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Even with tolling due to discovery of new evidence, habeas petition was untimely

Myron A. Gladney v. William Pollard, 7th Circuit Court of Appeals No. 13-3141, 8/26/15

In 2013 Gladney filed a habeas petition challenging his state conviction, which became final in 1999. The district court properly dismissed the petition as untimely because even if the limitations period could have been tolled until Gladney found out about his counsel’s failure to interview a defense witness, his petition would still have been filed well outside the adjusted limitations period. Nor can Gladney satisfy the narrow “actual innocence” exception under Schlup v. Delo, 513 U.S. 298 (1995), to disregard the time limits for seeking federal habeas relief.

First, as to tolling the time limit based on the discovery of new evidence in support of a claim: Gladney’s only asserted basis for either statutory tolling under 28 U.S.C. § 2244(d)(1)(D) or equitable tolling is that he could not have filed a petition alleging the claims he does now until his February 4, 2010, discovery that his attorney failed to interview Calhoun, a potentially important defense witness, as part of his trial preparation. Even if all other criteria were satisfied, a new one-year limitations period would have expired on February 4, 2011, unless Gladney stopped the clock by seeking post-conviction review in state court. See § 2244(d)(2). While Gladney had state court post-conviction petitions pending on at least one of the claims beginning in 2009, that wasn’t enough to stop the clock until the Wisconsin Supreme Court denied review of those petitions on May 14, 2012. “That generous calculation would yield a new federal filing deadline of May 14, 2013, and Gladney’s July 17, 2013 filing would still have been two months late.” (Slip op. at 7-8).

Second, as to actual innocence, Gladney relied on the fact that, after his conviction, State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413 (2002), changed state law regarding imperfect self-defense, which is what he relied on at trial. Unfortunately, that change was applied only prospectively, State v. Lo, 2003 WI 107, 264 Wis. 2d 1, 665 N.W.2d 756, so it doesn’t help Gladney. (Slip op. at 10-14). Nor does the un-interviewed defense witness’s potential testimony amount to new evidence of actual innocence under Schlup‘s demanding standard: that there is “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 constitutional error,” Schlup, 513 U.S. at 316, or that “in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt,” House v. Bell, 547 U.S. 518, 537 (2006), quoting Schlup, 513 U.S. at 327. (Slip op. at 8-10, 14-18).

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