Thomas v. Smith

Filing 15

ORDER signed by Judge J.P. Stadtmueller on 4/25/2018: DISMISSING 1 Petitioner's Petition for Writ of Habeas Corpus as untimely; DENYING Certificate of Appealability; DENYING as moot 11 Petitioner's Motion for Extension of Time to File Brief; DENYING 13 Petitioner's Motion to Supplement Brief; and DISMISSING CASE. (cc: all counsel, via mail to Ervin W. Thomas at Oshkosh Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ERVIN W. THOMAS,
Petitioner,

v.

Case No. 17-CV-1598-JPS-JPS

JUDY P. SMITH,
Respondent.

ORDER

On December 29, 2017, the Court screened the habeas petition of
Petitioner Ervin W. Thomas (“Thomas”). (Docket #4). The Court
determined that the petition appeared to be untimely and ordered further
briefing on the issue. Id. at 7–9. The parties have fully briefed the matter,
and for the reasons stated below, the Court finds that the petition is
untimely and must be dismissed.1
1.

BACKGROUND
For the benefit of the reader, the Court reproduces much of its

recitation of the facts from the screening order. Thomas’ petition focuses on
the Interstate Agreement on Detainers (“IAD”), codified in Wisconsin in
Wis. Stat. § 976.05, which requires a defendant to be brought to trial within
180 days of a demand for the same. “The IAD is a congressionally approved
interstate compact that establishes procedures for the transfer of a prisoner
in one jurisdiction to the temporary custody of another.” States v. Thomas,

Thomas filed a motion for an extension of time to file his brief on the
timeliness issue. (Docket #11). The motion is dated March 9, 2018, but was not filed
with the Court until March 16, 2018, two days after Thomas submitted his brief.
See (Docket #10). Because Thomas timely filed his brief, the motion for extension
of time will be denied as moot.
1

834 N.W.2d 425, 429 (Wis. Ct. App. 2013) (quotation omitted). Central to
this case is when Thomas’ notice invoking his IAD speedy-trial right was
considered to be received by the Milwaukee County District Attorney’s
Office. See Wis. Stat. § 976.05(3)(a).
On August 27, 2009, Thomas was charged in Milwaukee County
Circuit Court with kidnapping, second-degree sexual assault, and sexual
assault of a child under sixteen years of age. A warrant was issued the same
day.
On March 10, 2010, the warden of the Illinois prison where Thomas
was serving another sentence wrote a letter to the Milwaukee County
District Attorney, informing him that Thomas had completed several forms
requesting a speedy trial under the IAD. Certified mail return receipts show
that on March 15, 2010, an employee for Information Management Services
Distribution (“IMSD”)—the mailroom service for the Milwaukee County
office building containing the district attorney’s office—received Thomas’s
speedy-trial request under the IAD. The request was then directed to the
district attorney’s office, where it was received on March 18, 2010.
During the course of the prosecution, the parties argued when the
IAD clock would expire. The trial court, having received the March 18 filedstamped IAD request from the district attorney and not the March 15
certified mail return receipt from IMSD, ruled that the clock did not begin
to run until March 18. On September 13, 2010, the date on which trial was
scheduled to begin, Thomas pled guilty to kidnapping, in violation of Wis.
Stat. § 940.31(1)(a), and second degree sexual assault of a child, in violation
of Wis. Stat. § 940.02(2). His plea would have fallen within the IAD period
only if it began to run on March 18, not March 15. He filed a motion in the
trial court seeking to vacate his pleas once he discovered the March 15
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certified mail return receipt from IMSD, but the trial court denied it, ruling
that IMSD could not be considered the district attorney’s agent for receipt
of IAD notices.
Thomas was sentenced on August 31, 2011, to an indeterminate
period of eighteen years of imprisonment on the kidnapping count, and to
an indeterminate period of eighteen years of imprisonment on the seconddegree-sexual-assault-of-a-child count, to be served concurrent to the
kidnapping count, but consecutive to any other sentence. The judgment of
conviction was entered that same day.
Thomas appealed on September 14, 2012, arguing that his rights
under the IAD had been violated because the IAD period began to run on
March 15, 2010. Alternatively, Thomas asserted that he should not be
responsible for the delay caused by the mail service and should be
permitted to rely on the date IMSD received his notice. The Wisconsin
Court of Appeals rejected these arguments and affirmed the conviction in a
decision issued May 29, 2013. He filed a petition for discretionary review of
these issues in the Wisconsin Supreme Court on June 28, 2013. That request
was denied on November 26, 2013. Thomas sought reconsideration of the
denial of discretionary review, but the court denied this request on April
11, 2014. Thomas did not file a petition for a writ of certiorari to the U.S.
Supreme Court.
Next, on November 14, 2014, Thomas, now proceeding pro se, filed a
motion for post-conviction relief pursuant to Wis. Stat. § 974.06. The motion
raised several arguments, including: (1) that Thomas was denied the
effective assistance of counsel at trial and on appeal; (2) that Thomas’s IAD
rights were violated; (3) that his trial attorney was constitutionally
ineffective for failing to contact a state official regarding whether IMSD was
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authorized to receive his IAD notice; and (4) that the State withheld material
and exculpatory evidence from him—namely, the IMSD certified mail
return receipt filed-stamped March 15, 2010. The trial court denied the
motion on November 21, 2014. Thomas tried unsuccessfully to commence
an appeal of this ruling by filing the motion directly in the Court of Appeals,
and then again in the Wisconsin Supreme Court. Neither court accepted the
motion as a proper way to lodge an appeal of the denial of post-conviction
relief.
Thomas filed a second post-conviction motion on November 6, 2015,
this time with the assistance of a jailhouse lawyer. The motion asserted a
claim of newly discovered evidence—specifically, a September 10, 2014
letter from the Milwaukee County Office of Corporation Counsel relating
to IMSD’s authority to accept mail for the district attorney, and entries from
signature logs in the district attorney’s office. That motion was denied on
November 17, 2015 in the trial court under State v. Escalona-Naranjo, 517
N.W.2d 157 (Wis. 1994), which bars a prisoner from raising issues in a
successive motion for post-conviction relief that could have been raised in
a prior motion. His appeals therefrom were also unsuccessful. The
Wisconsin Court of Appeals affirmed the trial court’s ruling on March 15,
2017, and the Wisconsin Supreme Court denied discretionary review on
June 12, 2017. He sought reconsideration of the Supreme Court’s decision,
but that too was denied in an order dated June 30, 2017.
Thomas filed the instant petition on November 16, 2017. His claims
mirror those raised at various times in the state proceedings. First, Thomas
says that his trial and appellate counsel were ineffective for failing to
persuade the state courts of the merits of his IAD claim. Second, Thomas
contends that the State withheld material and exculpatory evidence from
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him in the form of the March 15 certified mail receipt from IMSD. Third,
Thomas raises a separate ineffectiveness charge against his trial counsel,
claiming that counsel should have contacted IMSD prior to his guilty plea
and asked whether the IMSD employee who actually handled Thomas’ IAD
notice was authorized to sign the certified mail receipt for it. Fourth is
Thomas’ newly discovered evidence claim, wherein he says he was entitled
to renew his IAD challenge once he received additional evidence
suggesting that the IAD notice was received in the district attorney’s office
on March 15, 2010—i.e., the mailroom log.
2.

ANALYSIS
The merits of Thomas’ petition are not presently before the Court.

The threshold question is whether Thomas’ petition was timely filed and, if
not, whether that late filing may be excused. For the reasons detailed below,
the Court answers both questions in the negative.
2.1

Thomas’ Petition is Untimely

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 Section 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 ninety days allowed for filing for certiorari. See Ray v.
Clements, 700 F.3d 993, 1003 (7th Cir. 2012).
Thomas’ petition is undoubtedly untimely. His direct appeal ended
on November 26, 2013, the day that the Wisconsin Supreme Court denied
his request for discretionary review. His motion to reconsider that decision
did not prolong his appeal for two reasons. First, the Wisconsin Supreme
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Court is not authorized to reconsider a denial of review. Hanson v. Haines,
No. 13–CV–0896, 2014 WL 4792648, at *2 (E.D. Wis. Sept. 25, 2014) (citing
Archdiocese of Milwaukee v. City of Milwaukee, 284 N.W.2d 29, 30 (Wis. 1979)).
Second, denial of discretionary review has no effect on the underlying
judgment. Id.; Dep’t of Banking of Neb. v. Pink, 317 U.S. 264, 266–67 (1942).
Consequently, Thomas’ 90-day period for petitioning the U.S. Supreme
Court began to run on November 26, 2013, and expired on February 26,
2014. As another branch of this Court has observed, to hold otherwise
“would allow prisoners to effectively extend the time they have to file a
§ 2254 petition in federal court by filing improper motions in state court.”
Hanson, 2014 WL 4792648, at *3. As noted above, Thomas did not seek a writ
of certiorari, so the one-year habeas clock started to run on February 26,
2014.
His first post-conviction motion was filed 261 days later, on
November 13, 2014. It was denied after a period of seven days, during
which the statute of limitations was tolled. 28 U.S.C. § 2244(d)(2) (“The 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 any period of limitation under this
subsection.”). Thomas tried to appeal by filing his post-conviction motion
directly with the state appellate courts. This is not the proper method for
appeal under Wisconsin procedure, and so none of the time the Wisconsin
appellate courts may have considered this “appeal” can be tolled. Ray, 700
F.3d at 1003 (whether a state post-conviction proceeding is “properly filed”
under Section 2244(d)(2) is governed by state procedural law). Instead, the
limitations clock restarted on November 21, 2014, the day the trial court
denied the motion.
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Another 350 days elapsed before he filed his second post-conviction
motion on November 6, 2015. Because the one-year limitations period had
already expired long before this motion was filed, none of the state
proceedings concerning it could toll that period. See Teas v. Endicott, 494
F.3d 580, 582–83 (7th Cir. 2007); Tinker v. Moore, 255 F.3d 1331, 1333 (11th
Cir. 2001). As the Eleventh Circuit has explained, once the limitations
period expires, there is nothing left to toll. Tinker, 255 F.3d at 1333. Tolling
is very different from reinstating the limitations period. Id.
Thus, because the second round of post-conviction proceedings did
not toll the habeas limitations period, the 584 days during which it was
pending, from November 6, 2015, to the denial of discretionary review in
the Wisconsin Supreme Court on June 12, 2017, constitute countable days
under Section 2244(d). Finally, 157 more days passed after the denial of
discretionary review on the second post-conviction motion before Thomas
filed his petition in this Court. In total, then, 1,352 countable days, or nearly
four years, have passed since Thomas’ conviction became final. Thus, there
is no question that Thomas’ petition is untimely.2

In its screening order, the Court erroneously suggested that the second
round of post-conviction proceedings tolled the habeas clock. (Docket #4 at 7). The
Court rectifies that oversight in the present order. In any event, even if the
pendency of the second round of post-conviction proceedings served to toll
Section 2244(d), the federal petition was still late.
2

The appeal of the denial of the second post-conviction motion concluded
on June 12, 2017, when the Wisconsin Supreme Court denied Thomas’ request for
discretionary review. As with his direct appeal, the time during which the state
supreme court considered his motion for reconsideration of the denial of
discretionary review could not toll the habeas limitations period because such a
request is not cognizable under Wisconsin law and therefore was not part of the
“properly filed” post-conviction motion. Hanson, 2014 WL 4792648, at *2; Ray, 700
F.3d at 1003. Thus, only the time from November 6, 2015, to June 12, 2017, could
be excluded from the limitations calculation. 28 U.S.C. § 2244(d)(2). If the habeas

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2.2

Thomas Does Not Fall Within Any Exception to the Statute
of Limitations Bar

The parties’ briefs focus on whether Thomas’ untimely filing may be
excused. There are two common-law exceptions to the statute of limitations
bar: the “actual innocence” gateway and equitable tolling. The actual
innocence gateway applies 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, Thomas must show that new
evidence makes it unlikely that he would have been found guilty. Id. at 896.
Thomas does not argue that the actual innocence gateway applies in
his case, and rightly so, since he pleaded guilty to his crimes. Notably, all
of his arguments to the state courts and this Court have to do with potential
IAD violations. Nowhere does he claim innocence of the charged crimes.
The two questions are entirely distinct, notwithstanding that both have as
a potential remedy his release from imprisonment.
The second potential exception to the limitations bar is “equitable
tolling.” 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

clock could be tolled during that time—and it clearly cannot be—it would cause
the number of countable days to shrink to 768, still well past the length of time
afforded under the statute for filing a federal habeas petition.

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pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Id. at 683–84; Holland v.
Florida, 560 U.S. 631, 649 (2010).
Thomas is not entitled to the extraordinary remedy of equitable
tolling. First, he contends that the district attorney withheld the certified
mailroom log, which he submitted for the first time in connection with his
second post-conviction motion. That misconduct, in Thomas’ view, should
have tolled the habeas limitations period. His theory appears to rest on
Section 2244(d)(1)(D), which provides that the federal habeas clock begins
to run only once the petitioner discovers the factual predicates for his claims
or should have discovered them through the exercise of due diligence. 28
U.S.C. § 2244(d)(1)(D).
Section 2244(d)(1)(D) affords Thomas no relief. The records Thomas
submitted with his petition, as well as the decisions of the state courts on
his second post-conviction motion, establish that Thomas undoubtedly
knew of the existence of the mailroom log no later than September 10, 2014,
the date he received the letter from district attorney’s office with the log
attached. See (Docket #1-1 at 57). Thus, Thomas discovered the factual
predicate for his IAD claim based on the mailroom log no later than
September 10, 2014.3
Assuming that the time the log was “withheld” should not be
counted for purposes of Section 2244, that only explains Thomas’ delay for
the period from the conclusion of his direct appeal on February 26, 2014 to

As noted above, Thomas did not raise the log in his first post-conviction
motion filed a month after he received the state attorney’s letter. For that very
reason, the state courts denied him leave to raise the log in his second postconviction motion, finding that he was able to but did not timely assert the log as
a basis for post-conviction relief.
3

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September 10, 2014, or 196 days. Thomas’ argument about the district
attorney’s misconduct, if believed, says nothing of his diligence or the
obstacles preventing the institution of his federal habeas action during the
other 1,156 countable days.
Thomas’ other excuses do not adequately justify this considerable
period of delay. At times, Thomas suggests that his pro se status precipitated
his late filing. See (Docket #10 at 9). Yet incarceration, lack of legal training,
and lack of access to counsel are generally not sufficient reasons to support
the application of equitable tolling. Socha, 763 F.3d at 685; Tucker v. Kingston,
538 F.3d 732, 735 (7th Cir. 2008). Moreover, although he seems to think his
petition is timely because only five months elapsed between the disposition
of his second post-conviction motion and the filing of the instant petition,
(Docket #10 at 9), he is mistaken, as he must account for all countable time
under the statute. Generalized complaints about filing obstacles, or excuses
that pertain only to small portions of the countable time, do not suffice.
Further, Thomas suggests that this Court should revisit the state
appellate courts’ determination that his post-conviction appeals were not
perfected, as finding that the appeals were proper would toll more time
under Section 2244. But this Court is without power to review the state
courts’ determination of how to lodge an appeal under state law. See
Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir. 2000); Perry v. McCaughtry,
308 F.3d 682, 688 (7th Cir. 2002). Those rulings must stand. And with respect
to the second post-conviction motion, as explained above, there was no time
left on the habeas clock to be tolled.
Finally, while Thomas mentions that the prison law library was
closed for “weeks at a time,” hindering his ability to prepare his petition,
id. at 1, he does not provide the dates of such closings nor explain how they
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ate up all of the limitations period. Likewise, though he complains of delays
occasioned by extensions of time request by state lawyers and delays in
rulings by state courts, id., neither of these things stopped him from filing a
protective habeas petition in this Court, see Pace v. DeGuglielmo, 544 U.S.
408, 416 (2005). In sum, Thomas’ pleas for leniency fall well short of the
extraordinarily high bar set for obtaining the benefit of equitable tolling.4
As a result, the Court concludes that Thomas has not shown
entitlement to either exception to the statute of limitations bar, and his
petition must be dismissed as untimely.
3.

CONCLUSION
For the reasons stated above, the Court finds that Thomas’ petition

is untimely and that he has not satisfied any of the exceptions to the statute
of limitations bar.
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), the petitioner 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

Thomas filed a motion to supplement his brief on April 11, 2018. (Docket
#13). It will be denied. It was filed well after the close of briefing, it merely restates
arguments he made in his brief, and although it alludes to “court documents” he
wishes the Court to review, none are attached to the filing and he does not describe
the nature of the documents in any meaningful fashion. As explained herein,
delays in state court proceedings would have little or no effect on the issue of
Thomas’ diligence. Allowing supplementation at this late stage will only cause
needless delay in resolution of this matter, so the motion will be denied.
4

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further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). As the Court’s discussion above makes clear, in light of the
undisputed facts and the paltry arguments Thomas offered to justify his
late filing, no reasonable jurists could debate whether his petition is timely
or whether its late filing should be excused. As a consequence, the Court is
compelled to deny him a certificate of appealability.
Finally, the Court closes with some information about the actions
that Thomas 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 thirty days
of the entry of judgment. 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. Id.
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 twenty-eight days of the entry of judgment. The Court cannot extend
this deadline. 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. 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’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DISMISSED as untimely;
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IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner’s petition be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Petitioner’s motion for extension
of time to file his brief (Docket #11) be and the same is hereby DENIED as
moot;
IT IS FURTHER ORDERED that Petitioner’s motion for leave to
supplement his brief (Docket #13) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly
Dated at Milwaukee, Wisconsin, this 25th day of April, 2018.
BY THE COURT:

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

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