Price v. Richardson

Filing 7

ORDER signed by Judge J.P. Stadtmueller on 10/2/2017. Briefing as to statute of limitations issue to PROCEED as follows: Respondent's opening brief due by 11/1/2017; Petitioner's response due by 12/1/2017; Respondent's reply due by 12 /15/2017. No extensions of time for filing these briefs will be granted. 3 Petitioner's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. See Order. (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

On September 11, 2017, Petitioner Mark H. Price (“Price”) filed this
petition pursuant to 28 U.S.C. § 2254, asserting that his state court
conviction and sentence were imposed in violation of the Constitution.
(Docket #1). After proceeding to trial in Winnebago County Circuit Court
in February 1991, Price was convicted of first degree intentional homicide
and various related charges. Id. at 2. On February 20, 1991, he was sentenced
to life imprisonment. Id. Price appealed his conviction beginning in March
1992, but it was upheld at each level of the Wisconsin court system. Id. at 3.
Rule 4 of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an initial screening of
habeas corpus petitions and to dismiss a petition summarily where “it
plainly appears from the face of the petition…that the petitioner is not
entitled to relief.” This rule provides the district court the power to dismiss
both those petitions that do not state a claim upon which relief may be
granted and those petitions that are factually frivolous. See Small v. Endicott,
998 F.2d 411, 414 (7th Cir. 1993). Upon an initial Rule 4 review of habeas
petitions, the court will analyze whether the petitioner has avoided statute

of limitations bars, exhausted available state remedies, avoided procedural
default, and set forth cognizable constitutional or federal law claims.
The court begins its Rule 4 review by examining the timeliness of
Price’s petition. 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
within the meaning of § 2244(d)(1)(A) 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)).
Price’s petition presents an enormous timeliness problem. Price’s
state level appeals ended on June 14, 1994, with the Wisconsin Supreme
Court’s denial of his petition for review. (Docket #1 at 3). Price did not seek
certiorari from the U.S. Supreme Court. Id. at 4. Thus, the clock for Price’s
statute of limitations began to tick on September 12, 1994. The instant
petition was not filed until almost precisely thirteen years later. Price did
file a motion for post-conviction relief, but not until February 6, 2014. Id.
Such motions can toll the expiration of the statute of limitations, but they
do not restart the clock. Graham v. Borgen, 483 F.3d 475, 477 (7th Cir. 2007).
In other words, Price’s one-year window closed long before his postconviction motion was filed, so there was nothing for the motion to toll.
Though Price appears to have missed his deadline for filing his
petition, that does not end the Court’s analysis. There are two common-law
exceptions that still might apply to render Price’s petition timely: the
“actual innocence” gateway and equitable tolling. The actual innocence
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gateway allows excuse of a procedural default 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.’” Gladney v. Pollard, 799 F.3d 889, 896 (7th Cir. 2015)
(quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). In other words, to be
entitled to the actual innocence gateway, Price must show that new
evidence makes it unlikely that he would have been found guilty. Id. at 896.
The second potential exception is “equitable tolling.” See United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Equitable tolling 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) (quotation omitted). To be entitled to equitable tolling, a petitioner
bears the burden of establishing: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Id. at 683–84 (citing Holland v. Florida, 560 U.S.
631, 649 (2010); Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008)) (internal
quotation marks omitted). Though it seems impossible that Price could
have an excuse for such a delayed filing, the Court of Appeals cautions
against dismissing a case on timeliness grounds without eliciting argument
from the parties. See, e.g., Gildon v. Bowen, 384 F.3d 883 (7th Cir. 2004) (“it is
difficult to conceive of a situation where a claim of equitable tolling would
be clear on the face of the petition,” thus, it is generally accepted that the
Court should not dismiss a petition sua sponte on timeliness grounds,
without input from the parties; also noting that the limitations period of 28
U.S.C. § 2244 “is an affirmative defense, [which] the state has the burden
of” proving) (citing Acosta v. Artuz, 221 F.3d 117, 121–22 (2d Cir. 2000);

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United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J. concurring)); see also
Ray, 700 F.3d at 1006.
Nevertheless, because of the nigh-insurmountable procedural
hurdle Price’s petition faces, the Court finds it most prudent to order
briefing on the statute of limitations issue prior to any argument on the
merits of the case. The parties will, therefore, present their positions on the
timeliness of Price’s petition in accordance with the following schedule:
Respondent’s opening brief:

November 1, 2017

Petitioner’s response:

December 1, 2017

Respondent’s reply:

December 15, 2017

These dates are not subject to adjustment. Once briefing is complete, the
Court will make a final determination on the timeliness issue. If Price’s
petition survives, the Court will complete the screening process.
Price also requests leave to proceed without prepayment of the $5.00
filing fee owed in this matter. (Docket #3). In light of his limited resources,
as detailed in his prison trust account statement, (Docket #4), the Court will
grant Price’s request.
Accordingly,
IT IS ORDERED that, on or before November 1, 2017, Respondent
shall file a brief concerning the timeliness of Petitioner’s petition. On or
before December 1, 2017, Petitioner shall file a response to Respondent’s
brief. On or before December 15, 2017, Respondent shall file a reply. There
will be no extensions of time granted for the filing of these briefs; and
IT IS FURTHER ORDERED that Petitioner’s motion for leave to
proceed without prepayment of the filing fee (Docket #3) be and the same
is hereby GRANTED.

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Dated at Milwaukee, Wisconsin, this 2nd day of October, 2017.
BY THE COURT:

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

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