Balsewicz v. Kingston, 04-2629.

• Decision Date: 06 October 2005
• Docket Number: No. 04-2629.,04-2629.
• Citation: 425 F.3d 1029
• Parties: John H. BALSEWICZ, Petitioner-Appellant, v. Phillip A. KINGSTON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1029

425 F.3d 1029

John H. BALSEWICZ, Petitioner-Appellant, v. Phillip A. KINGSTON, Warden, Respondent-Appellee.

No. 04-2629.

United States Court of Appeals, Seventh Circuit.

Argued September 7, 2005.

Decided October 6, 2005.

W.C. Turner Herbert (argued), Mayer, Brown, Rowe & Maw, Charlotte, NC, for Petitioner-Appellant.

Daniel J. O'Brien (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before BAUER, POSNER, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

John Balsewicz was convicted in May 1991 of homicide and robbery. He unsuccessfully appealed his conviction and pursued various state post-conviction challenges before filing a petition for a writ of habeas corpus on October 20, 2003. The respondent moved to dismiss the petition as untimely and procedurally barred. The district court granted the motion and dismissed the petition as untimely. We affirm.

I. Background

In the early morning of August 24, 1990, witnesses saw Balsewicz and another man, Garceia Coleman, chasing the victim, Richard Terry. Terry escaped his pursuers several times, but after each escape they caught and beat him again. The final time the two men caught Terry, they kicked him repeatedly and beat him with a door frame found in the alley. Witnesses who attempted to intervene were threatened. One witness testified that Coleman removed Terry's wallet from his back pocket. Terry died as a result of the beatings. In May 1991, a jury convicted Balsewicz of first-degree intentional homicide and robbery.

Balsewicz informed his attorney of his belief that he was mentally ill at the time of the crime. According to Balsewicz, this mental disease was manifested in various ways over the course of his life, including the following: (1) he has heard voices threatening to kill him; (2) he has suffered from hallucinations of snakes and spiders; (3) he set his own house on fire to avoid the envisioned spiders; (4) he severely beat a cat he believed to be inhabited by a demon; and (5) he killed the victim believing him to be a demon. No evidence of these phenomena was presented at the trial that resulted in Balsewicz's conviction.

The Milwaukee County Circuit Court imposed a life sentence for the homicide conviction and a consecutive ten-year sentence for the robbery conviction. On direct review, the Wisconsin Court of Appeals affirmed the conviction and issued a Remittitur on May 24, 1994. Balsewicz did not seek discretionary review of the Court of Appeals decision in the Wisconsin Supreme Court or seek certiorari in the United States Supreme Court.

On February 5, 1999, Balsewicz instituted post-conviction proceedings, asserting for the first time, claims of ineffective assistance of trial and appellate counsel. After the Circuit Court denied relief, the Court of Appeals reversed and remanded for a hearing to determine whether Balsewicz was competent at the time of trial and whether trial counsel was ineffective for failing to raise the issue.

On April 19, 2002, the Circuit Court conducted a hearing and ruled that Balsewicz was competent at the time of trial and that trial counsel provided him with effective assistance. The Wisconsin Court of Appeals affirmed this decision, and Balsewicz did not then properly appeal to the Wisconsin Supreme Court.

On October 20, 2003, Balsewicz filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. With the written consent of both parties, the case was reassigned to Magistrate Judge Goodstein, who granted the respondent Kingston's motion to dismiss the petition as untimely on April 14, 2004.

Balsewicz filed a request for a certificate of appealability, which was denied on May 24, 2004. He then applied to this Court for a certificate of appealability, which was granted on October 18, 2004.

II. Discussion

A. Standard of Review

We review the district court's decision to deny Balsewicz's habeas petition de novo. Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.1999). Because Balsewicz filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, its standard of review governs his claims. Under the AEDPA, habeas relief is only available if the petitioner demonstrates that the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

B. The AEDPA Statute of Limitations

The AEDPA provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). This one-year period runs from the latest of the following: (1) the date the judgment becomes final or the expiration of time to seek review; (2) the date that the impediment to filing created by state action in violation of the Constitution is removed; (3) the date that the constitutional right asserted was recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered by due diligence. 28 U.S.C. § 2244(d)(1). This one-year time limit will be tolled, however, during such time that the petitioner has state post-conviction or other collateral review with respect to the pertinent judgment pending in state court. 28 U.S.C. § 2244(d)(2).

Balsewicz's habeas petition was due one year from "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). On direct appeal, the Wisconsin Court of Appeals affirmed Balsewicz's conviction and issued a Remittitur to the Circuit Court on May 24, 1994. In Wisconsin, a direct challenge to a conviction becomes "final" the day the Remittitur issues. See Wis. Stat. § 809.26; State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis.2d 446, 593 N.W.2d 48, 51 (1999). Balsewicz sought neither discretionary review of the Court of Appeals decision by the Wisconsin Supreme Court nor certiorari review by the United States Supreme Court. As a result, his conviction became final on August 22, 1994, allowing for the ninety days in which Balsewicz could have applied for certiorari. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir.2002).

For prisoners whose convictions became final prior to the AEDPA's enactment on April 24, 1997, however, there was a one-year grace period in which to file. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Newell v. Hanks, 283 F.3d 827, 832 (7th Cir.2002). Balsewicz's conviction became final before the effective date of the AEDPA, so he had the benefit of the grace period and could have timely filed his habeas petition at any time until April 24, 1997. He did not, however, file his habeas petition until October 20, 2003, more than six years later. Also, from the date of the Remittitur, May 24, 1994, until the date that he filed his motion for post-conviction relief, February 5, 1999, Balsewicz did not pursue any challenge in state court that would have tolled the statute of limitations. Thus, his habeas petition was untimely.

Even accepting the fact that the petition was untimely, Balsewicz argues that his constitutional claims of ineffective assistance of counsel merit consideration because he is "actually innocent" due to a mental disease or defect he suffered at the time of the crime. He proposes a "miscarriage of justice" exception to § 2244, similar to the "miscarriage of justice" exception found elsewhere in habeas jurisprudence that would allow him to assert this claim of "actual innocence." See Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir.2002) (discussing the miscarriage of justice exception that applies where a petitioner procedurally defaulted his federal claims in state court). As Balsewicz concedes, the AEDPA does not reference an exception to the limitations period predicated on a petitioner's actual innocence for an initial habeas petition, see 28 U.S.C. § 2244(d), although the statute provides just such an exception for successive habeas petitions. See id. § 2244(b)(2).

Neither the Supreme Court nor this Court has recognized a freestanding actual innocence exception to § 2244 that would allow a petitioner to overcome a failure to file the petition in a timely manner. Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir.2004). The courts that have acknowledged that the exception might be warranted under appropriate circumstances have declined to resolve the issue "unless the petitioner was able to demonstrate that he was actually innocent." Souter v. Jones, 395 F.3d 577, 589 (6th Cir.2005); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir.2000); Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1218 (11th Cir.2000).

In order to demonstrate actual innocence in a collateral proceeding, a petitioner must present "new reliable evidence that was not presented at trial" and "show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 299, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In his briefs and affidavits, Balsewicz has presented evidence not introduced at trial to the effect that over the course of his life, he has heard voices threatening to kill him, suffered from hallucinations in which he saw snakes and spiders, set his own house on fire to avoid those spiders, severely beaten a cat he believed to be inhabited by a demon, and killed the victim believing him to be a demon. Taken...