Ray v. Clements

Citation700 F.3d 993
Decision Date19 November 2012
Docket NumberNo. 11–3228.,11–3228.
PartiesElliot D. RAY, Petitioner–Appellant, v. Marc CLEMENTS, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)


Jeetander T. Dulani (argued), Attorney, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, for PetitionerAppellant.

Katherine D. Lloyd, Marguerite M. Moeller (argued), Attorneys, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI for RespondentAppellee.

Before BAUER, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

In Elliot Don Ray's first federal habeas appeal we found that his constitutional rights were violated when the state introduced out-of-court statements made by individuals who did not testify at his murder trial. But we remanded to give the state the opportunity to assert a defense that Ray's state post-conviction motion was untimely. Ray v. Boatwright (Ray I), 592 F.3d 793, 798–99 (7th Cir.), as amended (Apr. 1, 2010). On remand, and after an evidentiary hearing, the district court placed the burden of proving timeliness on Ray, finding that he did not timely give his state post-conviction motion to a prison official for mailing, and dismissed the petition.

On appeal, Ray argues that the district court erred by placing the burden of proof on him, by not requiring the state to put forth an affirmative case of untimeliness, and by not applying the mailbox rule, which supported his position that his state post-conviction motion had been “properly filed” for the purpose of tolling AEDPA's limitations period. The state asserts that the mailbox rule does not apply because the state procedural rule under which Ray challenged his conviction does not have a timeliness requirement, and even if the mailbox rule does apply, the petitioner—not the state—bears the burden of proof, and that Ray did not carry his burden. We disagree and adopt the rule set forth by the majority of our sister circuits that the prisoner mailbox rule governs whether a state post-conviction document is “properly filed” under the AEDPA limitations period unless the state has clearly rejected it. Because Wisconsin has not clearly rejected it, the mailbox rule applies in this case.

Having so found, we address the second issue, which is who has the burden of proof. Where a pro se prisoner's filing is not received by the state court, the habeas petitioner must produce some evidence to support his sworn statement of timeliness, and if this showing is made, the burden shifts to the state to prove untimeliness. Applying these rules to this case, we find that the state failed to present competent evidence contradicting Ray's testimony and documents showing that he timely gave his state post-conviction motion to a prison official for mailing. The district court's finding of untimeliness was clearly erroneous because it ignored this lack of evidence and was based on nothing more than conjecture and speculative doubt, allowing the state's conclusory arguments to carry the day. We therefore reverse and remand with instructions to grant Ray's habeas petition unless the state elects to retry him within 120 days.


As we detailed more thoroughly in our previous opinion, Ray was convicted in Wisconsin on state counts of reckless homicide, party to a crime, and recklessly endangering the safety of another. Ray I, 592 F.3d at 794–96. His conviction resulted from a retaliatory shooting on 29th Street in Milwaukee, Wisconsin that left an eleven-year-old girl dead and two other people injured. At Ray's criminal trial, the state called Detective Daniel Phillips to describe a signed statement that Ray gave during his interview with police. The detective primarily read from Ray's statement. But he also recounted his own out-of-court statements informing Ray that two co-actors had implicated Ray in the shootings. Detective Phillips testified:

Ray was then confronted with numerous statements made by co-actors that they were present [at the] shooting on 29th Street and so was Ray.

Ray then stated “those stupid niggers shouldn't be talking and they can't talk for me.”

When confronted with statements by [Miriam Myles] that Ray was shooting a nine-millimeter on 29th Street [and] in a statement by Sylvester Townsend ... that Ray had a .45–caliber pistol[,] Ray then said “tell me which gun killed the girl and I'll tell you everything.”

Neither Miriam Myles nor Sylvester Townsend testified during Ray's trial. But defense counsel did not object to this incredibly damaging testimony. After his conviction, Ray raised five issues on direct appeal, including a claim that Detective Phillips's testimony violated his right to be confronted with the witnesses against him. The state appellate court ignored this claim, decided that Detective Phillips's testimony was not hearsay because it was not offered to prove the truth of the matter asserted, and affirmed Ray's conviction. The Supreme Court of Wisconsin denied Ray's petition for review on June 12, 2003.

Ray then sought state post-conviction relief under Wisconsin Statute section 974.06. That statute provides: “After the time for appeal or postconviction remedy ... has expired, a prisoner in custody ... claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Wis. Stat. § 974.06(1). Importantly, a section 974.06 motion for relief “is part of the original criminal action, is not a separate proceeding and may be made at any time.” Id. § 974.06(2). Ray's request for relief under section 974.06 was eventually denied on October 16, 2006.

Ray filed two separate pro se petitions for writ of habeas corpus in the federal district court on February 28, 2007. The district court summarily dismissed Ray's petitions, exercising its authority under Rule 4 of the Rules Governing Section 2254 Cases,1 finding that Ray did not set forth a cognizable constitutional or federal law claim. But the court granted Ray's request for a certificate of appealability to resolve Ray's confrontation clause claim. On appeal, we held that “the evidence presented by the prosecution delivered to the jury statements by named co-actors, not available for cross-examination, accusing Ray of the very crimes with which he stood charged” and “the evidence was a clear violation of Ray's constitutional right of confrontation.” Ray I, 592 F.3d at 795–96. The state petitioned for rehearing en banc, raising a timeliness defense. We denied the petition, but on April 1, 2010 we issued an amended opinion remanding this case to the district court “so that the government may have an opportunity to develop the record on this issue” because the record contained “no evidence ... to support the government's assertion” of untimeliness. Id. at 799.

On remand, the district court held a status conference to decide how to proceed. The state did not request additional discovery or alert the district court of any difficulties it had experienced in obtaining relevant evidence. The state filed a motion to dismiss Ray's petition as untimely. Ray countered with a motion for summary judgment. After reviewing the parties' briefs, the district court denied both motions, scheduled an evidentiary hearing, and ordered Ray to testify in support of his claim that “the mailbox rule exception to the statute of limitations defense applies.” The court also ruled that Ray bore the burden of proving that his petition was timely.

The record before the district court, as it existed prior to the evidentiary hearing, included Ray's sworn affidavit detailing his claim that on April 27, 2004 he gave his section 974.06 motion to Ms. Tamara Smith, a Diamondback Correctional Facility social worker. Ray averred that he gave Ms. Smith the motion, with prepaid postage, for mailing to the Wisconsin Circuit Court of Milwaukee County. He maintained that Ms. Smith, in turn, gave him two receipts: a “Certificate of Service by Mail” receipt, which he signed, and a “CCA Privileged Correspondence Receipt,” 2 which she signed. Ray's affidavit also described his efforts to obtain information from Ms. Smith regarding the processing of his mail. On June 1, 2004 and September 9, 2004, Ray wrote letters to Ms. Smith asking her to verify that she sent his section 974.06 motion to the court. He then wrote her a third letter on June 15, 2005, requesting the same information. Finally, according to Ray, after not hearing back from Ms. Smith, he sent a notarized letter to the Milwaukee clerk of court on October 4, 2006 to determine the status of his motion. The court informed Ray that it had no record of his post-conviction motion ever being filed, so he immediately submitted a supplemental pro se motion, which the court denied on October 16, 2006. The pre-evidentiary-hearing record contained no evidence contradicting Ray's sworn testimony.

On July 28, 2011, the district court held an evidentiary hearing. Before beginning, the court clarified that even though the general rule is that the party asserting an affirmative defense, like untimeliness, bears the burden of proving the defense, Ray had invoked an exception to the defense so the burden rested with him to prove that the exception applied. The court noted that Ray “has made the required presentation of sufficient evidence ... to conclude that he has raised [the mailbox rule] issue.... [T]he state disputed it, not based on specific facts but inferentially, they argued that the evidence he has supporting his position is not credible. I have concluded that we need a factual hearing on that.” The hearing, according to the court, was conducted to “assess [Ray's] credibility.”

The evidentiary hearing began with testimony from Corrections Officer John T. Nedbal. He worked in the library of New Lisbon prison, where Ray was incarcerated when he allegedly lost the signed...

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