Xiong, Wua v. Dittman

Filing 7

ORDER that petitioner Wua Xiong may have until March 29, 2013, to submit materials in response to this order regarding equitable tolling and procedural default. Signed by District Judge Barbara B. Crabb on 3/5/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WUA XIONG,
ORDER
Petitioner,
12-cv-901-bbc
v.
WARDEN DITTMAN,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Wua Xiong, a prisoner at the Oakhill Correctional Institution, located in
Oregon, Wisconsin, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
He has paid the five dollar filing fee. The petition is before the court for preliminary review
pursuant to Rule 4 of the Rules Governing Section 2254 Cases. In a December 21, 2013
order, I gave petitioner a chance to submit a brief explaining why his petition is not barred
by the one-year statute of limitations found in 28 U.S.C. § 2244(d)(1). After considering
petitioner’s response to the December 21 over, I conclude that he will have to provide
further supplemental information showing why equitable tolling should apply and prevent
the case from being dismissed for procedural default.
From the petition, petitioner’s response to the court’s December 21, 2012 order and
court records available electronically, I find the following facts.

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FACTS
Petitioner Wua Xiong participated in an attempted armed robbery of a gun dealership
in 1994. Petitioner was either 14 or 15 years old at the time charges were pursued against
him, but he was waived into adult court. Under a plea agreement, petitioner entered an
Alford plea to a charge of attempted homicide and guilty pleas to attempted armed robbery
and operating a motor vehicle without the owner’s consent. The judgment of conviction was
entered on September 8, 1995. Petitioner filed a post conviction motion for a reduced
sentence, which was denied by the circuit court. Petitioner appealed the denial. On April
12, 2000, the Wisconsin Court of Appeals affirmed both the judgment of conviction and the
denial of petitioner’s post conviction motion. Petitioner filed a petition for review in the
Wisconsin Supreme Court, which denied the petition on June 13, 2000. Petitioner did not
seek review in the United States Supreme Court. Since 2006, petitioner has filed several
motions in state court for sentence modification and for post conviction relief. Petitioner’s
most recent motion for post conviction relief was denied on September 10, 2012, and his
motion for reconsideration of the denial was denied on October 26, 2012.

OPINION
A. Equitable Tolling
The petition in this case is governed by the Antiterrorism and Effective Death Penalty
Act (AEDPA) of 1996. Under this Act, all habeas corpus petitions are subject to a one-year
limitations period found in 28 U.S.C. § 2244(d)(1). The one-year limitations period is

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designed to "encourag[e] prompt filings in federal court in order to protect the federal system
from being forced to hear stale claims." Carey v. Saffold, 536 U.S. 214, 226 (2002).
As a general rule, this one-year statute of limitations begins to run at "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)(1)(A). Petitioner’s conviction became
final on September 11, 2000, 90 days after the Wisconsin Supreme Court denied his
petition for review. Anderson v. Litscher, 281 F.3d 672, 674-675 (7th Cir. 2002) (one-year
statute of limitations does not begin to run under §2244(d)(1)(A) until expiration of 90-day
period in which prisoner could have filed petition for writ of certiorari with United States
Supreme Court). His one-year limitations period began to run the next day, September 12,
2000.
The proper filing of a state court motion for collateral review tolls the one-year
limitations period, 28 U.S.C. § 2244(d)(2). Even assuming that each of petitioner’s motions
for post conviction relief was properly filed, more than six years passed between the date on
which the judgment of conviction became final and the day he filed his first post conviction
motion in state court. Therefore, it seems likely that the one-year statue of limitations for
bringing this motion has run out.
However, there are several statutory exceptions to the one-year statue of limitations.
These include (1) the creation by the State of an impediment to filing a petition; (2) The
existence of a newly recognized constitutional right made retroactive by the Supreme Court;
or (3) the discovery of new facts that could not have been discovered with due diligence on

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an earlier date. 28 U.S.C. § 2244(d)(1)(B)–(D). Also, an untimely petition might be saved
by the doctrine of equitable tolling, which would require petitioner to establish that
extraordinary circumstances outside the petitioner's control prevented the timely filing of the
habeas petition. Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004) (citation omitted);
see also Moore v. Battaglia, 476 F.3d 504, 506 (7th Cir. 2007).
In his original memorandum, petitioner suggested that he had only recently
discovered a new factual predicate for a claim, but he did not explain what that factual
predicate is or why he could have not discovered it earlier with due diligence.

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petitioner has responded to the order, stating that he was not given an interpreter (at the
time, petitioner understood only Hmong) or a competency hearing. These issues cannot
establish a new factual predicate because petitioner was aware of the facts when they
occurred. “Time begins when the prisoner knows (or through diligence could discover) the
important facts, not when the prisoner recognizes their legal significance.” Owens v. Boyd,
235 F.3d 356, 359 (7th Cir. 2000).
However, petitioner’s language difficulties raise a separate issue; whether equitable
tolling should apply to the petition because petitioner could not communicate in English
until recently. (He states that “[i]t has only been in the last 7 years that [he] has learned
rudimentary English speaking and writing skills”).
Courts are split on whether language barriers can equitably toll the statue of
limitations. E.g., Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008) (concluding that language
barrier could justify equitable tolling); Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir.

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2006) (same); but see, e.g., United States v. Galindo, 406 Fed. Appx. 322, 324 (10th Cir.
2011) (“[L]ack of knowledge regarding the law, including ignorance resulting from language
barriers, does not toll the statute of limitations.”); Yang v. Archuleta, 525 F.3d 925, 929
(10th Cir. 2008) (the Tenth Circuit has “consistently and summarily refused to consider
[lack of proficiency in the English language] as extraordinary, warranting equitable tolling”);
United States v. Montano, 398 F.3d 1276, 1280, n.5 (11th Cir. 2005) (holding that being
illiterate or having problems communicating in the English language is not a sufficient
ground to permit equitable tolling). I conclude that the cases considering the possibility of
equitable tolling are more persuasive. Nonetheless, a petitioner seeking equitable tolling
“must, at a minimum, demonstrate that during the running of the AEDPA time limitation,
he was unable, despite diligent efforts, to procure either legal materials in his own language
or translation assistance from an inmate, library personnel, or other source.” Mendoza v.
Carey, 449 F.3d at 1070. Petitioner’s latest submission provides some information about
his diligence but not enough to allow the court to make a determination on equitable tolling.
Accordingly, I will give petitioner a short time to submit a response to this order providing
further detail about the nature of his language barrier and his diligence in pursuing legal
assistance. In particular, petitioner should explain:
• Petitioner’s level of English ability during his trial.
• Precisely when petitioner developed English skills rendering him capable of filing
a petition for writ of habeas corpus. Put another way, how long as petitioner been
able to submit documents that are the quality of his current filings?
• How petitioner was able to submit numerous post conviction motions in the past
and his level of English skill at the times he made the submissions.

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• What actions petitioner took (and when) to try to obtain Hmong-language legal
materials, translation assistance or other legal help.
Petitioner’s response also raises the question whether he has procedurally defaulted
his claims. Before a federal court may consider the merits of a state habeas petitioner’s
claims, the petitioner must exhaust the remedies available to him in the state courts. 28
U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004). When the petitioner has already pursued his
state court remedies but failed to properly present his claims to the state courts along the
way, “it is not the exhaustion doctrine that stands in the path to habeas relief . . . but rather
the separate but related doctrine of procedural default.” Perruquet, 390 F.3d at 514. The
procedural default doctrine requires that state prisoners “not only become ineligible for state
relief before raising their claims in federal court, but also that they give state courts a
sufficient opportunity to decide those claims before doing so.” O’Sullivan, 526 U.S. at 854
(Stevens, J., dissenting). Under the procedural default doctrine, a federal court is not
allowed to reach the merits of a habeas claim if the petitioner either (1) failed to raise his
claim in the state courts and it is clear that those courts would now hold the claim
procedurally barred or (2) presented his claim to the state courts but the state court
dismissed the claim on a state procedural ground independent of the federal question and
adequate to support the judgment. Perruquet, 390 F.3d at 514 ; Moore v. Bryant, 295 F.3d
771, 774 (7th Cir. 2002); Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001).
The only claim presented in petitioner’s direct appeal was that psychological
examinations were a new factor entitling him to a reduction of sentence. Thus petitioner has

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not exhausted any of the grounds he raises in his petition:
• Petitioner had ineffective assistance of trial counsel during his questioning by
police, failing to argue that petitioner did not meet the criteria for waiver into adult
court, failing to obtain an interpreter or have a competency hearing before petitioner
was waived, failing to raise arguments during sentencing.
• Petitioner was sentenced under a charge for which he was not convicted.
• Petitioner’s due process rights were violated by the lack of a competency hearing
before his waiver into adult court.
Where a procedural default has occurred, federal habeas corpus review is available
only if the petitioner can demonstrate: (1) “cause for the default and actual prejudice as a
result of the alleged violation of federal law,” or (2) that “failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991); Steward v. Gilmore, 80 F.3d 1205, 1211-12 (7th Cir. 1996). Cause to overcome
a procedural default requires a showing “that some objective factor” prevented compliance
with the procedural rule. Coleman, 501 U.S. at 753 (citing Murray v. Carrier, 477 U.S. 478,
488 (1986)).

To show prejudice, a petitioner must present evidence that the alleged

violations “worked to his actual and substantial disadvantage,” infecting his entire
proceeding with “error of constitutional dimensions.” Perruquet, 390 F.3d at 515. A
fundamental miscarriage of justice is established only where the petitioner presents evidence
showing that a constitutional violation has “probably resulted” in the conviction of one who
is “actually innocent” of the charged offense. Dretke v. Haley, 541 U.S. 386, 393 (2004)
(citation and quotation omitted).
Petitioner will be given an opportunity to overcome his default by supplementing his

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petition to explain (1) what cause he may have for his failure to properly present his
defaulted claims in a timely appeal or to complete the appeals process; (2) what prejudice
he suffered as a result of his failure to raise these claims properly; or (3) whether he is
actually innocent of the offenses.

ORDER
IT IS ORDERED that petitioner Wua Xiong may have until March 29, 2013, to
submit materials in response to this order regarding equitable tolling and procedural default.
Entered this 5th day of March, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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