolling of the limita-
tions period.
Simms was convicted in 1985 of murder, aggravated
criminal sexual assault, robbery, home invasion, and
residential burglary. After a bench trial, he was sen-
tenced to death. On appeal, his conviction was affirmed,
but his sentence was vacated and the case was remanded
to the trial court. On remand, he was again sentenced to
death, this time by a jury. He appealed again and the
case was remanded again because of a bad jury instruc-
tion. On remand, he was again sentenced to death by a
jury. He appealed, the death sentence was affirmed, and
certiorari was denied.
In 1995, while his appeals were pending, Simms filed a
pro se petition for post-conviction relief in Illinois circuit
court. In May 1997, he amended his petition, this time
with the help of counsel. In August 1998, the peti-
tion was dismissed. Simms appealed to the Illinois Su-
preme Court and the court remanded the case, in
August 2000, to the circuit court with instructions to
hold an evidentiary hearing on Simms’s Brady v. Maryland
claims. In January 2003, Illinois’s then-governor, George
Ryan, commuted Simms’s death sentence (and those of
all Illinois’s capital offenders) to a term of life imprison-
ment without the possibility of parole. Simms withdrew
his Brady claims on June 22, 2004, before the evidentiary
hearing was held; Simms states that he withdrew his
No. 07-2999 3
petition because he did not want to jeopardize the com-
mutation of his sentence. On July 7, 2004, the trial court
entered an order acknowledging the withdrawal of
Simms’s claims in Illinois state court.
Apparently his fears regarding the commutation of his
sentence were assuaged sometime around June 7, 2005,
because at that point (although the exact date is not
clear for reasons discussed below), Simms attempted to
file a pro se petition for habeas relief in the Randolph
County Circuit Court. Attached to the petition was an
application to proceed in forma pauperis. Around three
weeks later (once again, the time is indeterminate
because the petition was never file stamped by the clerk),
in a letter dated June 30, 2005, the Randolph County
Circuit Court clerk returned Simms’s petition because
he had not submitted a filing fee or the necessary copy
of his trust account balance to support his in forma
pauperis application.
On July 1, 2005, the same day Simms received his
rejected application, he resubmitted the pro se com-
plaint for habeas relief. The court accepted the filing of
the petition on this date. But, the trial court later
dismissed the complaint on the merits; the dismissal was
affirmed by the Illinois Appellate Court, Simms v. Uchtman,
No. 5-05-0561 (Ill. App. Ct. June 5, 2006) (unpublished
order), and the Illinois Supreme Court denied leave
to appeal on November 29, 2006. Simms immediately
filed a petition for rehearing but it was rejected by the
clerk of the Illinois Supreme Court on December 29, 2006.
By this point, Simms had already filed his federal
habeas petition. He did so on December 7, 2006.
4 No. 07-2999
The federal petition was dismissed by the district court
on a finding that it was untimely under the one-year
statute of limitations established by AEDPA. 28 U.S.C.
§ 2244(d)(1). The court determined that Simms’s one-
year clock started on July 7, 2004, which was the day
the Illinois trial court issued an order acknowledging
that Simms had withdrawn his post-conviction claims.
The district court did not stop the clock until July 1, 2005,
which the court found was the date Simms properly
filed his complaint for state habeas relief. This was 358
days after the clock started—so at this point he had
seven days left. The district court tolled the clock until
November 29, 2006, which is when the Illinois Supreme
Court denied Simms’s petition for leave to appeal. The
district court refused to toll Simms’s limitations period
for the petition for rehearing that Simms filed immedi-
ately after his petition for leave to appeal was denied by
the Illinois Supreme Court.
Thus, on November 30, according to the district court,
the clock started again and Simms filed his habeas appeal
on December 7, 2006—eight days later. The district court
therefore found that Simms had missed the dead-
line by one day. The court then considered whether
the statute should be equitably tolled and found that
it should not because Simms had not pursued his
rights diligently. The court thus dismissed the petition
as untimely and did not reach the merits. Simms appeals.
We review the decision to dismiss a habeas corpus
petition as untimely de novo. Moore v. Knight, 368 F.3d 936,
938 (7th Cir. 2004). Simms claims that the AEDPA limita-
No. 07-2999 5
tions period should have been tolled during two periods—
when his state habeas petition was sent to the Illinois
circuit court clerk on June 7, 2005, and when his petition
for rehearing was sent to the Illinois Supreme Court clerk
on November 29, 2006. Both of these petitions, he argues,
were properly filed; thus, under the terms of AEDPA,
his federal petition is timely. See 28 U.S.C. § 2244(d)(2)
(tolling the statute of limitations when “a properly filed
application for State post-conviction or other collateral
review . . . is pending”). In the alternative, Simms
argues that the district court abused its discretion in not
applying the doctrine of equitable tolling to his petition.
I. Was the June 7, 2005 Petition Properly Filed?
Simms contends that he mailed his state habeas petition
on June 7, 2005, and it should be deemed filed on that date
under Illinois’s mailbox rule. See People v. Saunders, 633
N.E.2d 1340, 1341-42 (Ill. App. Ct. 1994). Simms argues
that despite his failure to attach a copy of his trust fund
ledger, the circuit court was required to accept his
petition under Illinois law, and therefore it was properly
filed. The rejection of the application, he argues, was
in error.
Under Illinois law, the court clerk was required to
“accept and file any complaint, appearance, or other
paper presented by the applicant if accompanied by an
application to sue or defend in forma pauperis, and
those papers shall be considered filed on the date the
application is presented.” 735 Ill. Comp. Stat. 5/5-105(e).
The “application” to sue is required to “be in writing and
6 No. 07-2999
supported by the affidavit of the applicant.” Id. 5/5-105(c).
The court clerk relied on Administrative Order 90-7 of
the Circuit Court of Randolph County, which requires
inmates seeking to proceed in forma pauperis to submit
a copy of their trust fund ledger as part of their affidavit.
Because Simms did not include the trust fund ledger,
the clerk rejected the application.
The Supreme Court has held that failure to comply
with certain state law requirements does indeed render a
petition improperly filed. Pace v. DiGuglielmo, 544 U.S. 408,
413 (2005) (holding that untimely state postconviction
motions are not considered “properly filed” for purposes
of AEDPA). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000)
(holding that petitions for state relief that contain
claims that are procedurally barred may still be properly
filed). In Pace, the Supreme Court noted specifically that
the formal requirements for most petitions are not en-
trusted to the clerk’s discretion, but must be later deter-
mined by the judge. Pace, 544 U.S. at 415 & n.5. The peti-
tioner’s argument in that case was that only petitions
rejected by the clerk could be declared improperly
filed under AEDPA.
Simms’s argument is somewhat the inverse of the
losing one in Pace. The clerk, he says, was required to
file his petition whether or not it met the required
form and therefore the petition should be considered
filed when submitted to the clerk. To the extent that
Simms argues that the period between the time the
clerk received the petition and rejected it as improperly
filed should be tolled, we can reject that out of hand. In
No. 07-2999 7
Pace, the Supreme Court foreclosed such a contention. See
Pace, 544 U.S. at 414 (rejecting the notion that the
“proper filing” of a petition is determined based on its
acceptance by a clerk).
Simms, then, must be contending that the clerk erred
by misinterpreting state law, which he says commanded
the clerk to accept the petition, and that the petition was
therefore properly filed as mailed on June 7. Notably,
Simms does not offer evidence that he complied with
the local rule on in forma pauperis petitions, and that the
clerk overlooked his compliance. Instead, he argues
that the clerk was required to accept the petition despite
the deficiency and cites to Illinois law for the uncontro-
versial proposition that a local rule cannot trump state
law. Vision Point of Sale, Inc. v. Haas, 875 N.E.2d 1065, 1080
(Ill. 2007) (Circuit courts in Illinois are vested with the
power “to adopt local rules governing civil and criminal
cases so long as . . . they do not conflict with supreme
court rules or statutes . . . .”).
On behalf of the warden, Illinois argues that we must
defer to the clerk’s interpretation of the Illinois statute
and its relationship with the circuit court’s filing require-
ments. But the clerk’s determination of whether or not
the petition was improperly filed is immaterial; had the
clerk accepted the petition, any infirmity of the type
described in Pace would have rendered it improperly
filed. In fact, the case Illinois relies on, Artuz, 531 U.S. at 8,
makes clear that petitions are properly filed when their
“delivery and acceptance are in compliance with the
applicable laws and rules governing filings.” Furthermore,
8 No. 07-2999
a filing that is “erroneously accepted by the clerk” is “not
properly filed.” Id. at 9. Therefore, the clerk’s view of the
petition is not dispositive. Illinois asks us to compare
this case to Powell v. Davis, 415 F.3d 722, 726-27 (7th Cir.
2005), but Powell involved our deference to a state
supreme court’s determination of whether a petition
was properly filed, not deference to the court’s admin-
istrative personnel. A clerk is not the expositor of
Illinois’s rules, but the administrator of those rules.
Illinois also argues that there is no proof in the record
that the petition was mailed on June 7, just proof that
Simms signed and had the petition notarized on that date.
This argument can also be disregarded. If we accept the
district court’s conclusion that the petition was only one
day late, then any petition properly filed before July 1
would allow Simms to avoid the AEDPA time bar.
Additionally, Illinois claims that Simms was actually
28 days late in filing his federal petition because it
was not mailed from the jail but from a different zip
code. Since the petition was not sent from jail, it was not
entitled to the mailbox rule established by Rule 3(d) of the
Rules Governing Section 2254 Cases in the United States
District Courts, which provides for filing via the institu-
tion’s internal mailing system on or before the last day
for filing. Since, Illinois argues, the petition was filed
from outside the prison, it therefore must be considered
filed on January 3, 2007 when it was received by the
district court. See United States v. Craig, 368 F.3d 738, 740-
41 (7th Cir. 2004).
Illinois did not raise this issue below and therefore it is
forfeited. AEDPA’s statute of limitations is not a juris-
No. 07-2999 9
dictional bar to the court’s power, see Day v. McDonough,
547 U.S. 198, 205 (2006), although a district court could
raise the issue sua sponte if it caught a calculation error. Id.
at 210. Here, however, the argument relies on actual
physical evidence (the postmarked letter) not in the
record presented to the district court; we have no ability
to gauge the argument’s merits.
So there is but one question—whether Illinois law
considered Simms’s petition properly filed, even if the
clerk didn’t. We note that Simms’s argument that the
clerk was required to accept the petition is unavailing;
an improperly filed petition does not toll the statute
even if it is in the state court’s hands—that is what Pace
teaches us. And this is the real problem for Simms—even
if the clerk did accept the petition on June 7, it was im-
properly filed for purposes of AEDPA if it did not
comply with “the applicable laws and rules governing
filings.” Artuz, 531 U.S. at 8.
Despite Simms’s protests, the Illinois statute on which
Simms relies does not conflict with the Randolph County
court’s filing requirements. Simms argues that relevant
Illinois law, 735 ILCS 5/5-105(e), would only require the
clerk to hang onto the petition, file it, and “[a]t most . . .
require the clerk to contact the inmate and seek the re-
quired information.” Pet. Br. at 21. But, regardless of
whether the statute commands the clerk in a situation
like Simms’s to file the petition and then ask for the
required trust fund information, or whether the statute
allows the clerk to return the petition without filing it
and then file it when the proper trust fund information
10 No. 07-2999
is included, Simms’s petition was not properly filed,
for purposes of AEDPA, until it complied with “the
applicable laws and rules governing filings.” In either
scenario, therefore, the petition was not properly filed
until the trust fund information was included.
Furthermore, the statute that Simms relies on is easily
harmonized with the Randolph County Circuit Court
rules. The statute requires the clerk to “accept and file
any complaint, appearance, or other paper presented by
the applicant if accompanied by an application to sue
or defend in forma pauperis, and those papers shall be
considered filed on the date the application is pre-
sented.” 735 ILCS 5/5-105(e). The statute requires that the
application to sue “be in writing and supported by the
affidavit of the applicant.” Id. 5/5-105(c). The “contents
of the affidavit shall be established by Supreme Court
Rule.” Id.
Randolph County Circuit Court requires that in all
civil cases brought by poor persons (that is, indigents
seeking to prosecute an action without paying filing
fees), “the petition for leave to sue or defend as a poor
person shall be accompanied by a copy of the inmate’s
trust fund ledger indicating all deposits and with-
drawals made to the inmate’s trust fund account for the
six months immediately preceding the submission of
the petition.” Randolph County Cir. Ct. Admin. Order
No. 90-7. Given that Illinois law specifically delegates
the authority to establish “the contents” of the in forma
pauperis affidavit to the state supreme court and that the
state supreme court in turn delegates rule-making author-
No. 07-2999 11
ity to the circuit courts, and that Simms doesn’t chal-
lenge that this rule was validly enacted (at least as a
procedural matter), we find it well within the Randolph
County Circuit Court’s purview under Illinois law to
require that all petitions include a copy of the trust fund
ledger. Given that the local rule the clerk relied on to
reject the petition did not conflict with state law and that
the petition was indisputably deficient (in that it did not
meet the in forma pauperis requirements), it was not
properly filed until July 1, 2005. Accordingly, the AEDPA
limitations period was not tolled between June 7 and
that date.
II. Was the Petition for Rehearing Properly Filed?
Simms also seeks to toll the AEDPA limitations period
for the period during which his petition for rehearing was
pending at the Illinois Supreme Court. Of course, his
petition was never really pending; it was returned three
weeks later by the clerk’s office, which informed Simms
that it was “unable to file” the petition. Remember that
Simms needs only one day of tolling to save his case; if
we toll the period for the three weeks the clerk had the
petition, his federal habeas corpus claim is timely.
Remember also that we explained above that the clerk’s
acceptance of a petition is not sufficient to render the
petition properly filed. To prevail, Simms must succeed
where he failed regarding his initial Illinois habeas
petition discussed above; he must show that the clerk of
the Illinois Supreme Court erred when she returned
his petition. Both parties assume that the clerk was
12 No. 07-2999
unable to file the petition because it was mislabeled a
“petition for rehearing.” (The clerk’s actual letter to
Simms is more ambiguous, but since neither party
teased out an alternative ground for rejection of the
petition from the letter, neither will we).
Simms argues that the clerk misinterpreted Illinois law
which, Simms claims, allows for petitions for rehearing
after the denial of a petition for leave to appeal. Simms
argues that the denial of the petition for leave to appeal
(PLA) is a judgment and as such, is a proper subject for a
petition for rehearing. See Illinois Supreme Court Rule
367(a) (“A petition for rehearing may be filed within 21
days after the filing of the judgment . . . .”). The respondent
disagrees.
In a case like Simms’s where there is no appeal as of
right to the Illinois Supreme Court, leave to appeal to
that court is entrusted to the “sound judicial discretion” of
the court. Illinois Supreme Court Rule 315(a). Because
of this discretion, the Illinois Supreme Court has refused
to invoke res judicata based on its previous denial of a
PLA at an earlier stage in the proceeding. “For res judicata
to apply, there must have been a final judgment on the
merits of the case. Denials of petitions for leave to
appeal are not decisions on the merits.” In re Leona W.,
888 N.E.2d 72, 81 (Ill. 2008); see also People v. Ortiz, 752
N.E.2d 410, 424 (Ill. 2001) (“It is well settled that our
denials of leave to appeal are not decisions on the merits
of the case. They carry no connotation of approval or
disapproval of the appellate court action, and signify only
that four members of this court, for reasons satisfactory
No. 07-2999 13
to them, have not voted to grant leave.” (quotation omit-
ted)).
Illinois law is, therefore, clear that the denial of the PLA
is not a final judgment. And, accordingly, a petition for
rehearing is not a proper vehicle to challenge the denial
of a PLA. The fact that, as Simms points out, we have
mistakenly assumed, in dicta, that a petition for
rehearing is the proper vehicle to challenge the denial of
a PLA, see Jones v. Hulick, 449 F.3d 784, 789 (7th Cir.
2006); Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002),
does not alter our responsibility to interpret the law of
Illinois as the Illinois courts have.
As the clerk noted when it rejected Simms’s petition for
rehearing, a motion for reconsideration is available to a
petitioner whose PLA was denied. See, e.g., People v.
Thivel, 916 N.E.2d 545 (Ill. 2009). Simms filed no such
petition here, and we have repeatedly held that in
Illinois, the time period during which a petition for re-
consideration can be filed after the denial of a petition for
leave to appeal is not tolled for purposes of AEDPA. See
Jones, 449 F.3d at 789; Wilson, 302 F.3d at 747-48. At
least one Illinois court of appeals has also made the
same error of nomenclature that we made in Jones and
Wilson, see Butts v. City of Peoria, 504 N.E.2d 544, 545 (Ill.
App. Ct. 1987), but Simms does not argue that Illinois
courts ordinarily treat the two separate motions
identically and that he was prejudiced by the clerk’s
decision to choose not to in his case. Instead, he rests his
claim on the fact that the denial of a PLA is a judgment. As
noted above, it is not, and the Illinois statute is clear—
14 No. 07-2999
rehearing is only available when there has been a judg-
ment. Therefore, a petition for rehearing was an
improper filing after the denial of Simms’s leave to
appeal. Accordingly, AEDPA’s limitations period was
not tolled by the filing.
III. Should the Limitations Period have been Equitably
Tolled?
“Equitable tolling is rarely granted.” Tucker v. Kingston,
538 F.3d 732, 734 (7th Cir. 2008). “Equitable tolling is
granted sparingly only when extraordinary circum-
stances far beyond the litigant’s control prevented timely
filing.” Wilson, 302 F.3d at 749 (internal quotations and
alterations omitted); see also Tucker, 538 F.3d at 734 (noting
the paucity of cases where we found it warranted). We
review the decision to deny equitable tolling for an
abuse of discretion. Tucker, 538 F.3d at 735.
In deciding that the AEDPA limitations period should
be equitably tolled, the district court must determine
that the petitioner has pursued his rights diligently and
extraordinary circumstances beyond his control stood
in the way of the timely filing of his petition. Pace, 544
U.S. at 418. The district court found that Simms failed to
act diligently in pursuing his federal rights, because he
waited nearly a year from the withdrawal of his
previous state court petition to begin his final attempts
at state court review.
The district court’s reasoning is sound. Simms’s last
two cracks at habeas relief in Illinois were fraught with
No. 07-2999 15
difficulties—the misfiled in forma pauperis petition cost
him three weeks and the misfiled petition for rehearing
cost him another three. But, given that he waited almost
a year to file the claim, his later errors were magnified
by his initial delay. See Pace, 544 U.S. at 419 (“Had peti-
tioner advanced his claims within a reasonable time of
their availability, he would not now be facing any time
problem. . . .”). Despite the fact that Simms missed the
deadline by one day, there was no extraordinary
reason requiring the grant of equitable tolling. See United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)
(declining to apply equitable tolling when petitioner
missed a deadline by one day due to the death of the
attorney’s father several weeks before the deadline).
IV. Conclusion
Accordingly, we A FFIRM the decision of the district court.
C UDAHY, Circuit Judge, concurring. I concur in the
judgment.
2-19-10