Thomas Socha v. William Pollard ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1733
T HOMAS S OCHA,
Petitioner-Appellant,
v.
W ILLIAM P OLLARD ,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CV-00994—Rudolph T. Randa, Judge.
A RGUED JANUARY 15, 2010—D ECIDED S EPTEMBER 3, 2010
Before W OOD , E VANS, and SYKES, Circuit Judges.
W OOD , Circuit Judge. After the Supreme Court of Wis-
consin declined to review his conviction for first
degree homicide, Thomas Socha attempted to file a
petition for a writ of habeas corpus in federal court.
Seeking a lawyer, Socha tried first to enlist the help of
the Wisconsin Innocence Project. Though the Project
initially informed Socha that it would consider taking
his case, almost a year later it told Socha that it
2 No. 09-1733
could not offer any assistance. Left to his own devices,
Socha struggled to review the voluminous record in
his case and tried his best to master the complexities of
federal habeas corpus. This already-difficult task was
made harder by the fact that Socha was in the segrega-
tion unit; as a result, he had access to the law library
for only a few hours a month.
Having made little progress on his pro se petition
and mindful that the deadline for commencing his case
was fast approaching, Socha filed a motion on July 15,
2008, with the District Court for the Eastern District of
Wisconsin, requesting a 90-day extension of the one-
year limitations period set out in 28 U.S.C. § 2244(d). This
was before the deadline, but only by a single day. A
few months later, Judge J.P. Stadtmueller granted the
ex parte motion on the ground that Socha’s restricted
access to the library had created an impediment to
filing that was outside his control.
Socha filed his petition for habeas corpus within
the period specified in Judge Stadtmueller’s order, on
November 19, 2008. At that point, however, the case
was assigned to Judge Rudolph Randa, who dismissed
the petition as untimely. Judge Randa took the position
that Judge Stadtmueller’s order extending the limita-
tions period was an impermissible advisory opinion
and thus of no effect, because the court issued the
order before Socha had filed his petition. Judge Randa
also concluded that there was no evidence of extra-
ordinary circumstances that would warrant equitable
tolling of the limitations period.
No. 09-1733 3
We granted Socha’s request for a certificate of
appealability and now vacate the district court’s judg-
ment, based on our conclusion that Judge Randa
assumed too quickly that Socha’s petition was untimely.
We remand the case for further proceedings consistent
with this opinion.
I
On November 20, 2001, three men brutally murdered
Lance Leonard and buried him in a shallow grave near
the woods in Crandon, Wisconsin. Police traced the
crime back to the three killers and two others, Beth Mrazik
and Thomas Socha, who were not present that night.
Mrazik and two of the killers entered into plea agree-
ments and testified against Socha at his trial. Each of
them said that Socha played a part in planning Leonard’s
murder. Socha was anxious to get Leonard out of the
picture, they asserted, because he feared that Leonard
might implicate him in a fraudulent check scheme or
reveal that he had stolen $12,000 to $16,000 of his drug
supplier’s cocaine.
According to Mrazik, as the police drew closer to
cracking the case, Socha threatened that the Mafia
would go after her if he were connected to the murder
plot. When the police eventually did catch Socha, he
dug himself into an even deeper hole. He asked them
if the authorities had picked up Mrazik, since she knew
all about the murder. While he questioned why he was
being charged with homicide, he commented that he did
not have “any problem being charged with party to
a crime.”
4 No. 09-1733
After a bench trial, Socha was convicted of first-degree
intentional homicide. He appealed and, as permitted by
Wisconsin law, filed a motion at the same time re-
questing post-conviction relief. In these two filings, he
pressed a number of different theories, including insuf-
ficiency of the evidence, ineffective assistance of coun-
sel, and prosecutorial misconduct. The Wisconsin Court
of Appeals was unmoved by any of these points and
affirmed, and on April 17, 2007, the Supreme Court of
Wisconsin denied further review.
At this point, Socha elected not to file a petition for
certiorari with the Supreme Court of the United States,
and he also eschewed any further state-court remedies.
Instead, he turned his attention to federal habeas
corpus relief. As a state prisoner, Socha was allowed one
year from the date when his conviction became final to
file his federal habeas corpus petition. 28 U.S.C.
§ 2244(d)(1)(A). Once the 90-day deadline for applying
for certiorari passed, the time for seeking direct review
of Socha’s conviction came to a close and that one-year
period began to run. Id. In concrete terms, this meant
that Socha had until July 16, 2008, to file his petition.
Over the course of that year, Socha confronted a
number of obstacles that delayed his filing. For much of
the year, he thought that the Wisconsin Innocence
Project was going to represent him, but shortly before
the original deadline, it informed him that it could not
take the case. Socha’s efforts to proceed pro se while
he waited to hear from the Project were hindered by
his placement on April 15, 2008, in prison segregation.
No. 09-1733 5
Prisoners in segregation may visit the prison law library.
Access to the prison law library for inmates in segrega-
tion is limited to one 40-minute period once a week, or
an 80-minute period once every two weeks.
Apparently recognizing that the deadline for his
habeas petition was imminent, Socha initiated a miscel-
laneous action in the Eastern District of Wisconsin on
July 15, 2008, through a motion requesting a 90-day
extension of the due date for his petition. In the motion,
Socha contended that he needed additional time since
he was unfamiliar with federal habeas corpus law,
had restricted access to the law library, and had only
recently been told that he would be unable to get
assistance from the Wisconsin Innocence Project. The
court took no immediate action on the motion. Anxious
to learn about the status of his motion, Socha filed a
letter with the court requesting an update on August 11,
2008.
On September 19, 2008, Socha got his answer. Judge
Stadtmueller issued an order granting him an additional
90 days, which pushed back the deadline until Decem-
ber 19, 2008. The judge reasoned that the extension
was warranted because “Socha’s segregated status
limiting access to the prison law library appears to
have created an impediment to his ability to file his
petition on time. Socha’s limited access to the library
also appears to be beyond his control.”
As the 90-day period was drawing to a close, Socha
filed another motion requesting more time to collect
additional documents relating to his case. Judge William
6 No. 09-1733
Griesbach denied that motion on October 20, 2008.
This meant that Socha had to meet the deadline set by
Judge Stadtmueller; he did so, actually filing the petition
a month before it was due, on November 19, 2008. His
petition asserted, among other things, that the state
prosecutors had failed to disclose exculpatory evidence
and the representation afforded by his attorneys
was ineffective.
The district court, now acting through Judge Randa,
denied Socha’s petition on the ground that it had been
filed outside the year-long limitation period established
in § 2244(d). Despite the fact that Judge Stadtmueller
had ruled otherwise, Judge Randa held that none of
the hardships Socha had encountered in meeting the
deadline warranted equitable tolling. Moreover, he rea-
soned that Judge Stadtmueller’s order was not entitled
to any weight whatsoever because there was no case or
controversy pending in the federal court at the time
Socha filed his request for an extension. This meant,
Judge Randa thought, that Judge Stadtmueller lacked
jurisdiction over the case and the order was a nullity.
II
On appeal, Socha challenges the district court’s dis-
missal of his petition. He argues that the district court
erred when it chose to disregard Judge Stadtmueller’s
order. At the very least, the confusion created by this
order, Socha asserts, justifies equitable tolling of § 2244(d)’s
limitations period. While we typically review the denial
No. 09-1733 7
of a habeas corpus petition de novo, Smith v. McKee,
598 F.3d 374, 381-82 (7th Cir. 2010), a decision to deny
equitable tolling is reviewed for an abuse of discretion,
Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010).
The heart of this matter is whether Judge Randa cor-
rectly concluded that he was compelled to dismiss
Socha’s petition as untimely. This conclusion was
strongly influenced by his characterization of Socha’s
July 15 filing and Judge Stadtmueller’s disposition of that
motion. If that order represents a mere advisory opinion
not addressed to resolving a “case or controversy,” then
it marks an attempted exercise of judicial authority
beyond constitutional bounds. U.S. C ONST. art. III, § 2. Our
first order of business is therefore to ascertain whether
Socha’s pre-filing request for an extension of the limita-
tions period presented Judge Stadtmueller with a live
controversy. Siding with the Second Circuit, the district
court answered in the negative, explaining that any
order issued would be advisory since no habeas corpus
petition was pending at the time Judge Stadtmueller
ruled. United States v. Leo, 203 F.3d 162, 164 (2d Cir.
2000); see also Mulholland v. Hornbeck, 2008 WL 4554780,
at *3 (C.D. Cal. Oct. 8, 2008); Pounds v. Quarterman, 2008
WL 1776456, at *1 (N.D. Tex. Apr. 14, 2008).
Our case is different from Leo in precisely the respect
that concerned the Second Circuit: the existence, or lack
thereof, of a petition for a writ of habeas corpus before
the court. In Leo, no such petition had been filed; in con-
trast, by the time Socha’s case reached Judge Randa,
and certainly by now, that step has been taken. We
8 No. 09-1733
thus have no need to decide whether we might have
entertained an appeal had Socha filed one before he
presented his petition to the district court, and we are
free to reach the difficult characterization question that
this case presents. If this is properly viewed as an effort
by Judge Stadtmueller to extend a strict, statutorily man-
dated filing deadline, then we know from Bowles v.
Russell, 551 U.S. 205 (2007), that such an action lay
beyond the district court’s power. In Bowles, a district
court judge purported to extend a party’s time for
filing an appeal beyond the period authorized by 28
U.S.C. § 2107 and Federal Rule of Appellate Procedure
4(a)(1)(A). The party filed beyond the statutory period,
but within the time allowed by the district judge,
but the Supreme Court held that this was too late. That
statutory period was jurisdictional, it held, and the
district court had no power to override the statutory
limitations on appeal. Id. at 213. The Court also held that
it could not excuse Bowles’s late filing on the basis of
any “unique circumstances” doctrine that the lower
courts had been following, “because this Court has no
authority to create equitable exceptions to jurisdictional
requirements.” Id. at 214.
We might have followed this reasoning had the
Supreme Court not, after Bowles, addressed the limita-
tions period governing Socha’s case and held that it is
subject to equitable tolling. Holland v. Florida, 130 S. Ct.
2549 (2010). In sharp contrast to the statute at issue in
Bowles, which the Court described as “mandatory and
jurisdictional,” 551 U.S. at 209, the statute applicable to
Socha’s case, 28 U.S.C. § 2244(d), was described in
Holland as follows:
No. 09-1733 9
[T]he AEDPA statute of limitations defense is not
jurisdictional. It does not set forth an inflexible rule
requiring dismissal whenever its clock has run.
130 S. Ct. at 2560 (internal quotation marks and citations
omitted). Logically, this suggests that an order accepting
a filing after the limitations period has run is not
beyond the power of the district court. Instead, it is
effective if it can meet the standards for equitable
tolling that the Court described in Holland.
This makes sense when we step back and look at habeas
corpus more broadly. In a number of ways, the federal
petition represents one step in an integrated criminal
process. Repeatedly through 28 U.S.C. § 2254, Congress
has emphasized the close relation between the state
court proceedings that the petitioner wishes to chal-
lenge and the federal collateral proceeding. Thus, for
example, § 2254(b)(1)(A) requires a person in custody
“pursuant to the judgment of a State court” who is
seeking a writ of habeas corpus to “exhaust[] the
remedies available in the courts of the State.” An applica-
tion for a writ of habeas corpus “shall not be granted
with respect to any claim that was adjudicated on the
merits in State court proceedings” unless one of two
exceptions applies. Id. § 2254(d). The state court’s deter-
mination of factual issues “shall be presumed to be cor-
rect.” Id. § 2254(e)(1). And finally, 28 U.S.C. § 2244(d)(1)
provides that a one-year period of limitation “shall
apply to an application for a writ of habeas corpus” by
a state prisoner. That one-year period is typically mea-
sured from the date when the state courts are finally
10 No. 09-1733
finished with the case, although there are some ex-
ceptions to that rule that do not apply here. Computation
of the time within which a petition under § 2254 must
be filed follows the same pattern as it does for other
kinds of review proceedings. The date when the petition
is due is a function of when the earlier tribunal wrapped
up its work.
Although there were good reasons here for Judge
Randa to be concerned about the ex parte nature of
Socha’s July 15 motion, he put too much weight on the
fact that it was filed before Socha’s completed petition.
First, there is no absolute bar imposed by Article III on
judicial actions closely connected with a case or contro-
versy that has not yet been filed. Perhaps the best-
known example of a court’s taking action with respect to
a case that has yet to be filed comes in Federal Rule of
Civil Procedure 27, which permits depositions to per-
petuate testimony. The Wright, Miller & Marcus treatise
describes the nature of a Rule 27 action as follows:
A proceeding to perpetuate testimony is not based
on a pending action nor is it a separate civil action
in the usual sense. It has been described as “an ancil-
lary or auxiliary proceeding to prevent a failure
or delay of justice,” and there need not be an inde-
pendent basis of federal jurisdiction for the pro-
ceeding to perpetuate. It is enough to show that in
the contemplated action, for which the testimony is
being perpetuated, federal jurisdiction would exist
and thus it is a “matter that may be cognizable in
any court of the United States.”
No. 09-1733 11
8A C HARLES A LAN W RIGHT, A RTHUR R. M ILLER &
R ICHARD L. M ARCUS, F EDERAL P RACTICE AND P ROCEDURE
§ 2072 at 388 (3d ed. 2010) (citations omitted). Rule 27 pro-
ceedings are similar to actions under 28 U.S.C. § 1782,
which authorizes the federal courts to render assistance
to foreign tribunals, “including criminal investigations
conducted before formal accusation.” Id. § 1782(a). In
neither case does the court’s power to act depend on
the filing of a primary complaint. Rule 27 rests on
equitable principles, insofar as it is designed to prevent
a failure or delay of justice. De Wagenknecht v. Stinnes,
250 F.2d 414, 416 (D.C. Cir. 1957). Section 1782 recog-
nizes that courts may be called upon to take action to
assist another tribunal in moving forward with a case.
Second, it is possible to view a motion like Socha’s as
the actual petition for a writ of habeas corpus, filed in
an incomplete form but with a promise to furnish support-
ing documentation later. See, e.g., Smith v. Barry, 502 U.S.
244, 248-49 (1992) (treating appellate brief as notice of
appeal); Listenbee v. City of Milwaukee, 976 F.2d 348, 350-51
(7th Cir. 1992) (treating motion for extension of time as
notice of appeal). No one disputes the fact that his petition
would have been timely if July 15, 2008, was the date on
which it was effectively filed.
All of this shows that the district court erred by
focusing too closely on the fact that Socha had not
already filed something that he had labeled as his peti-
tion. Not only does the motion anticipate an imminent
action in which Socha and the state will be adverse, but
also the parties have opposing interests on the immediate
question, whether to toll the statute of limitations. As
12 No. 09-1733
Judge Stadtmueller’s order shows, the facts relating to
equitable tolling were before the court. Thus, Socha’s
ancillary proceeding satisfied the traditional standing
requirements of injury-in-fact, causation, and redressi-
bility. Elk Grove Unified School Dist. v. Newdow, 542 U.S.
1, 11-12 (2004).
The district court also should have considered whether
the state should be equitably estopped from invoking the
one-year limitations period under the circumstances
presented here. Socha informed the court on several
occasions that he was trying, or had tried, to file on time,
but he was hindered by the adverse party (the warden).
Even before the Supreme Court’s decision in Holland,
we had not closed the door on the possible applicability
of doctrines such as equitable tolling and equitable
estoppel. See, e.g., Tucker v. Kingston, 538 F.3d 732, 734
(7th Cir. 2008). In Holland, the Court confirmed that
equitable tolling is available for cases governed by
§ 2244(d)’s filing periods. 130 S. Ct. at 2562 (explaining
that a habeas corpus petitioner is “entitled to equitable
tolling only if he shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary cir-
cumstance stood in his way and prevented timely fil-
ing”) (internal quotation marks and citations omitted).
We see no reason why, in an appropriate case, equitable
estoppel would not also be available. The district court
refrained from addressing Socha’s equitable argument
in any detail, apparently believing that Socha could not
reasonably have relied upon a jurisdictionally void order
extending the filing deadline. Now that these concerns
have been resolved, we believe that it is best for the
district court to take another look at Socha’s petition
No. 09-1733 13
from the various perspectives we have discussed. Our
belief that the district court is best situated to make this
determination is reinforced by Holland, which urged
courts acting in this highly fact-dependent area to
employ flexible standards on a case-by-case basis. Id.
at 2563-64.
Socha still faces significant hurdles on remand. While
he filed his request for a extension of time before the
deadline, Judge Stadtmueller did not issue his ruling
until well after the deadline had passed. As we noted
earlier, this poses a problem only if Socha’s July 15 filing
cannot serve as the petition itself. If it cannot, however,
then Socha is in a difficult position. He was rolling the
dice: he might have thought that all would be well if
the district court granted his extension, but for all he
knew, the court might have denied the July 15 request
long after the original deadline expired. At that point, he
would have been left with the same equitable tolling
and estoppel arguments that we have already discussed.
These facts may cause the district court to question
Socha’s diligence. But the district court should also keep
in mind the flexibility that is often appropriate for pro se
litigants, who are likely not well versed in complex pro-
cedural rules. See, e.g., Kaba v. Stepp, 458 F.3d 678, 681
(7th Cir. 2006).
***
We R EVERSE the judgment of the district court and
R EMAND for further proceedings consistent with this
opinion.
9-3-10