Johnson v. McBride

• Decision Date: 20 August 2004
• Docket Number: No. 04-1354.,04-1354.
• Parties: Gregory Scott JOHNSON, Petitioner-Appellant, v. Daniel McBRIDE, Superintendent, Maximum Control Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

381 F.3d 587

Gregory Scott JOHNSON, Petitioner-Appellant, v. Daniel McBRIDE, Superintendent, Maximum Control Facility, Respondent-Appellee.

No. 04-1354.

United States Court of Appeals, Seventh Circuit.

Argued August 10, 2004.

Decided August 20, 2004.

Rehearing Denied September 10, 2004.

Appeal from the United States District Court for the Southern District of Indiana, Richard L. Young, J.

Stanley L. Campbell, Swanson & Campbell, Michelle F. Kraus (argued), Fort Wayne, IN, for Petitioner-Appellant.

Stephen R. Creason (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

A jury convicted Gregory Scott Johnson of bludgeoning and kicking Ruby Hutslar to death during a burglary; it found that Johnson set fire to her home in an effort to conceal his crimes. The jurors found aggravating circumstances and no mitigating circumstances; they recommended that Johnson be sentenced to death. The trial judge agreed and imposed that penalty. The Supreme Court of Indiana affirmed on direct appeal, 584 N.E.2d 1092 (Ind.1992), and rejected Johnson's collateral attack. 693 N.E.2d 941 (Ind.1998). That decision became final on June 26, 1998, so Johnson had until June 28, 1999, to seek federal collateral review. 28 U.S.C. § 2244(d)(1). (June 26, 1999, the end of the statutory year, was a Saturday; the deadline therefore rolled forward to the following Monday.) Johnson's lawyer waited until June 25 to mail the petition to the district court, which received and filed it on June 29. Eventually the judge dismissed the petition as untimely.

Section 2244(d)(1)(A) provides that the petitioner has a 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"; this language sets the outer limit at June 28. Johnson contends that we should use § 2244(d)(1)(D) instead; this subsection starts the period on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." See Owens v. Boyd, 235 F.3d 356 (7th Cir.2000). The "claim" presented in this federal collateral attack is that Indiana violated the due process clause of the fourteenth amendment by withholding evidence that Paul Decker participated in the offense, something that (if true) might have enabled Johnson to reduce the degree of his own culpability. This is not a newly discovered claim; it is the same claim presented in state court. (On the definition of a "claim," see Brannigan v. United States, 249 F.3d 584 (7th Cir.2001).) Indiana's judiciary deemed it to be a bad one because (a) Johnson did not contend in his confessions or at trial that Decker played any role in the offense; (b) even after trial no evidence has emerged that Decker participated. What Johnson now contends is that the police must have suspected Decker, or they would not have sought a judicial order to obtain hair samples that they compared with hairs found at the crime scene. According to Johnson's current lawyers, the fact that the application for this order has never been disclosed to the defense means that the state is still hiding something and accordingly that the time to file a federal collateral attack has not started to run; that won't happen, Johnson maintains, until he receives the application and thus learns why the police told the court that they wanted to test Decker's hairs.

Speculation about what the police may have thought early in their investigation is some distance from knowledge that the state had, yet concealed, material exculpatory evidence. See United States v. Agurs, 427 U.S. 97, 108-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Mahaffey v. Schomig, 294 F.3d 907, 917 (7th Cir.2002). Testing showed that Decker was not the source of the hair. This record does not suggest anything other than a painstaking investigation by the police. Johnson would have known himself whether Decker participated; his role is not something that the prosecutor could have concealed. A desire to see more information in the hope that something will turn up differs from "the factual predicate of [a] claim or claims" for purposes of § 2244(d)(1)(D). The district judge therefore was right to use § 2244(d)(1)(A) to identify the last day Johnson had to get a collateral attack under way.

Counsel bungled the job in two ways. First, she waited until the final business day of the statutory year. Prudent lawyers act sooner, so that Murphy's Law will not undermine a client's interests. Second, counsel used first-class mail rather than Federal Express or another service that guarantees next-business-day delivery, or (better still) sending a messenger to the courthouse to file in person. Apparently counsel believed that use of the mails would add three days to the time available. Yet Fed.R.Civ.P. 6(e) applies only to documents "served" on opposing counsel, not to documents such as complaints or notices of appeal that must be filed in court. Nothing in the Rules Governing Section 2254 Cases in the United States District Courts treats any document as "filed" before actual receipt by the district court's clerk. Johnson concedes that his lawyer erred in supposing that use of the Postal Service adds to the time available for filing a petition. What he contended in the district court, and repeats here, is that lateness should be excused because delay was counsel's fault.

Johnson calls the argument one for "equitable tolling," which excuses delay when "despite all due diligence [the litigant] is unable to obtain vital information bearing on the existence of his claim." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990), relying on Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946). Section 2244(d)(1)(D) codifies that doctrine, which as we have already held does not assist Johnson. Other events might justify delay, see Taliani v. Chrans, 189 F.3d 597 (7th Cir.1999), but only if they (a) are unrelated to the tolling criteria built into § 2244, and (b) show interference with a prisoner's ability to commence a collateral attack. See Brooks v. Walls, 279 F.3d 518, 525 (7th Cir.), rehearing denied, 301 F.3d 839 (2002). No one interfered with Johnson's ability to pursue collateral relief in a timely fashion. He wants us to treat his own lawyer as the source of interference, but lawyers are agents. Their acts (good and bad alike) are attributed to the clients they represent. Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 396-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Societé Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). The sixth amendment creates an exception to this principle for criminal prosecutions. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Once trial and direct appeals have run their course, however, neither the sixth amendment nor federal law guarantees effective assistance of counsel for collateral proceedings, not even in a capital case. See Coleman v. Thompson, 501 U.S. 722, 752-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); 28 U.S.C. § 2254(i). So it is as if Johnson himself had made the decisions that led to the delay.

Modrowski v. Mote, 322 F.3d 965 (7th Cir.2003), illustrates the point. Counsel filed a collateral attack one day late, and the prisoner insisted (just as Johnson does) that counsel's shortcomings should be treated as an excuse. Modrowski contended that his (former) lawyer experienced "a series of physical and mental ailments [that] prevented him from working on the petition and filing it on time." 322 F.3d at 966. We replied that

attorney incapacity is equivalent to attorney negligence for equitable tolling purposes. We will not...