Price v. Richardson

Filing 13

ORDER signed by Judge J.P. Stadtmueller on 12/18/2017: DENYING 1 Petitioner's Petition for a Writ of Habeas Corpus; DENYING a certificate of appealability; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Mark H. Price at Stanley Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK H. PRICE,

v.

Petitioner,

Case No. 17-CV-1226-JPS-JPS

REED RICHARDSON,
Respondent.

ORDER

The Court screened Petitioner Mark H. Price’s (“Price”) petition on
October 2, 2017. (Docket #7). The Court noted that it appeared almost
certain that Price’s petition was filed beyond the applicable statute of
limitations. Id. at 2. It therefore ordered immediate briefing on the issue. Id.
at 4. That briefing is now complete. (Respondent’s Opening Brief, Docket
#10; Petitioner’s Response, Docket #11; Respondent’s Reply, Docket #12).
For the reasons explained below, the Court’s suspicion was correct—Price’s
petition is untimely and must be denied.
Price was convicted of numerous serious felonies in Winnebago
County Circuit Court in January 1991. (Docket #10-1 at 2). He was sentenced
to life imprisonment in February 1991. Id. Price appealed, the Wisconsin
Court of Appeals affirmed his conviction in March 1994. (Docket #10-2 at
2). The Wisconsin Supreme Court denied Price’s petition for review on June
14, 1994. (Docket #1 at 3). On February 6, 2014, almost twenty years later,
Price filed a motion for post-conviction relief in Wisconsin state court.
(Docket #10-3 at 18). The motion was denied by the circuit court in February
2015, and Price appealed. Id. at 22. The Court of Appeals affirmed that
denial on August 10, 2016. (Docket #10-4). Price sought review in the

Wisconsin Supreme Court, which rejected his request on December 13,
2016. (Docket #10-5 at 1). Price’s federal habeas petition was filed on
September 11, 2017. (Docket #1).
As explained in the Court’s screening order, state prisoners seeking
federal habeas review have one year from the date their judgment of
conviction became final to file their petition. 28 U.S.C. § 2244(d)(1). A
judgment is “final” under this rule at “the conclusion of direct review [in
the state appellate courts] or the expiration of the time for seeking such
review.” Id. § 2244(d)(1)(A); Ray v. Clements, 700 F.3d 993, 1003 (7th Cir.
2012). This includes the ninety-day period allowed for filing a petition for
writ of certiorari with the U.S. Supreme Court. Ray, 700 F.3d at 1003. For
Price, who did not seek certiorari, this means that his conviction appeared
to be final as of September 12, 1994.
However, the statute of limitations described in Section 2244(d)(1)
was put in place by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Newell v. Hanks, 283 F.3d 827, 832 (7th Cir. 2002). AEDPA was
enacted on April 24, 1996. Id. The correct deadline for Price’s federal habeas
filing, then, was April 24, 1997. Id. Even with this extended deadline, Price’s
instant petition was filed just over twenty years too late.
Price suggests two reasons why his extreme tardiness should be
excused. The first is the “actual innocence gateway.” Gladney v. Pollard, 799
F.3d 889, 895 (7th Cir. 2015). As its name suggests, the actual innocence
gateway allows a court to excuse a procedural failing, such as untimeliness,
when a petitioner “‘presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless error.’” Id. at 896 (quoting
Schlup v. Delo, 513 U.S. 298, 316 (1995)). The gateway is narrow and is only
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available to Price if he shows “that ‘in light of new evidence, it is more likely
than not that no reasonable juror would have found [him] guilty beyond a
reasonable doubt.’” Id. (quoting House v. Bell, 547 U.S. 518, 537 (2006)).
Price failed to meet this evidentiary burden because he has presented
almost no evidence at all. The only evidence before the Court are Price’s
sworn statements in his petition, see (Docket #1 at 6-7), and nine pages of
documents attached to his brief, (Docket #11-1). The statements in the
petition are unsupported by any affidavit testimony or other evidence. The
first document attached to Price’s brief is a 2004 affidavit from Price’s
former counsel in his criminal case, and though it covers many various
topics, Price does not explain its relevance to his actual innocence claim. See
(Docket #11-1 at 1-6; Docket #11 at 7-8). The other document is a letter to
Price from the state public defender in response to his complaints about his
lawyer’s inaction. (Docket #11-1 at 7-8). Neither document supports any of
the assertions in the petition. Price’s minimal evidence does nothing to
shake the Court’s confidence in the outcome of his trial. In other words, his
uncorroborated statements in the petition supply no basis for the Court to
conclude that it is more like than not that no reasonable juror would have
found him guilty.
Price’s second avenue for avoiding the statute of limitations is
equitable tolling. Equitable tolling can excuse an untimely petition if the
petitioner establishes “(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014)
(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). This is “a highly factdependent area in which courts are expected to employ flexible standards
on a case-by-case basis.” Id. at 684 (quotations omitted). “[T]he threshold
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necessary to trigger equitable tolling is very high,” and it is “an
extraordinary remedy [which] is rarely granted.” United States v. Marcello,
212 F.3d 1005, 1010 (7th Cir. 2000); Obriecht v. Foster, 727 F.3d 744, 748 (7th
Cir. 2013).
Even where it applies, equitable tolling can only offer a “brief
extension of time during which a late filing will be accepted.” Gray v.
Zatecky, 865 F.3d 909, 912 (7th Cir. 2017). The Seventh Circuit has held that
a petition which was just two months late could not be saved by equitable
tolling. Gladney v. Pollard, 799 F.3d 889, 894-95 (7th Cir. 2015). The Court
finds that Price’s two-decade delay, by itself, almost completely closes the
door on his request for equitable tolling. Any sliver of viability is destroyed
by Price’s lack of diligence. Even taking his statements in his brief as true
(they are not sworn), there are substantial gaps between his various
attempts to attack his criminal conviction. Indeed, Price has no explanation
at all for the period from late 2009 until early 2014, a period which on its
own would have exhausted the limitations period many times over. The
majority of Price’s argument is that his incarceration impeded his ability to
litigate, and that his lawyer was dilatory, but these are not extraordinary
circumstances. Lombardo v. United States, 860 F.3d 547, 552 (7th Cir. 2017);
Socha, 763 F.3d at 685-86.
In sum, Price’s petition is untimely and he has not carried his burden
to forgive that fact via equitable relief. His petition must, therefore, be
denied. Under Rule 11(a) of the Rules Governing Section 2255 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), Price must make a “substantial
showing of the denial of a constitutional right” by establishing that
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“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 a 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). As the Court discussed above, reasonable
jurists would not debate whether the petition should have been resolved in
a different manner. As a consequence, the Court is further compelled to
deny a certificate of appealability as to Price’s petition.
Finally, the Court closes with some information about the actions
that Price 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). Moreover, 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
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than one year after the entry of the judgment. The court cannot extend this
deadline. Id. 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 Petitioner Mark H. Price’s petition for a writ
of habeas corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner Mark H. Price’s petition (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 18th day of December, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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