Mosley v. Hepp

Filing 17

ORDER signed by Chief Judge William C Griesbach on 12/11/2018 Granting 15 Motion to Dismiss. Mosley's petition for relief under § 2254 is DENIED, and this case is DISMISSED. A certificate of appealability will be DENIED. (cc: all counsel, via US Mail to Mosley) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY L. MOSLEY,
Petitioner,
v.

Case No. 18-C-724

RANDALL R. HEPP,
Respondent.

ORDER GRANTING MOTION TO DISMISS

Petitioner Jeffrey L. Mosley filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging his 1994 conviction in Case No. 1993CF364. In that case, on January 7, 1994,
a jury found Mosley guilty of six counts of delivery of cocaine base as a party to a crime. Judgment
was entered on February 16, 1994. Mosley appealed, and the Wisconsin Court of Appeals affirmed
his conviction on March 13, 1996. The Wisconsin Supreme Court denied his petition for review on
July 29, 1996. On July 16, 1997, Mosley filed a motion for sentence modification in the circuit
court, which was denied on July 21, 1997. Mosley did not appeal. More than seventeen years later,
on October 16, 2014, Mosley filed a motion for postconviction relief, which was denied on March
13, 2015. The Wisconsin Court of Appeals affirmed on December 14, 2016, and the Wisconsin
Supreme Court denied a petition for review on May 15, 2017. On May 8, 2018, Mosley filed this
habeas petition, claiming that the circuit court abused its discretion, his counsel provided ineffective
assistance at trial, and the prosecutor engaged in misconduct. Because Mosley’s petition is untimely,
the respondent’s motion to dismiss will be granted, the petition will be denied, and the case will be
dismissed.

A § 2254 federal habeas petition that challenges a state court conviction is subject to a oneyear limitations period. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) sets forth the dates on which
this one-year period may begin to run. Relevant here is § 2244(d)(1)(A), which gives a habeas
petitioner one year from “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review” to file a petition. The limitations period
is tolled for “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.” § 2244(d)(2).
Mosley’s petition is untimely under § 2244(d)(1)(A). Mosley’s conviction became final and
the one-year limitations period began to run on October 27, 1996, ninety days after the Wisconsin
Supreme Court’s denial of his petition for review. See Sup. Ct. R. 13 (allowing ninety days after
entry of an order denying discretionary review to timely file a petition for a writ of certiorari);
Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). The one-year limitations period thus expired
on October 27, 1997. Although Mosley’s motion for sentence modification filed on July 16, 1997
and denied five days later tolled the limitations period for fifty-one days, see Wisconsin Statute §
808.04(1) (an appeal of a final order must be initiated within forty-five days), the limitations period
expired long before Mosley filed his next postconviction motion on October 16, 2014. Mosley’s
October 16, 2014 motion has no effect on the limitations period because the period had already
expired before the motion was filed. See De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009).
Equitable tolling does not forgive the petition’s untimeliness. In rare, extraordinary
circumstances, “the doctrine of equitable tolling permits a federal habeas petitioner to overcome a
breach of [Antiterrorism and Effective Death Penalty Act of 1996]’s one-year limitations period.”
Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016). To be entitled to equitable tolling, a habeas
2

petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way” that prevented timely filing. Holland v. Florida, 560
U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The habeas
petitioner bears the burden of demonstrating both elements; if either of the two elements is not met,
equitable tolling does not apply Carpenter, 840 F.3d at 870. Mosley, who has not responded to the
respondent’s motion to dismiss, has failed to demonstrate diligence, as he has offered no justification
for his unreasonable and lengthy delay in seeking habeas relief. Mosley has similarly failed to
demonstrate that an extraordinary circumstance prevented him from timely filing his habeas petition.
Mosley has not met his burden, so equitable tolling does not apply.
Because Mosley’s petition is untimely under § 2244(d)(1)(A) and no tolling, equitable or
otherwise, rectifies this untimeliness, the respondent’s motion to dismiss (ECF No. 15) is
GRANTED, Mosley’s petition for relief under § 2254 is DENIED, and this case is DISMISSED.
A certificate of appealability will be DENIED because I conclude that reasonable jurists could not
debate the outcome, and Mosley has not made a substantial showing of the denial of a constitutional
right.
Mosley is advised that the judgment entered by the Clerk is 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 (30) days of the entry of judgment. See Fed. R. App. P. 3, 4. In the
event Mosley decides to appeal, he should also request that the court of appeals issue a certificate
of appealability. See Fed. R. App. P. 22(b).
SO ORDERED this

11th

day of December, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
3