Kunta Gray v. Dushan Zatecky , 865 F.3d 909 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2482
KUNTA GRAY,
Petitioner-Appellant,
v.
DUSHAN ZATECKY, Superintendent, Pendleton
Correctional Facility,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-812-SEB-DML — Sarah Evans Barker, Judge.
____________________
ARGUED JANUARY 10, 2017 — DECIDED AUGUST 2, 2017
____________________
Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. During a drug deal that went bad,
shots were fired and Gregory Jones was fatally wounded. The
police arrested Kunta Gray for the crime, and a Marion
County (Indiana) jury later convicted him, twice, for the mur-
der and associated offenses. The Indiana courts ultimately up-
held the convictions, and so Gray filed this action in federal
2 No. 15-2482
court, seeking a writ of habeas corpus on several grounds. See
28 U.S.C. § 2254. Before we can reach those arguments, how-
ever, we must assure ourselves that his petition was timely. It
is only if Gray qualifies for equitable tolling, because he filed
after the one-year time limit for such petitions. 28 U.S.C.
§ 2244(d). We agree with the district court that he failed to
make the necessary showing, and so we affirm its judgment.
I
On the morning of November 16, 2000, Gray stopped by
Jones’s house in Indianapolis and made a deal to buy eight
pounds of marijuana for $6,500—Gray was to bring the
money by later that day, and the men would make the ex-
change. Gray duly returned that afternoon, accompanied by
another man. Jones’s friend Tracy Avant was in the living
room at the time and observed Jones, Gray, and the other man
retire to the rear of the house. Shortly thereafter, the third man
returned, hit Avant with a revolver, threw him to the ground,
and robbed him. Avant heard Jones say “don’t do this” in the
back of the house, and then he heard five to ten gunshots.
Gray ran back through the living room carrying a gun and a
trash bag, firing into the rear of the house as he fled. Emer-
gency responders took Jones to the hospital, but he died there
12 days later from multiple gunshot wounds to his abdomen.
A Marion County jury found Gray guilty in March 2002 of
murder, robbery, and a number of related crimes, but he con-
vinced the state courts to overturn those convictions on post-
conviction review. The state held a second trial in August
2007. It ended on the same note: the jury convicted him of fel-
ony murder, murder, robbery, attempted murder, and carry-
ing a handgun without a license, and the court sentenced him
to 85 years’ imprisonment.
No. 15-2482 3
The retrial was a rocky affair. The prosecution used four
of its eight peremptory challenges on black jurors. After trial,
it emerged that a selected juror had been less than forthcom-
ing on her juror questionnaire. These problems take on added
significance since the prosecution’s case was not especially
strong. It hinged on testimony from Avant and Andrew
White, both of whom maintained that Gray confessed while
they shared a holding cell. Neither was a dream witness.
Avant initially asserted that he was not present for the rob-
bery. He struggled to identify the assailants, and he may have
been high at the time of the crime. White’s testimony was also
problematic, partly because White was trying to get a lighter
sentence. Worse, Jones had been White’s friend, and Gray had
robbed White in the past. Normally, Gray’s earlier crime
would have been inadmissible, but defense counsel intro-
duced it to undermine White’s credibility on the theory that
White invented Gray’s confession out of revenge. Unfortu-
nately, the earlier robbery closely resembled the one against
Jones, and so the jury learned that Gray had previously com-
mitted a crime nearly the same as the one of which he stood
accused. Even so, the jury initially deadlocked. After receiv-
ing further instructions from the court, however, the jury no-
tified the court that the hold-out juror had suddenly changed
his or her vote. The foreperson commented to the court that
“I have trouble submitting the change in good conscience,”
but the jury overcame those doubts and convicted Gray on all
charges.
Gray’s appeals proved unsuccessful, and his conviction
became final on January 2, 2008. That started the one-year pe-
riod for postconviction actions imposed by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C.
§ 2244(d)(1). Gray took no action until July 29, 2008 (208 days
4 No. 15-2482
later), when he filed a petition for postconviction relief in state
court. This stopped the AEDPA clock until Indiana’s denial of
postconviction relief became final on August 8, 2012. See
28 U.S.C. § 2244(d)(2). On that date, Gray had 156 days left—
until January 11, 2013—to file his federal habeas corpus peti-
tion. He did not submit it until April 29, 2013, 108 days after
the calendar hit zero.
That left equitable tolling as his only hope, but the district
court found him ineligible for that extraordinary measure and
dismissed his petition without reaching the merits. We
granted a certificate of appealability, requesting briefing on
four issues: equitable tolling, ineffective assistance of counsel,
whether striking the black jurors violated Batson v. Kentucky,
476 U.S. 79 (1986), and the possibility that Gray’s due process
rights were violated by the inaccurate questionnaire answers.
II
Because the rest of Gray’s appeal depends on our conclu-
sion with respect to equitable tolling, we begin (and end)
there. AEDPA imposes a strict one-year time limit for request-
ing a writ of habeas corpus. That period runs from the latest
of four dates, which can interact with one another, depending
on the appeals and state collateral relief the applicant seeks.
Here, we begin with the date on which Gray’s judgment be-
came final. See 28 U.S.C. § 2244(d)(1). That started the clock,
but 208 days later he sought collateral relief from Indiana’s
court. Under the statute, the time spent while the collateral
proceedings were pending did not count toward the one-year
limitations period. 28 U.S.C. § 2244(d)(2). In other words, the
clock was stopped (or the statute was “tolled,” as courts like
to say) during the time when those proceedings were pend-
ing. The countdown to one year resumed on August 8, 2012,
No. 15-2482 5
when his state post-conviction proceedings came to an end
and he still had 156 days—until January 11, 2013—during
which he could have filed a timely federal petition. But he did
not file anything until 108 days past that deadline. The Su-
preme Court has held that there is a narrow safety valve for
people in Gray’s position, in the form of equitable tolling—
essentially, a brief extension of time during which a late filing
will be accepted. Holland v. Florida, 560 U.S. 631 (2010). Unless
Gray qualifies for that, he cannot pursue his federal petition
for a writ of habeas corpus.
Equitable tolling is available when an applicant shows
“(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and
prevented timely filing.” Id. at 649 (internal quotation marks
omitted). The statute requires “reasonable diligence,” not
“maximum feasible diligence.” Id. at 653 (citations omitted).
The district court must evaluate the circumstances holistically,
considering “the entire hand that the petitioner was dealt” ra-
ther than taking each fact in isolation. Socha v. Boughton,
763 F.3d 674, 686 (7th Cir. 2014). Equitable tolling is “rare” but
it does not “exist[] in name only.” Id. at 684. It is instead a
“highly fact-dependent area in which courts are expected to
employ flexible standards on a case-by-case basis.” Id. (inter-
nal quotation marks and citation omitted). Appellate review
reflects this flexibility; we may reverse only if the district court
abuses its discretion. See id. at 678.
This is a demanding standard, and we cannot say that the
district court strayed out of bounds in its determination that
Gray has not met it. His main argument (really his only one)
is that this case is like Socha, which found that the challenges
faced by the eponymous petitioner cleared the Holland bar.
6 No. 15-2482
There are certainly similarities between Socha and Gray’s
case—both defendants were indigent, both proceeded pro se
for a long time, and neither had any particular legal experi-
ence. But that describes most habeas corpus petitioners and
thus by definition is not “extraordinary.” A more relevant
similarity, though regrettably also not an unusual one, is that
both men had limited access to prison legal resources. Socha
was held in administrative segregation, which limited his li-
brary access to 80 minutes a week—and the “library” con-
sisted of “two computers with spotty internet access” that
were “shared by 250 inmates.” Id. at 680. Gray, for his part,
alleges that his access to the prison’s law library was con-
strained “due to various institutional lockdowns ranging
from (2) weeks up to (10) months, with (2) lockdowns in the
past (3) months lasting a total of (3) weeks.” Most important,
Gray and Socha both experienced long delays in obtaining the
files they needed to prepare their petitions. Socha spent the
better part of a year begging trial counsel for his file, while
Gray waited 113 days for the Indiana Court of Appeals to give
him his case record.
Indiana tries to trivialize the 113-day delay, but we do not
make light of it. At oral argument the state suggested that so
long as Gray received the documents before the one-year
deadline, any delay in filing was entirely his responsibility.
That cannot be right. This is a holistic inquiry, and the length
of time remaining for the applicant to file is quite pertinent:
several months will be one thing; two days quite another.
Moreover, we reject the notion that a state’s procrastination
can torpedo an indigent prisoner’s case. If this sort of delay
becomes routine, prisoners may begin filing prophylactic ha-
beas corpus petitions and immediately requesting a stay
pending the state’s provision of the required records. Indiana
No. 15-2482 7
professed indifference to this outcome at oral argument; it
may wish to reconsider. Such a system would clutter the
courts, as well as state legal offices, with petitions that the full
record would show should never have been filed. We trust
that this was just something said in the heat of argument.
That said, there are important differences between Gray’s
case and Socha’s that support a different outcome. Socha’s
public defender refused to hand over his records for almost a
year despite a stream of requests; the defender’s superior ul-
timately had to step in and send the files himself. Id. at 679–
80. Here, it appears that Gray simply sent his request and
waited 113 days for Indiana to follow through. Granted, a
near-four month delay is a substantial obstacle. But it is less
daunting in duration and degree than the delay Socha faced.
At the time Gray’s petition for state postconviction relief be-
came final, he had another 156 days in which to file his federal
petition. Subtracting the 113 days it took Indiana to give him
the files he wanted, he still had 43 days to work with. Gray
argues that this overstates the time that was really (not theo-
retically) available to him, noting that “institutional lock-
downs” restricted his access to legal resources and hence his
ability to prepare his petition. Here again, the district court
reasonably could have found that he did not make as compel-
ling a showing as Socha, who was almost totally deprived of
meaningful library access because of his placement in admin-
istrative segregation.
By so holding, we do not mean to say that Socha establishes
the floor for a finding of extraordinary circumstances. On the
contrary, we stressed that equitable tolling is not “a chimera”
and that this is a “highly fact-dependent area.” Id. at 684 (in-
ternal citation omitted). There is no avoiding the careful look
8 No. 15-2482
at each applicant’s situation that this type of equitable stand-
ard calls for. Again bearing in mind the deferential standard
that applies to the district court’s assessment of the case, we
find nothing in Gray’s case that compels us to excuse him
from the one-year period of limitations.
We AFFIRM the judgment of the district court.