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Habeas Procedure – Filing Deadline – “Mailbox Rule”

Elliot D. Ray v. Clements, 7th Cir No. 11-3228, 11/19/12

seventh circuit decisionappeal following remand in 592 F.3d 793 (7th Cir 2010) (summarized in prior post)

… (W)e hold that in cases where the pro se prisoner’s post-conviction motion is not received, the petitioner must submit a sworn statement and some evidence to support his claim that he timely delivered the filing to a prison official, but once he satisfies this evidentiary showing, the burden shifts to the state to prove that his federal habeas petition is untimely.

The 1-year limitation period for filing a federal habeas petition after exhausting state appeal remedies is tolled by “a properly filed application for State … collateral review,” 28 U. S. C. § 2244(d)(2). In Wisconsin, that typically means, as in this instance, a § 974.06 motion (though it could certainly include a Knight habeas petition). The State says that Ray’s habeas was untimely because his  § 974.06 motion fell outside the 1-year limitation period, therefore his 2254 habeas necessarily was untimely. Ray urges adoption of the prison mailbox rule enunciated by Houston v. Lack, 487 U.S. 266, 276 (1988) (pro se prisoner’s notice of appeal deemed filed at the moment he or she delivers it to prison authorities for forwarding to court clerk). He also contends that, because he gave his § 974.06 motion to a prison official for mailing within the 1-year window, it should be considered “properly filed” for purposes of AEDPA tolling even though the motion didn’t make it to the circuit court. The court agrees with Ray, in a decision of first impression:

… We … adopt the rule set forth by the majority of our sister circuits that the prisoner mailbox rule governs whether a state post-conviction document is “properly filed” under the AEDPA limitations period unless the state has clearly rejected it. Because Wisconsin has not clearly rejected it, the mailbox rule applies in this case.

Wisconsin procedural law is at issue here, and we think it is clear that Wisconsin has fully embraced the Houston mailbox rule. First, Wisconsin does not require “actual receipt” for a post-conviction motion to be deemed properly filed. The state’s principal citation, Wis. Stat. § 801.16(1), simply states that court filings “shall be made by filing them with the clerk of circuit court.” And Wisconsin Statute section 809.80(3), which says that the court clerk must “receive” a filing before the applicable deadline for it to be “timely,” does not apply to pro se prisoners. See Wis. Stat § 809.80(3)(e). Instead, a pro se prisoner’s petition is filed “on the date that the confined person delivers a correctly addressed petition to the proper institution authorities for mailing,” provided that the prisoner files a “certification or affidavit setting forth the date on which the petition was delivered to the proper institution authorities for mailing.” Id.

Second, the Supreme Court of Wisconsin made its endorsement of the Houston mailbox rule abundantly clear in State v. Nichols, 635 N.W.2d 292, 295-96 (Wis. 2001). In that case, the court, persuaded by Houston’s rationale, applied the mailbox rule to a pro se prisoner’s state certiorari action. Id. at 298 (“We are persuaded by the rationale in Houston”). It doing so, the court explained that it was not “mandat[ing] any particular procedure that [pro se prisoner] litigants must follow,” but “a certificate of service or affidavit of mailing . . . would create a rebuttable presumption that the prisoner had delivered his or her petition to the proper prison authorities on the particular day certified.” Id. at 299.

… Ray, therefore, can rely on the Houston mailbox rule to statutorily toll AEDPA’s limitations period, even though Wisconsin permits section 974.06 post-conviction motions to be filed at any time.

Who has the burden of proving the mailbox rule has been satisfied? The petitioner bears the burden of proving “equitable tolling” (notwithstanding litigant’s diligent pursuit of remedy, some extraordinary circumstance prevented timely filing), but § 2244(d)(2) statutory tolling “is one step removed from equitable tolling.” Whereas equitable tolling comes into play only after a petition has been deemed untimely, statutory tolling is applied to determine if the petition is untimely. Thus: “the state should have to prove that each of the 365 days it relies on for its affirmative defense actually qualifies as a ‘countable’ day under the statute.”

Traditionally, courts have placed the burden of proof on the party in the best position to prove its case. … And it just “makes sense to place at least some of the burden on the parties with the best access to the information.” Saleem v. Keisler, 520 F. Supp. 2d 1048, 1059 (W.D. Wis. 2007). So “all else being equal, the burden [of proof] is better placed on the party with easier access to relevant information.” Nat’l Commc’n Ass’n Inc. v. AT&T Corp., 238 F.3d 124, 130 (2d Cir. 2001). In the habeas context, the state is in the best position to prove that the limitations period has run. It will “usually be able to meet this burden by pointing to materials already before the district court, namely, by pointing [to] the petition itself,” or by presenting evidence that it can easily access from the prison. See Griffin, 308 F.3d at 653.

… If the state raises an AEDPA statute of limitations defense, the petitioner must come forward with some evidence to support his claim that, with the benefit of the Houston mailbox rule, 365 countable days have not elapsed from the time his state-court judgment became final to the time he filed his federal habeas petition. See Allen, 471 F.3d at 1198. After the petitioner makes this evidentiary showing, the burden shifts to the government to prove that the limitations period has run. See id.

We recognize the need to identify some limiting principle. Otherwise, as the state correctly points out, a prisoner’s purported filing might be “properly filed” or “pending” for years without anyone knowing. To avoid this, we think the petitioner’s requisite evidentiary showing should be exacting. The prisoner’s sworn declaration should identify the who, what, when, where, how, and why of his alleged delivery to a prison official. And in cases where the purported filing is not received by the court, the petitioner must supply a sworn declaration attesting to these facts plus some other corroborating evidence. This “other evidence” can be documentary (for example, copies of the filing, postmarked envelope, or other correspondences). Or, it may be testimonial. But once the pro se prison litigant adduces such evidence, he has done all that is required. The burden then shifts to the state to show untimeliness.

We also reject the Ninth Circuit’s “diligence” requirement. We agree with the Eleventh Circuit that a prisoner’s lack of diligence cannot operate to unfile a filed document. …

Best for last: the district court found as matter of fact that Ray wasn’t credible, and had not delivered the motion to a prison official, but the court of appeals holds that this finding is clearly erroneous and grants relief. As discussed in the prior post, the court previously decided the substantive issue – violation of confrontation – in Ray’s favor. With the procedural obstacle (timeliness) now removed, the court now vacates Ray’s conviction. The pdf opinion-file is 109 pages long and should be read closely by the interested reader, especially with respect to review of findings of fact.

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