Socha v. Boughton

• Decision Date: 14 August 2014
• Docket Number: No. 12–1598.,12–1598.
• Citation: 763 F.3d 674
• Parties: Thomas R. SOCHA, Petitioner–Appellant, v. Gary A. BOUGHTON, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

763 F.3d 674

Thomas R. SOCHA, Petitioner–Appellant,

v.Gary A. BOUGHTON, Warden, Respondent–Appellee.

No. 12–1598.

United States Court of Appeals,Seventh Circuit.

Argued April 7, 2014.

Decided Aug. 14, 2014.

Thomas L. Shriner, Jr., Rachel M. Blise, Foley & Lardner LLP, Milwaukee, WI, for Petitioner–Appellant.

Daniel J. O'Brien, Assistant Attorney General, Office of the Attorney General, Madison, WI, for Respondent–Appellee.

Before WOOD, Chief Judge, and KANNE and SYKES, Circuit Judges.

WOOD, Chief Judge.

This is the second time we have been asked to consider Thomas Socha's struggle to have his federal habeas corpus petition heard on the merits. When we first considered Socha's case in 2010, we held that the district court was not compelled to dismiss his petition for missing the deadline established by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Socha v. Pollard, 621 F.3d 667 (7th Cir.2010) ( Socha I ). We sent the case back to the district court with instructions to evaluate several theories under which Socha's action would be timely: whether the motion to extend time that Socha filed might serve as the petition itself; whether the deadline should have been equitably tolled in light of the obstacles to Socha's filing and the district court's initial grant of his motion to extend the deadline; or whether the state should be equitably estopped from asserting a timeliness defense.

The district court rejected each of these possibilities on remand. It reasoned that Socha's motion could not be construed as a petition for a writ of habeas corpus because it did not offer any grounds for relief from his conviction; it denied equitable tolling based on a finding that Socha had not been diligent in pursuing his rights; and it found equitable estoppel unwarranted because the state had not placed intentional barriers in the way of Socha's petition.

We again granted Socha's request for a certificate of appealability. Although we see no reversible error in the court's first and third rulings, we conclude that it abused its discretion when it rejected Socha's equitable tolling argument. We do not make such a decision lightly, but given the unusual obstacles that confronted Socha in filing his petition, his repeated attempts to obtain his record and comply with the deadline, and the district court's initial grant of a motion to extend the deadline, we are convinced that equity requires his failure to file a completed petition before the deadline to be forgiven. Accordingly, we reverse the judgment of the district court and remand Socha's petition for further proceedings consistent with this opinion.

I

As we explained in our earlier opinion, Socha was convicted of first-degree intentional homicide after a bench trial in 2002. See Socha I, 621 F.3d at 668. He simultaneously proceeded with his direct appeal and filed for state postconviction relief, as is permitted under Wisconsin law. The Wisconsin Court of Appeals affirmed his conviction, and the Supreme Court of Wisconsin denied further review on April 17, 2007.

Socha chose not to pursue a petition for a writ of certiorari in the U.S. Supreme Court from the state supreme court's decision. Instead, he turned immediately to a petition under 28 U.S.C. § 2254 in the federal district court. Under AEDPA, he had one year from the date his conviction became final to file his federal habeas corpus petition. 28 U.S.C. § 2244(d)(1)(A). The point from which that one year runs, however, varies. For a state prisoner who does not seek collateral relief, it runs from the date when the judgment becomes final by the expiration of the time for seeking direct review. See 28 U.S.C. § 2244(d)(1) (“The limitation period shall run from the latest of....”) As we discuss in more detail below, that time includes the period during which the state prisoner is seeking a writ of certiorari in the U.S. Supreme Court (or the disposition of any petition that actually is filed). AEDPA further suspends the running of that one year for state prisoners who seek state collateral relief. See 28 U.S.C. § 2244(d)(2). That suspension lasts, however, only for the period when the state courts are considering the case; it does not include the time during which certiorari may be sought in the U.S. Supreme Court (or, if sought, ruled upon). See Lawrence v. Florida, 549 U.S. 327, 332, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). The latter rule is different for federal prisoners who seek collateral relief. See Clay v. United States, 537 U.S. 522, 525, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003).

Because of a quirk of Wisconsin procedure, the Wisconsin courts may conduct direct review of a conviction simultaneously with a post-conviction petition. That is what happened in Socha's case. But the existence of the postconviction aspect of the case does nothing to detract from the rule found in section 2244(d)(1), under which the limitation period applicable to a petitioner such as Socha does not begin to run until the date his judgment becomes final by the expiration of time for seeking direct review (including certiorari ). See 28 U.S.C. § 2244(d)(1) (“The limitation period shall run from the latest of....”); Lawrence, 549 U.S. at 333, 127 S.Ct. 1079 (quoting Clay, 537 U.S. at 528 n. 3, 123 S.Ct. 1072) (stating that the direct review to which section 2244(d)(1) refers includes the time for seeking certiorari ).

In Socha's case, the only point to make about section 2244(d)(2) is that it never came into play. It could not extend the date on which his time to file began to run beyond what section 2244(d)(1) provided—90 days after the Wisconsin Supreme Court denied review—because it did not follow the direct-review phase of the case. But the fact that it was proceeding simultaneously with direct review does not mean that it somehow deleted time to which Socha was otherwise entitled under section 2244(d)(1). Under that provision, Socha's one-year period started on the date on which he could no longer seek certiorari on his direct appeal: July 16, 2007.

Socha's efforts to file a petition within one year of that date were hampered at every turn, through no fault of his own. Many of the problems he encountered stemmed from his inability for more than a year despite persistent requests to obtain his case file from the public defender who had represented him at trial, Joseph Sommers. The lack of access to his file seriously impeded his ability to raise the two arguments he wished to press: ineffective assistance of counsel and withholding of exculpatory evidence. Effectiveness of counsel is something that must be evaluated on the basis of the record as a whole. See Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (prejudice aspect of ineffectiveness of counsel evaluated on record as a whole); Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hardamon v. United States, 319 F.3d 943, 948 (7th Cir.2003). A claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), similarly requires an evaluation of the record as a whole. See, e.g., Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (“[T]he three components or essential elements of a Brady prosecutorial misconduct claim [are] ... [t]he evidence at issue must be favorable to the accused ...; that evidence must have been suppressed by the State ...; and prejudice must have ensued.”). Prejudice exists if the suppressed evidence was material, id., and materiality requires an assessment of the entire record, id. at 698, 124 S.Ct. 1256. All of this is to say that without his file, Socha had no hope of raising a plausible argument on either ground.

Socha first wrote to Sommers on May 4, 2007, to ask that his case file be sent to his sister, Barbara Putnam. (By then, Sommers was no longer representing him.) Socha wrote again withdrawing that request on July 3, explaining that he was seeking representation from the Wisconsin Innocence Project. He anticipated that it would be easiest for the Project to pick up the record directly from Sommers's office, should it choose to represent him. On July 9, he wrote to the Innocence Project and asked it to take up his case.

After hearing nothing from either Sommers or the Innocence Project for two months, Socha wrote again to Sommers on September 16 and reinstated his earlier request that Sommers send his case file to Putnam. Sommers never acknowledged the letter. Socha wrote again on February 19, 2008, with another plea for the file. Perhaps sensing that time was running out, Socha sent off another letter to Sommers on March 8, this time directing Sommers to send his case file directly to him at the Green Bay Correctional Institution, where he was serving his sentence. The silence continued.

Fed up, Socha next wrote directly to Kenneth Lund, the Attorney Manager at the Office of the State Public Defender; Lund wrote a letter to Sommers on April 11 reminding him that Socha was entitled to his case file. This intervention spurred Sommers to take a rather bizarre action: he sent a letter to Putnam on April 29 indicating that he would make the file available to her, but only at his home rather than his office, “to make things more convenient.” He did so in the face of Socha's explicit directive to send the file directly to him in the prison rather than to Putnam, and despite the fact that Putnam had not been involved in any of the correspondence between Socha, Sommers, and Lund. Putnam did not respond to Sommers's letter.

With his file still held hostage at his former attorney's office, Socha began to look for alternative ways to complete a habeas corpus petition. He found another inmate, Ronald Wagner, who was willing to help. Wagner wrote to the clerk of the Forest County Circuit Court on April 25 and requested court files from both Socha's case and those of his co-defendants. He also requested transcripts in June; they...