Taylor v. Michael
| Decision Date | 30 July 2013 |
| Docket Number | No. 11–2855.,11–2855. |
| Citation | 724 F.3d 806 |
| Parties | Mark F. TAYLOR, Petitioner–Appellant, v. Billie J. MICHAEL, Warden, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Meredith A. Shippee (argued), Attorney, Foley & Lardner, LLP, Chicago, IL, Thomas L. Shriner, Jr., Foley & Lardner LLP, Milwaukee, WI, for Petitioner–Appellant.
Gopi Kashyap (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.
Before MANION and KANNE, Circuit Judges, and LEE, District Judge. *
The Grant Park, Illinois, police arrested Mark F. Taylor on August 5, 2000, based on allegations that he had engaged in improper sexual behavior with three children. He was subsequently charged and convicted in Illinois state court for a variety of crimes related to these allegations. Taylor challenged his conviction on both direct appeal and collateral review in the Illinois system with the assistance of retained counsel. Failing at each step along the way, Taylor next attempted to file a pro se petition for habeas corpus in federal court. By the time Taylor filed his petition, however, the statutorily-imposed time limit for presenting his habeas case had expired. Taylor appears before us now requesting that we exercise our equitable powers to toll the limitations period and take up the merits of his case. Finding that Taylor does not meet the standard for equitable tolling, we agree with the district court that Taylor's petition is not timely and should therefore be denied.
Because we determine that Taylor's petition is untimely, it is unnecessary to plumb the factual depths of his case. It suffices to say that on January 7, 2002, he was convicted on eight criminal counts (out of a charged nine) for initiating inappropriate relationships with several minor children. After the trial, Taylor's retained attorney—Mark D. Johnson—withdrew from the case. With the assistance of new counsel, Taylor moved for a new trial, alleging a variety of errors including ineffective assistance of counsel. The trial court agreed that Johnson's representation was deficient in some respects, specifically in Johnson's failure to impeach or even cross-examine some witnesses. Consequently, the court vacated four of the eight counts of conviction. On the remaining four counts, the trial court sentenced Taylor to eleven years in prison (an eleven-year sentence for one count that ran concurrently with a 180–day sentence for the three other counts).
Taylor appealed the four unvacated counts. He continued to argue that he was denied effective assistance of counsel with respect to these counts because of Johnson's failures during the trial. Taylor also made several other arguments: that his warrantless arrest should have been quashed; that he was denied his right to remain silent; that he did not knowingly and intelligently waive his right to a jury trial; that the trial court should have held a competency hearing for several of the underage witnesses; that the court improperly allowed video testimony; and that Taylor's silence was improperly taken into account at sentencing. (Appellant's Br. at 12.) Rejecting all of Taylor's arguments, the Illinois Appellate Court affirmedTaylor's convictions on May 28, 2004. The Illinois Supreme Court rejected Taylor's Petition for Leave to Appeal (“PLA”) on November 24, 2004, thereby ending his direct appeal.
Taylor filed for state post-conviction relief on April 18, 2005. See725 ILCS 5/122–1. In his petition to the Circuit Court of Kankakee County, Taylor argued that his trial attorney (Johnson) represented him while under a conflict of interest and was thus unconstitutionally ineffective. The crux of Taylor's argument was that, while Johnson was putatively representing Taylor in the original Kankakee County criminal proceedings, Johnson was simultaneously under indictment in McLean County, Illinois, on four felony bribery charges. 1 Taylor alleged that Johnson never informed him, nor informed the trial court, of the pending charges and that, if Taylor had known of the charges, he would not have hired Johnson. Finding Taylor's arguments unpersuasive, the trial court dismissed Taylor's post-conviction petition on November 10, 2005. The Illinois Appellate Court affirmed that judgment on December 6, 2007.
Taylor wanted to appeal his case further, but he continued to have trouble with the attorneys he hired. After the Illinois Appellate Court affirmed the dismissal of Taylor's petition for post-conviction relief, he retained America's Criminal Defense Group (“ACDG”), which he describes as “an online law firm based in California.” (Appellant's Br. at 15.) It seems that ACDG served as a point of contact for Taylor and found attorneys who could represent him in his continuing appeals. ACDG initially assigned Nebraska attorney Paula Hutchinson to Taylor's case. She filed a petition for rehearing with the Illinois Appellate Court after it affirmed the dismissal of Taylor's post-conviction petition. Taylor says, however, that “Hutchinson was non-responsive on a number of occasions to queries by both previous counsel ... and by Mr. Taylor.” 2 ( Id.)
ACDG next assigned attorney Ross M. Eagle to Taylor's case. Eagle filed Taylor's post-conviction PLA in the Illinois Supreme Court and remained his attorney through that court's denial of the PLA on May 28, 2009. Taylor alleges, however, that Eagle did not inform him of the denial until a meeting on July 29, 2009, over two months later. During that meeting, says Taylor, Eagle gave him a copy of Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009), and told him that the deadline for filing a petition of habeas corpus in federal court was one year from the PLA denial plus the time during which he could have filed a petition for certiorari with the U.S. Supreme Court. Note, however, that this calculation was not correct. Jimenez stands for the proposition that the limitations period is tolled during the period a defendant can petition for certiorari on direct appeal, id. at 119–20, 129 S.Ct. 681 but does not speak to the post-conviction process. Indeed, a certiorari petition from post-conviction review does not toll the time limit or otherwise act as a grace period. Lawrence v. Florida, 549 U.S. 327, 331–32, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). Taylor has not presented us with any method of verifying the content of that July 29 meeting, such as an affidavit from Eagle, but it is apparent that Taylor misunderstood the law on this point.
Based on that July 29 meeting, and on communication between Taylor's mother and ACDG in the fall of 2009, Taylor continued to believe that ACDG attorneys would file a habeas corpus petition on his behalf. In January 2010, however, ACDG confirmed to Taylor that it would not represent him in federal post-conviction review. Taylor searched for alternate counsel and began to prepare a pro se petition.
Taylor filed his pro se habeas corpus petition in the United States District Court for the Central District of Illinois on August 17, 2010. The petition alleged that Taylor was denied the right to trial counsel and that he was denied due process based on the state's alleged presentation of perjured testimony at trial. The first claim mirrored Taylor's arguments from the state post-conviction proceedings—that Johnson represented Taylor under a conflict of interest and was otherwise ineffective. On the due process claim, Taylor argued that the recent conviction of Grant Park Police Chief Scott Fitts for a bribery and extortion scheme would support a finding that Fitts, who had testified against Taylor at trial, had fabricated all or part of his testimony.
Taylor's petition made clear he assumed his filing was timely. The filing deadline, he stated, was August 26, 2010. Taylor calculated this date as one year from the date the Illinois Supreme Court rejected his PLA, plus a 90–day grace period (the period Taylor erroneously believed was tolled for the filing of a certiorari petition with the U.S. Supreme Court). The respondent, however, moved to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1). The district court granted the motion and entered judgment on that basis on July 6, 2011. (R. 13.)
We granted Taylor's request for a certificate of appealability on March 29, 2012. (Dkt.13.) In our order, we decided that Taylor had met the certificate of appealability standard for the two substantive arguments he made to the district court: that he had received unconstitutionally ineffective assistance of trial counsel and that the state had denied him due process by presenting Fitts's perjured testimony. ( Id.) We noted, however, that it would be necessary for both parties to “address the antecedent timeliness questions presented by this appeal.” ( Id.) In the end, these timeliness questions dictate the outcome of this case. For the reasons described below, we agree with the district court that Taylor's petition was untimely.
Taylor's petition for a writ of habeas corpus was undeniably tardy. 3 Taylor does not deny this fact, although he advances an argument for why his tardiness should be excused by this court: that some period of time should have been equitably tolled. We cannot find the equitable tolling argument convincing, however, and so we dismiss this case for the simple reason that Taylor did not file his petition within the statutorily prescribed time limit.
Equitable tolling—a court's decision to toll some period of time to allow a petitioner to overcome an otherwise breached limitations period—is an exceptional remedy available to a habeas petitioner who 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, 177 L.Ed.2d 130 (2010) (internal quotation marks...
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