Meade v. Chiarello et al

Filing 20

ORDER signed by Judge J P Stadtmueller on 3/31/16: denying 1 Petitioner's Petition for Writ of Habeas Corpus; denying 14 Petitioner's "Petition for Writ"; DISMISSING this action with prejudice; and denying a certificate of appealability. See Order. (cc: Petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EDWARD ALEX MEADE,
Petitioner,
v.

Case No. 15-CV-1396-JPS

J. CHIARELLO, EDWARD WALL,
and BRAD D. SCHIMEL,

ORDER
Respondents.
On November 23, 2015, Edward Alex Meade filed a petition for a writ
of habeas corpus. (Docket #1). The Court screened that petition and noticed
that it might be untimely. (See Docket #8 at 3). Accordingly, the Court
requested that the respondents (hereinafter “the State”) address the issue of
timeliness (and any other potentially-dispositive issue), after which Mr.
Meade would have the opportunity to file a response and the State could file
a reply. (Docket #8 at 3–4). That matter is fully briefed (Docket #13, #18, #19),
and the Court now turns to decide it.
It begins by providing the timeliness standards applicable to habeas
petitions filed pursuant to 28 U.S.C. § 2254, such as Mr. Meade’s. A one-year
limitations period applies. See 28 U.S.C. § 2244(d)(1). That limitations period,
however, is subject to a number of special rules, such that it is often difficult
to pinpoint the date on which the period has expired.
The first rule relates to the date on which the limitations period begins
to run; 28 U.S.C. § 2244(d)(1) provides that the limitations period runs from
the latest of:
(1)

the date that the judgment became final following the
conclusion of direct review or the expiration of the time period
for seeking direct review;

(2)

the date on which a State-created impediment is removed;

(3)

the date on which the Supreme Court recognized a new
constitutional right; or

(4)

the date on which the factual predicate for a claim could have
been discovered.

See, e.g., 28 U.S.C. §§ 2244(d)(1)(A–D). Once the Court has determined the
date on which the conviction became final, it must next determine how much
of the limitations period has run, following that date. In determining how
much of the limitations period has run, the Court must generally consider a
second, third, and fourth rule, all of which are distinct but related.
The second rule is statutory tolling, pursuant to 28 U.S.C. § 2244(d)(2),
which provides that “[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 shall not be counted” toward the limitation
period.
And, if statutory tolling does not apply, then the third rule—equitable
tolling, see, e.g., Holland v. Florida, 560 U.S. 631 (2010)—might fill in to exclude
some of the period between the petitioner’s conviction becoming final and his
filing a habeas petition. Equitable tolling, however, is reserved for
extraordinary circumstances, and applies only when a petitioner has
“(1) pursued his rights diligently, and (2) ‘some extraordinary obstacle stood
in his way and prevented timely filing.’” Gladney v. Pollard, 799 F.3d 889, 894
(7th Cir. 2015) (citing Holland, 560 U.S. at 649).
Finally, if equitable tolling does not apply, then the fourth rule—the
actual innocence gateway, see McQuiggin v. Perkins, 569 U.S. ----, 133 S.Ct.
1924, 1931 (2013)—might apply to render the limitations period inapplicable.
See Gladney, 799 F.3d at 894 (citing McQuiggin, 133 S.Ct. at 1931; Schlup v.

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Delo, 513 U.S. 298 (1995)). The actual innocence gateway is also very narrow,
but allows a petitioner to assert an untimely claim when “‘in light of new
evidence, it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.’” Gladney, 799 F.3d at 896
(quoting House v. Bell, 547 U.S. 518, 537 (2006); Schlup, 513 U.S. at 327;
McQuiggin, 133 S.Ct. at 1935).
Having considered all of these rules, the Court is left to conclude that
Mr. Meade’s habeas petition is untimely.
First, he filed it much more than one year after his conviction became
final, even after the Court has factored in statutory tolling. Mr. Meade’s
conviction became final on April 23, 2012, which was 90 days after the
Wisconsin Supreme Court denied his petition for review in his direct appeal,
at the expiration of the time for requesting certiorari before the United States
Supreme Court. (Docket #13, Exs. A–C); Gladney, 799 F.3d at 794 (citing
Morales v. Boatwright, 580 F.3d 653, 657 (7th Cir. 2009)). It was tolled almost
immediately thereafter when Mr. Meade filed a post-conviction
Knight petition, on April 26, 2012. (Docket #15, Ex. D). The Wisconsin Court
of Appeals denied Mr. Meade’s Knight petition on November 12, 2012, and
Mr. Meade did not appeal, meaning that the limitations period started to run
on that day or shortly thereafter. See, e.g., Evans v. Chavis, 546 U.S. 189, 191
(2006) (citing Carey v. Saffold, 536 U.S. 214 (2002)) (both holding that state
post-conviction proceedings are “pending” during the period between a
lower-court’s adverse determination and a timely notice of appeal therefrom;
at latest, because he did not appeal to the Wisconsin Supreme Court, the
limitations period would have begun to run at the expiration of the 30 days
in which he could have sought review before the Wisconsin Supreme Court,
Wis. Stat. § 808.10). Mr. Meade filed another post-conviction motion on
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April 15, 2013, which arguably statutorily tolled the limitations period, while
it was pending before the state courts, through November 17, 2014, the date
on which the Wisconsin Supreme Court denied review to hear an appeal of
the case.1 (See Docket #13, Ex. B); 28 U.S.C. § 2244(d)(2). Mr. Meade then
waited until November 17, 2015, to file his federal habeas petition. (Docket
#1). Thus, at bare minimum, far more than one year expired (the
approximately 120 days following the denial of Mr. Meade’s Knight petition
and the year between November 17, 2014, and November 17, 2015).
Accordingly, Mr. Meade’s petition is not timely unless equitable
tolling or the actual innocence gateway applies; neither does.
Mr. Meade is not entitled to equitable tolling in light of the
circumstances in this case. Mr. Meade argues that he is entitled to equitable
tolling because, after the Wisconsin Court of Appeals denied his initial
Knight petition, he had to perform additional research to file his next postconviction motion, which took him until April 15, 2013. (Docket #18 at 2).
There are two problems with this argument.
First, there was no “extraordinary obstacle” that stood in Mr. Meade’s
way. See Gladney, 799 F.3d at 894. Equitable “tolling is rare; it is ‘reserved for
extraordinary circumstances far beyond the litigant’s control that prevented
timely filing.’” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014) (quoting
Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004)) (emphasis added).
This requires some “discrete, identifiable impediment to the prisoner’s ability
(rather than his motivation)…to comply with the state’s procedural

1

The Court says that this “arguably” tolled the limitations period, because
the second motion raised claims that had already been rejected, and thus likely was
not “properly filed.” Because the result is the same either way, the Court will
construe the tolling in Mr. Meade’s favor.

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rules.”Johnson v. Foster, 786 F.3d 501, 508 (7th Cir. 2015). Here, Mr. Meade did
not face any identifiable impediment to filing; he simply chose one route (a
Knight petition) that the Wisconsin Court of Appeals rejected, and then chose
to try something different. In other words, it was Mr. Meade’s own choices
(at worst, his lack of legal training) that caused this delay. In that way, this
is not like the other cases in which the Seventh Circuit has applied equitable
tolling (or found it possible): for instance, mental incompetence, see Davis v.
Humphries, 747 F.3d 497, 498–99 (7th Cir. 2014); intentional confiscation of
habeas papers by prison officials, see Weddington v. Zatecky, 721 F.3d 456,
464–65 (7th Cir. 2013); or the practical abandonment of counsel and
deprivation of nearly all legal materials, Socha, 763 F.3d at 686. Mr. Meade’s
circumstances, on the other hand—essentially lack of legal knowledge—is
not sufficient to warrant equitable tolling. Socha, 763 F.3d at 685 (citing
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Taylor v. Michael, 724 F.3d 806,
811 (7th Cir. 2013)).
Second, and perhaps more fundamentally, Mr. Meade simply was not
“diligent” in pursuing his rights. The Court will assume, arguendo, that he
was diligent during the months between the Wisconsin Court of Appeals’
rejection of his Knight petition and his filing a later post-conviction motion.
Even so, Mr. Meade has not offered any explanation for the full year that
passed between the Wisconsin Supreme Court’s rejection of his appeal of
that later post-conviction motion and his filing the federal habeas petition
that is now before the Court. Accordingly, because Mr. Meade cannot show
diligence or an extraordinary impediment, the Court is obliged to conclude
that he is not entitled to equitable tolling.
He also is not entitled to the actual innocence gateway. To be sure, he
has not even argued that he is. But, even if he had, he clearly has not
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presented any “evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial,” Schlup, 513 U.S. at 316, such that “it
is more likely than not that no reasonable juror would have found [him]
guilty beyond a reasonable doubt,” House, 547 U.S. at 537. Simply put, there
is no such argument nor any evidence before the Court (not to mention that
the evidence against Mr. Meade was strong (see Docket #13, Ex. 3)), and so
the Court will not allow Mr. Meade’s petition to escape its untimeliness
through the actual innocence gateway.
For all of these reasons, the Court is obliged to deny Mr. Meade’s
petition as untimely.
That leaves Mr. Meade’s recently-filed “Petition for Writ,” which is,
essentially, a second habeas petition, raising a new claim that stems from Mr.
Meade’s participation in Wisconsin’s Sex Offender Treatment program.
(Docket #14). One component of that program is a requirement that Mr.
Meade “admit fully to the crimes and to all of the elements within the
criminal complaint associated to the crime(s),” and failure to do so may result
in re-incarceration. (See Docket #14 at 2). Mr. Meade argues that this
requirement violates his Fifth Amendment right against self-incrimination,
and cites to State ex rel. Tate v. Schwartz, 2002 WI 127, ¶¶ 18, 217 Wis. 2d 40,
654 N.W.2d 438, which held that such was the case when the subject of the
admission requirement has an appeal pending or a motion to modify his or
her sentence. (Docket #14 at 2–3).
Even if this more recent “Petition for Writ” was properly before the
Court as a non-successive petition, the Court still could not review the claim
that it contains, because it has not been exhausted in Wisconsin’s state court
system. See, e.g., 28 U.S.C. § 2254(b). Nor is there any indication of “an
absence of available State corrective process,” 28 U.S.C. § 2254(b)(1)(B).
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Indeed, Mr. Meade should be able to raise his Tate defense in a hearing
before the Wisconsin courts if he is ever revoked. See Tate, 2002 WI 127 ¶¶ 2,
17–22 (taking place in the context of a review of revocation proceedings).
Accordingly, the Court is also obliged to deny Mr. Meade’s “Petition for
Writ.”
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Mr. Meade must make a “substantial showing
of the denial of a constitutional right” by establishing that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (internal citations omitted). Further, when the Court
has denied relief on procedural grounds, the petitioner must show that jurists
of reason would find it debatable both that the “petition states valid claim of
the denial of a constitutional right” and that “the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). While Rule
11(a) permits a district court to direct the parties to submit arguments on
whether a certificate of appealability should be issued, additional arguments
are not necessary here. As the Court discussed extensively above, reasonable
jurists would not debate whether the petition should have been resolved in
a different manner. Reasonable jurists would not disagree about the Court’s
procedural rulings that Mr. Meade’s initial petition is untimely and his later
“Petition for Writ” contains an unexhausted claim. As a consequence, the
Court must deny a certificate of appealability as to Mr. Meade’s petition.

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Finally, the Court closes with some information about the actions that
Mr. Meade may take if he wishes to challenge the Court’s resolution of this
case. This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30 days of the entry
of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline if
a party timely requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline. See Fed. R. App. P.
4(a)(5)(A). It should also be noted that because this court denied a
certification of appealability, Mr. Meade must seek one from the Seventh
Circuit. Fed. R. App. P. 22(b). Under certain circumstances, a party may ask
this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil
Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e)
must be filed within 28 days of the entry of judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the judgment. The court
cannot extend this deadline. See Federal Rule of Civil Procedure 6(b)(2).
A party is expected to closely review all applicable rules and determine what,
if any, further action is appropriate in a case.
Accordingly,
IT IS ORDERED that, the Court having determined that Mr. Meade’s
petition for a writ of habeas corpus (Docket #1) is untimely, that petition (id.)
be and the same is hereby DENIED;

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IT IS FURTHER ORDERED that, as a result of the failure to exhaust,
28 U.S.C. § 2254(b), Mr. Meade’s “Petition for Writ” (Docket #14) be and the
same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of March, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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