Wagner, Ronald v. Dittman, Michael

Filing 44

Transmission of Notice of Appeal, Appeal Information Sheet, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 42 Notice of Appeal (Attachments: # 1 Info Sheet, # 2 2/7/2014 Order, # 3 Judgment, # 4 4/4/2014 Order, # 5 4/10/2014 Order, # 6 Docket Sheet) (elc),(ps)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RONALD HELMUT WAGNER,
Petitioner,

ORDER

v.

l 2-cv-48 7-wrnc

MICHAEL DITTMAN, Warden,
Red Granite Correctional Institution,
Respondent.

State inmate Ronald Helmut Wagner is presently incarcerated at the Red Granite
Correctional Institution, from which he filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging a 2005 state court conviction. Respondent
moves to dismiss, arguing that the petition is barred by the governing one-year statute of
limitations. (Dkt. # 21). Both parties have provided briefing. For reasons set forth
below, the court will grant respondent's motion and dismiss the petition.

FACTS
Wagner was charged in St. Croix County Case No. 04CF380 with second-degree
sexual assault, stemming from an incident at the St. Croix County Jail when Wagner was
a detainee. The victim was another inmate, who testified that Wagner fondled his penis
and then penetrated him anally while the two were alone in a jail bathroom. A jury
found Wagner guilty as charged on January 20, 2005 . On May 10, 2005, the circuit
court sentenced Wagner to serve 12 years of initial confinement followed by a ten-year
term of extended supervision.

After the circuit court denied Wagner's motion for
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post-conviction relief in 2008, the Wisconsin Court of Appeals affirmed the conviction in
an unpublished opinion on November 16, 2010. See State v. Wagner, 2011 WI App 1,
330 Wis. 2d 832, 794 N .W.2d 926. The Wisconsin Supreme Court denied his petition
for review on April 12, 2011. See State v. Wagner, 2011 WI 29, 332 Wis. 2d 277, 797
N .W.2d 523.
On June 29, 2012, Wagner executed a two-page motion requesting leave to file a
"protective" petition for a writ of habeas corpus under 28 U .S.C. § 2254. 1 Wagner listed
six cursory grounds for relief in his motion, but included no supporting facts and no
information about which of his underlying convictions he wished to challenge. (Dkt. #
1). Instead, Wagner indicated that a formal petition was "almost complete, needing only
a few additions and corrections, printing and mailing." He reportedly planned to file that
petition within thirty days. On July 12, 2012, Wagner followed up with a letter and a
$5.00 filing fee, stating that "the actual petition" would arrive within several days. (Dkt.
# 3) . Although Wagner subsequently submitted a box of state court records, no petition

followed.
Having still received no petition almost five months later, the court issued an order
on December 7, 2012, advising Wagner that his original submission failed to comply with
pleading requirements outlined in Rule 2 of the Rules Governing Section 2254 Cases in

l Petitioner's original pleading is actually dated "July 29, 201 2," which appears to be a
typographical error. The pleading was received for filing on July 9, 201 2, and post-marked
July 7, 201 2. Using the date most favorable to W agner, the court will consider the original
submission as filed on the date it was executed. See H ouston v. Lack, 48 7 U.S. 266, 276 (1988)
(recognizing the "prison mailbox rule"); Cmter v. H odge, 726 F.3d 917, 918 (7th Cir. 20 13)
(explaining that the "official filing date" for any prose prisoner submission is the date that it

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the United States District Courts, providing that a petitioner must "state the facts
supporting each ground" for relief and follow a standard form.

(Dkt. # 4). Therefore,

the court directed Wagner to file a proper petition within thirty days or his case would be
"dismissed without further notice under Fed. R. Civ. P. 4l(b)." (emphasis in
original). To assist, the clerk's office also provided Wagner with an approved form for
use by state prisoners under 28 U.S.C. § 2254. Alternatively, Wagner was told that he
could use any similar form available at the prison law library.
Wagner did not comply by submitting a proper petition within the time allowed.
At Wagner's request, the court nevertheless granted an extension of time, up to and
including February 7, 2013, in which to comply with its December 7 order.

After

Wagner failed to comply or otherwise respond with this extended deadline, the case was
dismissed without prejudice under Fed. R. Civ. P. 4l(b) on February 15, 2013.
After his case was closed, Wagner filed a motion on February 21, 2013, requesting
thirty additional days to file a formal petition.

The court granted the requested

extension, but advised Wagner that his case would be re-opened for consideration only if
he filed a petition using an approved form no later than March 22, 2013. The court also
expressly warned Wagner that his case would remain closed should he fail to file a
petition as directed before the March 22 deadline. Wagner did not comply and his case
remained closed.
On March 25, 2013, Wagner filed a yet another request for an extension, this time
seeking 45 additional days in which to submit his now long-past-due petition. With no

was tendered to prison authorities for mailing).
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meaningful information about the status of his challenged conviction and no facts
describing the substance or procedural posture of Wagner's claims, the court concluded
that there was no basis to extend the deadline further.

Accordingly, Wagner's case

remained closed.
On April 25, 2013, Wagner finally submitted a petition setting forth information
about his underlying conviction and claims for relief.

That petition was executed by

Wagner on April 9, 2013. (See Dkt. # 12). On May 14, 20 13, the court reinstated this
case.
Wagner contends that he is entitled to relief

und~r

28 U.S.C. § 2254 for the

following reasons: ( 1) he was denied his constitutional right to represent himself at trial
in St. Croix County Case No. 04CF380; (2) the state failed to collect sexual assault
evidence or preserve exculpatory evidence in the form of the victim's phone records; (3)
the state withheld exculpatory evidence; (4) he was denied process to compel witness
testimony; (5) he was denied effective assistance of counsel at trial; and (6) the state
presented "false and misleading" testimony at trial. The state court of appeals found no
merit in any of these claims. Respondent moves to dismiss, arguing that the petition is
untimely and, therefore, barred by the applicable statute of limitations on federal habeas
corpus review.
OPINION
I.

Statute of Limitations for Habeas Review

Since the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214, federal habeas corpus review of a state court conviction
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has been governed by a one-year limitations period found in 28 U.S.C. § 2244(d)(l).
Lindh v. Murphy, 521 U .S. 320 ( 1997). The AEDPA's limitations on collateral review of

state court convictions are based on "principles of comity, finality, and federalism."
Williams

1
1.

Taylor, 529 U.S. 420, 436 (2000).

Specifically, the one-year limitations

period found in 28 U.S.C. § 2244(d)(l), which is designed to "encourag[e] prompt filings
in federal court in order to protect the federal system from being forced to hear stale
claims." Carry v. Saffold, 536 U.S. 214, 226 (2002).
To the extent that Wagner challenges a state court conviction originally entered in
2005, the statute of limitations for federal habeas corpus review began to run 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." 28 U.S.C. § 2244(d)(l)(A) . Here, the
Wisconsin Court of Appeals affirmed Wagner's conviction in St. Croix County Case No.
04CF380 in an unpublished opinion on November 16, 2010, and the Wisconsin Supreme
Court denied his petition for review on April 12, 2011. See State v. Wagner, 2011 WI 29,
332 Wis. 2d 277, 797 N .W.2d 523 . Although Wagner did not pursue a petition for a
writ of certiorari with the United States Supreme Court, his time to do so nevertheless
expired 90 days later on July 11, 2011.

That date, therefore, triggered the one-year

statute of limitations found in 28 U.S.C. § 2244(d)( l)(A) , which expired no later than
July 11, 2012. See Newlin v. Hanks, 283 F.3d 827, 833 (7th Cir. 2002) (holding that the
one-year time limit begins to run the day after the Supreme Court denies certiorari" and

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expires on the "anniversary date"). 2

Executed by Woodard on April 9, 2013, and

received by the court for filing on April 25, 2013, the pending federal habeas corpus
petition was late by at least nine months.

A. Wagner's Request for Leave to File a Protective Petition
Because he requested leave to file a protective petition while he still had some time
left on the limitations period, Wagner maintains that his April 2013 petition should be
considered timely. Although styled as a protective petition, the request actually sought
an extension of time to seek federal habeas corpus relief.
Standing alone, a conclusory request for leave to proceed, like the one filed on June
29, 2012, has been held ineffective to confer jurisdiction or toll the statute of limitations.

See United States v. Leon, 203 F.3d 162, 163 (2d Cir. 2000) (concluding that a federal
court lacks jurisdiction to consider whether a proposed collateral challenge under 28
U.S.C. § 2255 is timely under the AEDPA's one-year statute of limitations, until such a
motion is actually filed); Fierro v. Cockrell, 294 F.3d 674, 680 (5th Cir. 2003) (holding that
a motion seeking authorization to file a habeas petition is not an actual petition and does
not toll the statute of limitations). Moreover, there was no information in Wagner's
request suggesting neither any grounds for granting an extension of time nor any assertion
of facts that might support tolling the limitations period under any other theory. See

Because his case was dismissed, the formal petition that he submitted in April 2012 does
not "relate back" to the date of his original submission. See Newlin , 283 F.3d at 834 (citing
Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir. 2001) ("relation back" doctrine
inapplicable where dismissal of initial habeas corpus petition left nothing for the new petition
to relate back to); Marsh v. Soares, 223 F.3d 12 17, 1219-20 (10th Cir. 2000) (collecting
cases)) .
2

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Rhines v. Weber, 544 U.S. 294 (2005) (authorizing a stay and abeyance in limited
circumstances); see also Socha v. Pollard, 621 F.3d 661, 659-70 (7th Cir. 2010)
(distinguishing Leon).
Under these circumstances, Wagner's preliminary filing was insufficient to qualify
as a pending "application for a writ of habeas corpus" as contemplated by 28 U .S.C.
§ 2244(d)( 1). See Woodford v. Garceau, 538 U.S. 202, 207 (2003) (holding that a motion

for a stay of execution and motion for appointment of counsel along with a statement of
non-frivolous issues were insufficient to serve as a "pending" petition for purposes of the
AEDPA); see also Mayle v. Felix, 545 U.S. 644, 655 (2005) (discussing what an inmate
must plead with particularity in the petition to comply with Rule 2, including complying
with form language detailing "all the grounds for relief from the conviction or sentence
that you challenge"); O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998)
(holding that a petition that is returned as insufficient under Rule 2 of the Rules
Governing Section 2255 Cases does not count as an initial petition).
Even assuming that Wagner's request for leave to file a protective petition had
been sufficient to halt the statute of limitations, the case was also later dismissed after
Wagner failed to comply with a court order to submit a proper habeas petition that
comported with the Rules Governing Section 2254 Cases. As the chronology set forth
above amply shows, after Wagner had already delayed his filing for months, the court
issued an order on December 7, 2012, directing him to file a proper petition within thirty
days or face dismissal for want of prosecution. Even after extending that deadline an
additional thirty days through February 7, 2013, Wagner still failed to submit a timely
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formal petition. As a result, this case was properly dismissed on February 15, 2013, for
want of prosecution without prejudice pursuant to Fed. R. Civ. P. 4l(b) . Given his
failure to comply with the court's orders, Wagner does not demonstrate that dismissal was
improper. See Slack v. McDaniel, 529 U.S. 473, 489 (2000) (stating in the federal habeas
context that "[the petitioner's] failure to comply with an order of the court is grounds for
dismissal with prejudice"); see also McFarland v. Scott, 512 U.S. 849, 856 ( 1994) ("Federal
courts are authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face").
When this case was dismissed and closed, the statute of limitations "lapsed," which
means it is as though the initial pleading had never been filed. See N ewell, 283 F.3d at
834 (citing Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000) (if a case is
dismissed without prejudice, the statute of limitations is deemed to have continued
running from whenever the cause of action accrued, without interruption by the filing of
that case)); see also Duncan v. Walker, 533 U.S. 167, 181 -82 (2001) (holding that the
statute of limitations is not tolled during the pendency of a federal petition); Tucker v.

Kingston, 538 F.3d 732, 734 (7th Cir. 2008) (citing Rhines, 544 U .S. at 274 ("the filing of
a petition for habeas corpus in federal court does not toll the statute of limitations")).
For this reason, the statute of limitations in this case expired on July 11 , 2012.

B. Wagner's Request for Additional Time
Wagner argues that the court erred by refusing to grant a third request for an
extension of time in March 2013. This argument overlooks the fact that his case had
already been dismissed without prejudice on February 15, 2013.
8

More importantly,

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district courts do not have unfettered discretion to extend the time to seek federal habeas
corpus relief. See Rhines, 544 U.S. at 276 (noting that the AEDPA, and the interests of
comity, finality and timeliness, "circumscribe" a district court's discretion to issue a stay
in a federal habeas proceeding). Rather, district courts have only limited discretion to
stay a federal habeas proceeding, such as when a petitioner has failed to exhaust his state
court remedies. See id. at 277.
Even if the court had discretion here, a stay is only warranted where a petitioner
demonstrates, at a minimum, "good cause" for his delay.

Id. at 277-78 (noting that

where a petitioner has intentionally engaged in delay, a district court should not grant a
stay at all) .

Id. at 278.

But for reasons outlined briefly below, Wagner also

demonstrates neither good cause for his delay nor any other basis for staying or extending
the limitations period here.
C. Equitable Tolling

Wagner also appears to argue that his delay should be excused for equitable
reasons . Equitable tolling is an exceptional remedy that is sparingly applied. See I1Win v.

Department of Veterans Affairs, 498 U.S. 89, 96 ( 1990); see also Obriecht v. Foster, 727 F.3d
744 (7th Cir. 2013) ("Equitable tolling is an extraordinary remedy and so 'is rarely
granted."'). The Supreme Court has clarified that a '"petitioner' is 'entitled to equitable
tolling' only if he shows ' ( 1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way' and prevented timely filing."' Holland

v. Florida , 560 U.S. 631 , 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544
U .S. 408, 418 (2005)) . The petitioner bears the burden of proving that equitable tolling
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is warranted. Pace, 544 U.S. at 418; Ray v. Clements, 700 F.3d 993, 1007 (7th Cir. 2012).
Wagner falls far short of carrying that burden here. As noted previously, Wagner
was convicted in 2005, making that conviction final no later than July 11, 2011. Wagner
waited nearly a year, until June 29, 2012, to even execute his two-page request for
authorization to file a protective petition.

Given this timing, Wagner was obviously

aware that he had lone year left in which to submit a formal petition and that this
window was rapidly closing. Nevertheless, while promising to file his completed petition
within 30 days, Wagner did not actually file one until April 2012.
While Wagner would blame the court for not granting his June 29 request for
authorization to file his petition, and therefore causing him to hesitate, this argument is
unpersuasive for three reasons.

First, the challenged conviction became final in July

2011, giving Wagner ample time to draft and file a proper habeas corpus petition before
his deadline expired in July 2012.

Second, Wagner acknowledged in his request for

authorization that the statute of limitations was about to expire, which means that he
knew he needed to pursue relief promptly. Third, he followed up with a letter on July 12,
insisting that an "actual petition" would be submitted within days.3 (Dkt. # 3).
In any event, Wagner repeatedly ignored the court's subsequent, written orders
setting deadlines for filing the petition itself under penalty of dismissal of the lawsuit.
Only after Wagner missed these deadlines did the court finally dismiss. Since Wagner
knew he was on the brink of his limitations period and dismissal, his failure to promptly

Included along with this letter was the filing fee and two boxes of state court records, but no
petition. The letter, like the request for authorization, appears to be dated June 29, 2012,

3

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file a petition indicates a clear lack of diligence on his part. Under these circumstances,
equitable tolling does not apply. See Pace, 544 U.S. at 419 (stating the general rule that
"lack of diligence precludes equity's operation") (citations omitted).
Offering an alternative explanation for his delay, Wagner alleges that he was
unable to file a formal petition before the deadline established in the court's December 7
order (directing him to file a formal petition within 30 days) because a "computer disk
failure" resulted in the total loss of his petition and supporting brief. Then, on January 8,
2013, officers seized all of his legal materials. Although he was granted an extension of

time until February 7, 2013, Wagner contends his court records and other documents
were not returned to him until March 13, 2013. Wagner was then unable to work on his
petition until March 21, 2013, due to a viral infection that affected his ability to read and
write. Finally, W agner claims to have only been granted access to the law library on April
9, 2013, when he completed the pending habeas petition and a motion to reinstate his

closed case. Citing these efforts, Wagner argues that he is entitled to equitable tolling
from January 8 through April 9, 2013.
Even if tolling were available for the time requested, the challenged conviction
became final on July 11 , 2011 , and Wagner still offers no explanation for his lack of
diligence or his decision to wait until June 29, 2012, to request authorization to file a
protective petition in the first place. Equitable tolling is not available where, as here, the
petitioner squanders his federal limitations period.
Wagner argues, nevertheless, that his failure to file a timely petition should be

but it was received for filing with the court on July 12. (Dkt. # 3).
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excused because he is actually innocent. "[A] credible showing of actual innocence may
allow a prisoner to pursue his constitutional claims on the merits notwithstanding the
existence of a procedural bar to relief." McQuiggi.n v. Perkins, - U.S.-, 133 S. Ct. 1924,
1931 (2013). That standard for doing so is "demanding and permits review only in the
'extraordinary' case." House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup v. Delo,
513 U.S. 298, 327 ( 1995)).

To be credible, a habeas petitioner must present "new

reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence -

that was not presented at trial." Schlup, 513

U.S. at 324 (emphasis added). A petitioner must then show t hat "it is more likely than
not that," in light of the new evidence, "no reasonable juror would have found petitioner
guilty beyond a reasonable doubt." Id. at 326-27.
In support of his request for equitable tolling on this basis, Wagner maintains that
he is innocent because the sexual assault did not happen.

Notably, this claim was

rejected during a collateral review proceeding in state court in 2008, because Wagner
failed to present evidence that "could not have been discovered prior to trial." Dkt. #
22, Exh. 4, Amended Order, State of Wisconsin v. Ronald H. Wagner, Case No. 04CF380
(May 23, 2008). Wagner's current claim of actual innocence is unaccompanied by any
evidence, much less "new" evidence, that could not have been discovered before trial.
This is insufficient to demonstrate a credible claim of act ual innocence for purposes of
overcoming a procedural default or fitting within the equitable exception to the statute of
limitations on federal habeas review.
None of Wagner's other allegations demonstrate that he was prevented from filing
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a timely petition by an exceptional circumstance. Lack of access to legal materials does
not constitute an exceptional circumstance in this case because Wagner neither alleges nor
shows that he was deprived of these materials at any time before the statute of limitations
expired on July 11, 2012. As the Seventh Circuit has recognized, "[w]hen an inmate,
despite roadblocks thrown in his way, has reasonable time remaining to file a habeas
petition in a timely manner, the circumstances cannot, as a definitional matter, be said to
have prevented timely filing, as the standard requires ." Taylor v. Michael, 724 F.3d 806,
811-12 (7th Cir. 2013) (citing Hizbullahankhamon v. Walker, 255 F.3d 65, 75-76 (2d Cir.
2001) (Sotomayor, J.) (denial of access to prison law library early in the one-year period
did not prevent timely filing)), cert. denied, 2014 WL 102626 (Jan. 13, 2014) (No.
13-7124).

Because Wagner does not carry his burden to demonstrate that equitable

tolling is available, the petition must be dismissed as untimely filed. Accordingly, the
court will grant the respondent's motion and close this case.

II.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or

deny a certificate of appealability when entering a final order adverse to petitioner. To
obtain a certificate of appealability, the applicant typically must make a "substantial
showing of the denial of a constitutional right." 28 U .S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U .S. 274, 282 (2004). Where denial of relief is based on procedural grounds,

the petitioner must also show that "jurists of reason . . . would find it debatable whether
the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U .S. 473,
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484 (2000). Generally, this means 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 further."

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted).
Although the rule allows a court to ask the parties to submit arguments on whether
a certificate is warranted, it is not necessary to do so here because the briefing was
adequate to resolve the procedural issue in this case. Because reasonable jurists would
not debate whether a different result was required, no certificate of appealability will
issue.

ORDER
IT IS ORDERED that:
1. Respondent Michael Dittman's motion (dkt. # 21) is GRANTED and the

federal habeas corpus petition filed by state inmate Ronald Helmut Wagner
(dkt. # 12) is DISMISSED with prejudice as barred by the one-year statute
of limitations found at 28 U.S.C. § 2244(d)(l).
2. A certificate of appealability is DENIED. If petitioner wishes he may seek
a certificate from the court of appeals under Fed. R. App. P. 22.
Entered this 7th day of February, 2014.
BY THE COURT:

Isl
WILLIAM M. CONLEY
District Judge

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