Gladney v. Pollard
| Citation | 799 F.3d 889 |
| Decision Date | 26 August 2015 |
| Docket Number | No. 13–3141.,13–3141. |
| Parties | Myron A. GLADNEY, Petitioner–Appellant, v. William POLLARD, Respondent–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Michael Louis Lindinger, Attorney, Mayer Brown LLP, Washington, DC, for Petitioner–Appellant.
William L. Gansner, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.
Before BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge.*
Petitioner Myron Gladney challenges his 1996 Wisconsin conviction for murdering Christopher Wilson. At trial, Gladney did not dispute that he intentionally killed Wilson, but he argued unsuccessfully that he should not be found guilty of first-degree intentional homicide because he acted in what Wisconsin calls “imperfect self-defense.” Imperfect self-defense, unlike perfect self-defense, does not serve as a complete defense to the charge of first-degree intentional homicide but instead mitigates that charge down to second-degree intentional homicide. Over a decade later, Gladney filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that (1) his due process rights were violated because subsequent state case law cast doubt on whether he was convicted under the correct imperfect self-defense standard and (2) his trial counsel was constitutionally ineffective for failing to interview a witness who would have corroborated his self-defense theory. The district court concluded that the petition was untimely under 28 U.S.C. § 2244(d)(1) and rejected Gladney's theory that the statute of limitations did not apply to his claims because he has demonstrated actual innocence.
We affirm. Gladney's federal petition was filed far too late. Even if the limitations period could have been tolled until Gladney found out about his counsel's failure to interview the witness, his petition would still have been filed well outside the adjusted limitations period. Gladney's attempt to invoke the narrow actual innocence exception to disregard the time limits for seeking federal habeas relief, see Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), is not persuasive.
Gladney killed Wilson in August 1996 when Gladney confronted Wilson about money Wilson owed him. According to Gladney, Wilson had robbed him at gunpoint several weeks earlier during a dice game. Gladney and Wilson knew each other prior to the robbery, so Gladney thought he would try to talk to Wilson about getting his money back. When Gladney ran into Wilson one week after the robbery, Wilson promised to return the money. When Gladney met up with him two weeks after that, however, Wilson had changed his mind and refused to honor his earlier promise.
Wilson's refusal to pay led to an argument that escalated quickly. Gladney testified that he hoped to end the argument and turned away from Wilson. But as he was doing so, he decided to take out his gun and hold it by his side. When Gladney was distracted by a car horn, Wilson rushed him and grabbed his wrist. They struggled for the gun. During that struggle, Gladney was shot in the arm, but he also shot Wilson multiple times, killing him.
The State charged Gladney with first-degree intentional homicide. At trial, Gladney did not argue that he had not intentionally shot and killed Wilson. He argued instead that he should not be found guilty of first-degree intentional homicide because he acted in self-defense. Gladney testified at trial that he shot Wilson because he feared Wilson would gain control of his gun and kill him. Gladney argued that he had been particularly afraid given Wilson's reputation for violence and the earlier armed robbery. The jury rejected the self-defense theory and found Gladney guilty of first-degree intentional homicide. The court sentenced Gladney to life in prison without parole for a minimum of seventy-five years.
Over a decade later, and long after the first round of post-conviction review was complete, Gladney seeks post-conviction relief based on two developments that took place after his conviction became final. First, he argues that his trial counsel was ineffective for failing to interview Carl Calhoun, a man who had also been present at the robbery and could have corroborated Gladney's claim that Wilson had robbed him. Gladney claims he did not learn of his counsel's failure to interview Calhoun until 2010 when he happened to run into Calhoun in prison. At this chance meeting, Gladney asked Calhoun why he did not testify about the robbery at his trial. Calhoun explained that he had never been contacted by Gladney's lawyer.
Second, after Gladney's conviction became final, Wisconsin modified the standard for “imperfect self-defense,” which can transform first-degree intentional homicide into second-degree intentional homicide with a much less severe sentence. Gladney presents this as a federal claim that his conviction violated the Due Process Clause of the Fourteenth Amendment because the State was permitted to convict him without proving all of the elements of intentional first-degree murder. See Fiore v. White, 531 U.S. 225, 228–29, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001) (per curiam).
Under Wisconsin law, to convict a person of first-degree intentional homicide the State is required to defeat any credible claim of self-defense. Wis. Stat. § 940.01(3). Gladney claims that the State was not required to do so here because it was given the option of defeating his imperfect self-defense claim merely by attacking the objective reasonableness of his threshold belief that he was preventing or terminating an unlawful interference with his person. At the time of his trial, this accurately stated the law of imperfect self-defense in Wisconsin. See State v. Camacho, 176 Wis.2d 860, 501 N.W.2d 380, 388–89 (1993). After Gladney's trial, however, the Wisconsin Supreme Court held that the State cannot defeat a claim of imperfect self-defense by arguing that the defendant's threshold belief was objectively unreasonable. See State v. Head, 255 Wis.2d 194, 648 N.W.2d 413, 434, 437 (2002) (). Now, the only way the State can defeat such a claim is by proving that the defendant did not subjectively believe the amount of force used was necessary to prevent death or great bodily harm to himself. Id.
Gladney's state conviction became final on January 12, 1999. He did not file his federal habeas petition until July 17, 2013. The district court ordered Gladney to show cause why his petition should not be dismissed as untimely. The court explained that unless some form of statutory or equitable tolling applied, Gladney's petition was untimely because he would have needed to file his federal petition by January 12, 2000, one year after his state court conviction became final. See 28 U.S.C. § 2244(d)(1)(A).
The district court rejected Gladney's attempts to toll the limitations period—either statutorily or equitably—based on his 2010 discovery that his lawyer had failed to interview Calhoun. The district court also concluded that Gladney had failed to establish that he should be exempt from the limitations period altogether because he was actually innocent of his crime of conviction. The district court dismissed the petition as untimely and decided not to issue a certificate of appealability.
Gladney appealed. We granted a certificate of appealability on both of his constitutional claims and also directed the parties to address the timeliness questions presented by the petition. We asked the parties to address whether the petition might be considered timely and, if not, whether Gladney can demonstrate that he is entitled to an equitable exception to § 2244(d)(1)'s timeliness requirements because he is actually innocent of his crime of conviction.
Under 28 U.S.C. § 2244(d)(1)(A), a state prisoner seeking federal habeas relief has just one year after his conviction becomes final in state court to file his federal petition. Gladney was convicted by a jury on November 21, 1996. Wisconsin courts may elect to conduct direct review of a conviction at the same time they review a post-conviction petition, and that is what happened here. See Socha v. Boughton, 763 F.3d 674, 678 (7th Cir.2014). Simultaneous review does not change the time when the limitations clock starts under § 2244(d)(1). See id. at 678–79. For purposes of § 2244(d)(1)(A), therefore, the limitations period expired on January 12, 2000, which was one year after the date Gladney could no longer seek certiorari from the Wisconsin Supreme Court's October 14, 1998 decision to deny review. See Morales v. Boatwright, 580 F.3d 653, 657 (7th Cir.2009).
Gladney did not file either of the two state post-conviction petitions raising the claims on which his federal petition is based until much later. He filed the first on October 5, 2009 and the second petition on April 7, 2010. Though the clock did not run from the time Gladney filed his October 5, 2009 petition in state court to its resolution on May 14, 2012, when the Wisconsin Supreme Court denied review of both petitions, see § 2244(d)(2) ; Carter v. Litscher, 275 F.3d 663, 665–66 (7th Cir.2001), Gladney's July 17, 2013 federal filing was still well outside the one-year limitations period that began when his conviction first became final back in January 1999.
This appeal centers on whether Gladney has a legally viable basis for allowing such a late federal habeas petition. We agree with the district court that he does not. We consider first, and briefly, Gladney's arguments for statutory or equitable tolling, and then his argument for actual innocence based on his theory of imperfect self-defense.
Gladney gestures in the direction of statutory tolling under § 2244(d)(1)(D) as...
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