Johnson v. McCaughtry

• Decision Date: 07 September 2001
• Docket Number: RESPONDENT-APPELLEE,PETITIONER-APPELLANT,No. 00-2217,00-2217
• Citation: 265 F.3d 559
• Parties: (7th Cir. 2001) ERIC D. JOHNSON,, v. GARY R. MCCAUGHTRY, WARDEN,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 559

265 F.3d 559 (7th Cir. 2001)

ERIC D. JOHNSON, PETITIONER-APPELLANT, v. GARY R. MCCAUGHTRY, WARDEN, RESPONDENT-APPELLEE.

No. 00-2217

U.S. Court of Appeals, Seventh Circuit

Argued May 18, 2001

September 07, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99 C 162--Lynn Adelman, Judge. [Copyrighted Material Omitted] Before Easterbrook, Manion, and Evans, Circuit Judges.

Manion, Circuit Judge

Eric D. Johnson was convicted in Wisconsin state court of two counts of first-degree intentional homicide and sentenced to life imprisonment on both counts. After exhausting the appellate process and post-conviction review in state court, Johnson filed a petition for habeas corpus in federal court. The district court denied his petition, finding that it was barred by the one-year statute of limitations, and that equitable tolling did not apply. Johnson appeals, and we affirm.

I. Background

On the morning of September 1, 1992, while sitting in the back seat of a car, Eric Johnson shot to death George Cole and Torrance Jackson, who were seated in the front seat. A detective dispatched to the scene testified that Cole, sitting in the driver's seat, had a gunshot wound to the left side of his face and an exit wound on the right side of his head. Jackson, sitting in the passenger seat, had a gunshot wound to the back of his head, with a majority of his head missing. One of the police detectives testified that Johnson confessed to meeting with Cole and Jackson in order to sell Jackson a shotgun, going to a bank with them, getting into a disagreement with Jackson, shooting Jackson in the head and then shooting Cole in the head because Cole saw him shoot Jackson. At trial, Johnson testified in his own defense, blaming a fourth individual named Earl for the shootings. The jury apparently believed Johnson's confession because, on December 3, 1992, it found him guilty of two counts of first-degree intentional homicide while armed. On January 15, 1993, the trial judge sentenced Johnson to serve a life sentence on each count, to be served consecutively. On November 21, 1994, the Wisconsin Court of Appeals affirmed Johnson's conviction. Johnson then filed a petition for review with the Wisconsin Supreme Court, which was denied on February 21, 1995.

On June 27, 1996, Johnson filed his first petition for post-conviction relief in state trial court, arguing that he had received ineffective assistance of trial counsel, and that he had failed to raise that issue on direct appeal because his appellate counsel was ineffective.¹ On July 2, 1996, the trial court dismissed his petition based on State v. Knight, 484 N.W.2d 540 (Wis. 1992) (holding that in order to bring a claim of ineffective assistance of appellate counsel, defendant must file petition in appellate court), and directing him to file his petition in the state appellate court. Johnson had ninety days to appeal that decision, see Wis. Stat. sec. 808.04(1), but he did not. Instead, on October 17, 1996, as the trial court had directed, he filed his petition in the state appellate court. On October 23, 1996, the Wisconsin Court of Appeals, in State ex rel. Rothering v. McCaughtry, 556 N.W.2d 136 (Wis. Ct. App. 1996), mandated that habeas corpus petitions based on ineffective assistance of post-conviction (as distinguished from appellate) counsel be filed in a trial court. Relying on Rothering, on November 29, 1996, the Court of Appeals dismissed Johnson's petition and directed him to re-file his petition in the state trial court. Johnson had 30 days to appeal this decision to the Wisconsin Supreme Court, see Wis. Stat. sec. 809.62(1), but he did not do so. Instead, on January 15, 1997, Johnson filed his petition (for the third time) in the state trial court, which denied it on the merits on January 23, 1997. On March 10, 1997, Johnson appealed the trial court's decision, and on May 5, 1998, the Court of Appeals affirmed. On June 12, 1998, Johnson filed a petition for review with the Wisconsin Supreme Court which was denied on July 24, 1998. Then, on February 19, 1999, Johnson filed the present habeas petition, which the district court denied, finding that it was barred by the one-year statute of limitations and that equitable tolling did not apply. The district court denied Johnson's request for a certificate of appealability, which he renewed in this court, and which we granted on January 22, 2001.

II. Analysis

A. Statute of Limitations

The district court denied Johnson's petition, finding that it was barred by the one-year statute of limitations period applicable to a state prisoner seeking habeas corpus relief under 28 U.S.C. sec. 2254. See 28 U.S.C. sec. 2244(d). This one-year period commences on "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. sec. 2244(d)(1)(A). Thus, Johnson's state court conviction became final on February 21, 1995 (the date the Wisconsin Supreme Court denied direct review of his conviction). Where, as here, the petitioner's state court conviction became final prior to the statute's effective date, April 23, 1996, the one-year period begins on April 24, 1996. See Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir. 2000). Johnson did not file the present habeas petition until February 19, 1999, nearly three years after the one-year period began to run.

At first glance it appears that Johnson's claim is time-barred. But, under Section 2244(d)(2), the "time which a properly filed application for state post-conviction review or other collateral review . . . is pending" is excluded from the limitation period. A state post-conviction petition is "pending" between the date of one appellate court's decision and the petitioner's filing of a further appeal, thereby tolling the period of limitation. See Fernandez, 227 F.3d at 980 ("time following an appellate court's decision, and preceding a timely application for discretionary review [is] excluded from the calculation under sec. 2244(d)(2)."). Thus, all of the time between January 15, 1997, when Johnson filed his (third) petition, and July 24, 1998, when theWisconsin Supreme Court denied his request for review, is excludable.

However, on appeal, Johnson argues that all of the time to seek appellate review within the state system, even where he never filed for such review, should be excluded from the countable year. There are two crucial time periods at issue. First, Johnson seeks to exclude the 90-day period in which he could have appealed from the trial court's July 2, 1996 decision, although he did not do so, instead letting 107 days elapse until he re-filed his petition in the Court of Appeals. Second, Johnson seeks to exclude the 30 days he had to appeal from the November 29, 1996 Court of Appeals decision, even though he did not do so and instead let 47 days elapse until he re-filed his petition in the trial court.² In support of his position, Johnson points to several other circuits which have held that a collateral post-conviction action is "pending" in state court for the period during which further review could have been sought, even where such review is not actually sought.³

This court has yet to consider this precise issue. We have observed, however, that "it is sensible to say that a petition continues to be 'pending' during the period between one court's decision and a timely request for further review by a higher court (provided that such a request is filed)." Fernandez, 227 F.3d at 980. In Fernandez, we reserved the question "whether time provided for filing a petition or appeal to a higher court is treated as time during which an application is pending, if the time expires without a filing." Id. However, in Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000), we held that the one-year limitations period for filing a federal habeas petition was not tolled during time in which petitioner could have filed a petition for certiorari review of denial of state post-conviction relief in the United States Supreme Court. Surprisingly, the government did not try to persuade us to extend our holding in Gutierrez to the present facts. Even more surprising is the fact that the government confessed error in its response brief, stating that Johnson's habeas petition was timely filed, and requesting remand to address his ineffective assistance of counsel arguments. At oral argument, the government oscillated in its position, initially repeating its statement that the petition was timely filed, and then agreeing that it might not be timely filed.

Regardless of which position the government chooses to advocate, we will make an independent judicial assessment of whether the district court correctly dismissed Johnson's petition based on the statute of limitations. See Sibron v. New York, 392 U.S. 40, 58 (1968) ("[c]onfessions of error are, of course, entitled to and given great weight, but they do not 'relieve this Court of the performance of the judicial function.'") (quoting Young v. United States, 315 U.S. 257, 258 (1942)). We need not decide today whether to extend Gutierrez because we conclude that Johnson's first twopetitions were not "properly filed" as required under Section 2244(d)(2).

Under Section 2244(d)(2), we only exclude the "time which a properly filed application for state post-conviction review or other collateral review . . . is pending." An application is "properly filed" when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). Applic able laws and rules include "the court and office in which it must be lodged . . . ." Id. See also Tinker v. Hanks, 255 F.3d 444, 445 (7th Cir. 2001) (quoting same). We determine whether a petition is "properly filed" by looking at how the state courts treated it. See Freeman v. Page, 208 F.3d 572, 576 (7th Cir. 2000)...