Kafer v. Smith

Filing 16

ORDER signed by Judge J.P. Stadtmueller on 4/7/2017: GRANTING 11 Respondent's Motion to Dismiss; DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; and DISMISSING action with prejudice. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS F. KAFER,
Petitioner,

Case No. 16-CV-353-JPS

v.
JUDY P. SMITH,

ORDER

Respondent.

The petition in this matter was filed on March 23, 2016 and assigned
to District Judge Charles N. Clevert, Jr. (Docket #1). Judge Clevert screened
the case and ordered Respondent to address the petition no later than
January 20, 2017. (Docket #6). On February 7, 2017, with no response having
been filed, Judge Clevert ordered Respondent to show cause why her failure
to respond should not be sanctioned. (Docket #7). Respondent submitted her
response to the show cause order, and a motion to dismiss the Petition, on
February 28, 2017. (Docket #10 and #11). Judge Clevert accepted
Respondent’s excuse for missing the response deadline, namely clerical error,
discharged the show cause order, and accepted the motion to dismiss. See
Docket Text Order of March 17, 2017. Petitioner opposed the motion on
March 27, 2017, and Respondent replied on April 5, 2017. This matter was
reassigned to this branch of the Court on March 29, 2017. Respondent’s
motion is fully briefed and, for the reasons stated below, it will be granted.
Respondent

offers

a

single

basis

for

dismissing

the

petition—timeliness. A state prisoner in custody pursuant to a state court
judgment has one year from the date “the judgment became final” to seek
federal habeas relief. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final

when all direct appeals in the state courts are concluded, followed by either
the completion or denial of certiorari proceedings in the U.S. Supreme Court,
or, if certiorari is not sought, at the expiration of the 90 days allowed for
filing for certiorari. See Ray v. Clements, 700 F.3d 993, 1003 (2012) (citing
Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002)). Petitioner exhausted his
appeals in Wisconsin state courts on June 12, 2013. (Docket #13 at 3). Because
there is no indication that he sought U.S. Supreme Court certiorari,
Petitioner’s conviction became final on September 10, 2013. He was required,
then, to file his habeas corpus petition no later than September 10, 2014. The
instant petition was filed more than a year-and-a-half late.
Petitioner offers three arguments to circumvent his tardiness. First, he
contends that the statute of limitations should be equitably tolled to render
his petition timely. The Seventh Circuit has explained that:
[t]here are two principal tolling doctrines. One is equitable
estoppel, which comes into play if the defendant takes active
steps to prevent the plaintiff from suing in time, as by
promising not to plead the statute of limitations as a defense.
. . . . The other doctrine is equitable tolling. It permits a plaintiff
to avoid the bar of the statute of limitations if despite all due
diligence he is unable to obtain vital information bearing on the
existence of his claim.
Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013) (citations and
quotations omitted) (emphasis in original). Petitioner may exclude time from
the statute of limitations calculus, and thereby achieve timely filing, if he
shows that during the subject time, he “(1) pursue[d] his rights diligently, and
(2) ‘some extraordinary circumstance stood in his way and prevented timely
filing.’” Gladney v. Pollard, 799 F.3d 889, 894–95 (7th Cir. 2015) (quoting
Holland v. Florida, 560 U.S. 631, 649 (2010)). Petitioner bears the burden of
proof on both points. Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014). The

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Seventh Circuit notes that “tolling is rare; it is ‘reserved for extraordinary
circumstances far beyond the litigant’s control that prevented timely filing.’”
Id. at 684.
Petitioner’s argument on both points is founded on the same
circumstance. In August 2013, two months after his state court appeals
concluded, Petitioner was targeted for another criminal investigation by the
state. (Docket #3-1 at 2). Petitioner retained his current counsel in October
2013. Id. His counsel avers:
Petitioner and I anticipated that new charges would be
forthcoming. We were extremely concerned that the filing of
the new charges would interfere with a fair consideration of the
petition for habeas corpus and conversely, that a pending
habeas petition would impair petitioner’s ability to negotiate
a settlement of the new matter.
Id. Petitioner’s counsel nevertheless had the petition prepared five months
later, in February 2014. Id. The charges Petitioner feared were not actually
filed until December 11, 2014. Id. His counsel states that “the majority of 2015
was devoted to negotiating and resolving the second charge.” Id.
This explanation demonstrates that equitable tolling does not lie here.
Even assuming Petitioner diligently pursued his rights, he cannot show that
“some extraordinary circumstance stood in his way and prevented timely
filing.” Gladney, 799 F.3d at 895 (emphasis added).1 Petitioner stresses that he
“did not merely decide not to file the petition. Rather, [he] was hamstrung by

1

This is not to say that Petitioner actually exercised reasonable diligence.
See Holland, 560 U.S. at 653. He must demonstrate that he was diligent throughout
all of the time between September 2014 and March 2016, and it appears that a
number of discrete periods within that time are either unaccounted for or
excessively long. Because Petitioner fails to establish an “extraordinary
circumstance,” however, the Court need not definitively resolve the issue.

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the State’s decision to file another charge against him[.]” (Docket #13 at 3).
Similarly, Petitioner contends that he “could not reasonably go forward with
the habeas petition because he could not do so without forfeiting the likely
plea agreement on the new charge.” Id.
Petitioner is incorrect. By at least February 2014, seven months before
the statute of limitations would run, Petitioner was equipped to file his
petition. He did not file it because he made a strategic choice, namely that a
habeas filing might negatively impact his plea negotiations on the new
charge. Petitioner’s strategy appears to have been of some benefit to him, as
he ultimately resolved the new charge. He cannot obtain the benefit of his
choice in one instance, and then complain that the choice harmed him in
another. Further, petitioner has not cited any case with something close to
analogous facts or even arriving at the result he desires. Pace v. DiGuglielmo,
544 U.S. 408, 424 (2005) (dissent mentions government interference which
may underlay a substantive habeas claim, not any statute of limitations
concern); Johnson v. McBride, 381 F.3d 587, 589-90 (7th Cir. 2004) (a petitioner
cannot raise equitable tolling when his lawyer missed the filing deadline);
Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (no evidence that the
respondent “lulled Kreutzer into inaction,” when the state in fact highlighted
the running statute of limitations in prior filings). Without such precedent, the
Court views this matter as Respondent does:
The new charge is not extraordinary, but even if it were,
it did not prevent Kafer from filing. Instead, the new charge, at
worst, influenced Kafer’s decision to wait to file his petition.
Nothing “stood in his way” of submitting his petition to this
Court.
(Docket #15). The Court declines to exercise its equitable powers to toll the
statute of limitations in this instance.
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Petitioner’s second argument is the equitable estoppel doctrine. As
quoted above, the doctrine “comes into play if the defendant takes active
steps to prevent the plaintiff from suing in time, as by promising not to plead
the statute of limitations as a defense.” Clarke, 703 F.3d at 1101. (quotation
omitted). As before, even assuming Respondent took some action that
Petitioner could have reasonably relied on, he fails to explain how he was
prevented from filing his petition by any such action. While the state certainly
took their time to charge him, it was his conscious choice to delay filing his
petition in what he believed was in his best interest. Again, Petitioner
appears to have gained some benefit from that decision, and the Court will
not hear him complain that the current circumstances are inequitable because
he might regret his choice.
Petitioner’s last hope to avoid dismissal is an assertion of waiver. He
believes that Respondent waived her right to argue that the petition was
untimely filed because her own motion was filed late. The Court disagrees.
Respondent informed Judge Clevert that her lateness was due to an
administrative mix-up. (Docket #10). He accepted that excuse and accepted
the filing of her motion to dismiss. See Docket Text Order of March 17, 2017.
This Court will not second-guess Judge Clevert’s decision. Respondent has
thus waived nothing with respect to the timing of her motion.
In sum, Petitioner left the statute of limitations well behind him before
filing the instant petition. This necessitates dismissal, and his meritless claims
for equitable relief do not forestall that fate. Congress applied a one-year
statute of limitations to habeas corpus actions to bring finality to criminal
judgments, and the Court will not lightly cast Congress’ will aside. Rivera v.
Pollard, 504 F. App’x 502, 505 (7th Cir. 2013).

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Accordingly,
IT IS ORDERED that Respondent’s motion to dismiss (Docket #11)
be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Petitioner’s petition for a writ of
habeas corpus (Docket #1) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 7th day of April, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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