Thomas Socha v. Gary Boughton , 763 F.3d 674 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-1598
THOMAS R. SOCHA,
Petitioner-Appellant,
v.
GARY A. BOUGHTON, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cv-994 — Rudolph T. Randa, Judge.
____________________
ARGUED APRIL 7, 2014 — DECIDED AUGUST 14, 2014
____________________
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 fed-
eral 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
2 No. 12-1598
667 (7th Cir. 2010) (Socha I). We sent the case back to the dis-
trict court with instructions to evaluate several theories un-
der which Socha’s action would be timely: whether the mo-
tion to extend time that Socha filed might serve as the peti-
tion itself; whether the deadline should have been equitably
tolled in light of the obstacles to Socha’s filing and the dis-
trict court’s initial grant of his motion to extend the deadline;
or whether the state should be equitably estopped from as-
serting a timeliness defense.
The district court rejected each of these possibilities on
remand. It reasoned that Socha’s motion could not be con-
strued 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 estop-
pel 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 ap-
pealability. 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 argu-
ment. 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 re-
quires his failure to file a completed petition before the
deadline to be forgiven. Accordingly, we reverse the judg-
ment of the district court and remand Socha’s petition for
further proceedings consistent with this opinion.
No. 12-1598 3
I
As we explained in our earlier opinion, Socha was con-
victed of first-degree intentional homicide after a bench trial
in 2002. See Socha I, 621 F.3d at 668. He simultaneously pro-
ceeded with his direct appeal and filed for state post-
conviction 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 col-
lateral relief, it runs from the date when the judgment be-
comes 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 de-
tail below, that time includes the period during which the
state prisoner is seeking a writ of certiorari in the U.S. Su-
preme 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 (2007). The latter
4 No. 12-1598
rule is different for federal prisoners who seek collateral re-
lief. See Clay v. United States, 537 U.S. 522, 525 (2003).
Because of a quirk of Wisconsin procedure, the Wiscon-
sin courts may conduct direct review of a conviction simul-
taneously with a post-conviction petition. That is what hap-
pened in Socha’s case. But the existence of the post-
conviction aspect of the case does nothing to detract from
the rule found in section 2244(d)(1), under which the limita-
tion 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 certio-
rari). See 28 U.S.C. § 2244(d)(1) (“The limitation period shall
run from the latest of … .”); Lawrence, 549 U.S. at 333 (quot-
ing Clay, 537 U.S. at 528 n.3) (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 sec-
tion 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 be-
yond 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
No. 12-1598 5
his inability for more than a year despite persistent requests
to obtain his case file from the public defender who had rep-
resented him at trial, Joseph Sommers. The lack of access to
his file seriously impeded his ability to raise the two argu-
ments 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
(2005) (prejudice aspect of ineffectiveness of counsel evalu-
ated on record as a whole); Strickland v. Washington, 466 U.S.
668, 690 (1984); Hardamon v. United States, 319 F.3d 943, 948
(7th Cir. 2003). A claim under Brady v. Maryland, 373 U.S. 83
(1963), similarly requires an evaluation of the record as a
whole. See, e.g., Banks v. Dretke, 540 U.S. 668, 691 (2004)
(“[T]he three components or essential elements of a Brady
prosecutorial misconduct claim [are] … [t]he evidence at is-
sue 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. 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 Inno-
cence Project and asked it to take up his case.
6 No. 12-1598
After hearing nothing from either Sommers or the Inno-
cence 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 Som-
mers on March 8, this time directing Sommers to send his
case file directly to him at the Green Bay Correctional Insti-
tution, where he was serving his sentence. The silence con-
tinued.
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 corre-
spondence between Socha, Sommers, and Lund. Putnam did
not respond to Sommers’s letter.
With his file still held hostage at his former attorney’s of-
fice, 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-
No. 12-1598 7
defendants. He also requested transcripts in June; they drift-
ed into Socha’s possession in September.
In mid-May the Wisconsin Innocence Project wrote to So-
cha to inform him that it had chosen not to represent him.
That same month, Socha again wrote to Lund and asked that
the case file be sent directly to the prison. This time, Lund
took matters into his own hands, found the file, and mailed
it to Socha; on June 6, 2008, Socha received two boxes con-
taining his case materials. They were in such disarray, he
said, that “it was like someone threw them up in the air in a
windstorm.”
At the time Socha received his file, he was being held in
administrative segregation within the prison. This prevented
him from using its main law library; he was relegated in-
stead to the “Segregation Law Library.” According to Socha,
the entire “library” consisted of two computers with spotty
internet access. The computers were shared by 250 inmates.
Socha was allowed to visit this room for 80 minutes every
two weeks. He could not bring legal materials back to his
cell because he was unable to pay for photocopies. The pri-
son’s logs show that Socha used the Segregation Library
several times in May, once in June, and not at all in July, but
he contends that the prison keeps records only of those times
a prisoner was granted access to the library and not when a
request was denied. Socha further alleges that prison offi-
cials would not grant him priority access to the library be-
cause no court document explicitly showed that he had a
pending filing deadline.
At any rate, Socha realized that he was not going to be
able to meet his July 16, 2008, filing deadline. On July 15,
2008, therefore, he filed a document in the Eastern District of
8 No. 12-1598
Wisconsin that he titled a “Motion to Extend Deadlines for
Petitioner’s Federal Habeas Corpus Petition 28 U.S.C.
§ 2254.” That ex parte motion was assigned to Judge Stadt-
mueller, who on September 19, 2008, granted Socha an extra
90 days to file his petition and fixed a new deadline of De-
cember 19, 2008. Socha later filed another motion requesting
more time to collect additional documents; that motion was
denied by Judge Griesbach. Socha finally filed his petition on
November 19, 2008, a month before the deadline imposed in
Judge Stadtmueller’s order. In it, as planned, he asserted
claims of ineffective assistance of counsel and failure to dis-
close exculpatory evidence, among others.
The district court, now in the person of Judge Randa, de-
nied Socha’s petition on June 15, 2011, on the ground that it
was untimely under 28 U.S.C. § 2244(d). Despite the fact that
Socha had sought additional time before July 16, the fact that
Judge Stadtmueller had granted his request for an extension,
and the fact that he filed well within the new deadline, Judge
Randa dismissed on the ground of untimeliness. He took the
position that Judge Stadtmueller lacked jurisdiction to enter
the order because no case or controversy was pending before
the court when the motion was filed. He also disagreed with
Judge Stadtmueller’s decision on the merits.
On appeal from that order of dismissal, we reversed and
remanded for reconsideration of the timeliness of Socha’s
petition. See Socha I, 621 F.3d at 673. Applying the Supreme
Court’s then-recent holding in Holland v. Florida, 560 U.S. 631
(2010), which held that the AEDPA statute of limitations de-
fense is nonjurisdictional and therefore subject to equitable
tolling, id. at 645, we concluded that the district court had
acted too hastily in dismissing Socha’s petition solely be-
No. 12-1598 9
cause it was filed more than one year after his conviction be-
came final. We noted that there is nothing untoward about a
motion filed in conjunction with a soon-to-be-launched ha-
beas corpus petition. We then mapped out several possibili-
ties for the court to consider on remand, any one of which
would allow Socha to have his petition heard on the merits:
that Socha’s motion might be viewed as an incomplete but
timely petition that could be supplemented later; that the
statute of limitations should be equitably tolled; or that the
State should be equitably estopped from asserting the limita-
tions defense. Socha I, 621 F.3d at 671–72.
On remand, the district court held firm to its earlier deci-
sion. It held that Socha’s pre-filing motion could not be con-
strued as a petition because it omitted any grounds for relief
and said nothing further about Judge Stadtmueller’s action
based on that motion. It declined to apply equitable tolling
because it was not persuaded that Socha had been sufficient-
ly diligent, and it found that equitable estoppel was inap-
propriate because the State had not acted intentionally to
prevent Socha from filing on time.
II
Before we turn to the district court’s order, we must ad-
dress two preliminary issues: why we have concluded that
Socha’s time to file started in July 2007; and whether, as the
state argues, we lack jurisdiction because we somehow “re-
linquished the mandate” ten weeks before we granted So-
cha’s certificate of appealability and abusively “recalled the
mandate” when we granted the certificate of appealability.
Time to File. In Lawrence v. Florida, the Supreme Court
considered the question “whether a state application is still
10 No. 12-1598
‘pending’ when the state courts have entered a final judg-
ment on the matter but a petition for certiorari has been filed
in this Court.” 549 U.S. at 329. In a case involving state post-
conviction relief, the Court held that it is not. It observed
that a natural reading of 28 U.S.C. § 2244(d)(2), which ad-
dresses post-conviction or other collateral relief, shows that
“the statute of limitations is tolled only while state courts
review the application.” Id. at 332. It then explained why in
that circumstance the certiorari process falls outside that pe-
riod:
This Court is not a part of a “State’s post-conviction
procedures.” State review ends when the state courts
have finally resolved an application for state postcon-
viction relief. After the State’s highest court has is-
sued its mandate or denied review, no other state av-
enues for relief remain open. And an application for
state postconviction review no longer exists. All that
remains is a separate certiorari petition pending be-
fore a federal court. The application for state postcon-
viction review is therefore not “pending” after the
state court’s postconviction review is complete, and
§ 2244(d)(2) does not toll the 1–year limitations period
during the pendency of a petition for certiorari.
Id.
Direct review is another matter; if a person decides not to
seek post-conviction relief, then the tolling afforded by sec-
tion 2244(d)(2) never applies. A prisoner seeking federal ha-
beas corpus relief immediately after direct review looks to
section 2244(d)(1)(A) for the date on which his one-year pe-
riod begins to run. That section refers to “the date on which
the judgment [of the state court] became final by the conclu-
No. 12-1598 11
sion of direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A). The “time for seek-
ing” direct review, the Court reaffirmed in Lawrence, “in-
cludes review by this Court.” 549 U.S. at 333.
Wisconsin allows a criminal defendant to make a post-
conviction motion immediately after sentencing. See Wis.
Stat. Ann. §§ 809.30; 974.02. (A different statute, Wis. Stat.
Ann. § 974.06, allows the filing of a motion for post-
conviction relief after the time for appeal or post-conviction
remedy under section 974.02 has expired, but only if the is-
sue raised could not have been presented in a 974.02 motion.
See Wisconsin v. Escalona-Naranjo, 517 N.W.2d 157, 159 (Wis.
1994).) That is how Socha wound up with a hybrid opinion
from the Wisconsin Court of Appeals, the last state court to
address the merits of his case. We see nothing in either the
statute or Lawrence to suggest that the one-year period for
seeking habeas corpus relief after direct review must be
shortened just because the petitioner was simultaneously pur-
suing state post-conviction relief. The limitations period
does not begin to run for any state prisoner until the time for
direct review is complete. Since Socha did not pursue state
post-conviction relief after his direct appeal became final, his
time to file was governed by section 2244(d)(1)(A), which
gave him until July 16, 2008.
Mandate. The other preliminary issue concerns our man-
date—or it would, if this were anything but a frivolous ar-
gument from the state. We readily concede that it would in-
deed be problematic if we had acted on our own to recall the
mandate, as the state says we did. The Supreme Court has
said that “where a federal court of appeals sua sponte recalls
its mandate to revisit the merits of an earlier decision deny-
12 No. 12-1598
ing habeas corpus relief to a state prisoner, the court abuses
its discretion unless it acts to avoid a miscarriage of justice as
defined by our habeas corpus jurisprudence.” Calderon v.
Thompson, 523 U.S. 538, 558 (1998). But that is not what hap-
pened in this case.
The confusion, to the extent that there was any, arose as
follows. When the district court dismissed Socha’s petition
on remand, it initially granted his motion for a certificate of
appealability—the critical document someone who wishes to
appeal from the denial of a petition for a writ of habeas cor-
pus must obtain, either from the district court or the court of
appeals. See 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b). When
that certificate arrived in this court, we vacated it in an order
issued on January 20, 2012, because the district court had
failed to indicate in what way Socha had made a substantial
showing of denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2); Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir.
2004). On February 9, we issued an order declining to recon-
sider that decision. At that point, the case returned to the
district court with the certificate of appealability vacated. No
notice of appeal had ever been filed, and so jurisdiction over
the case had never transferred to the court of appeals.
The ball was then back in the district court, which was
free either to issue a new certificate of appealability that ap-
propriately identified at least one substantial constitutional
issue, or to deny the requested certificate. The district court
chose the latter option and entered a second amended judg-
ment on February 27 that dismissed the petition and denied
a certificate of appealability. Socha then applied to this court
for a certificate, and we granted it, recognizing that the same
substantial constitutional issues that we identified as under-
No. 12-1598 13
lying his first appeal in 2010 (ineffective assistance of coun-
sel and withholding of exculpatory evidence by prosecutors)
are still present in the case and support the certificate.
If we were to accept the state’s argument, the district
court’s amended judgment of February 27 would be unap-
pealable, and the district court would stand as the final arbi-
ter of Socha’s case. That is not, however, what happens
when this court takes the routine action of vacating a prior
order or judgment of a district court and remanding for fur-
ther proceedings. The certificate of appealability was proper-
ly granted and this case is properly before us.
III
As we noted earlier, after taking a second look at the re-
quest for an extension of time that Socha filed on July 15,
2008, the district court concluded that it could not serve as
the actual petition for a writ of habeas corpus. His document
focused exclusively on the need for more time; it did not re-
veal any reasons justifying relief. Rule 2(c) of the Rules Gov-
erning Section 2254 Cases in the United States District
Courts sets forth a number of requirements for a petition.
Among others, it must specify all the grounds for relief
available to the petitioner and state the facts supporting each
ground. We are satisfied that the district court’s reading of
Socha’s July 15 document is a fair one, and that even a gen-
erous reading of this document falls so short of Rule 2(c) that
it cannot be accepted as the petition itself. That disposes of
the only theory under which Socha’s petition might have
been timely.
The district court also found that there were no grounds
for equitably estopping the state from asserting a timeliness
14 No. 12-1598
defense. Equitable estoppel, it noted correctly, applies to a
limitations period when a party takes active steps to prevent
an adversary from suing on time. Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 450–51 (7th Cir. 1990). The only active
step to which Socha points, however, is the state’s decision
to place him in administrative segregation. (Socha also com-
plains about his minimal access to the library, which is the
kind of impediment that may also be analyzed under equi-
table estoppel. See Estremera v. United States, 724 F.3d 773,
777 (7th Cir. 2013).) Neither the segregation argument nor
the library argument (if it is properly before us) is enough,
however. As the district court pointed out, without some ev-
idence that the officials who moved him to segregation or
monitored his use of the library knew that they were imped-
ing his effort to file a petition, it is impossible to characterize
those moves as expressly designed to prevent a timely peti-
tion.
That leaves Socha’s argument for equitable tolling. A pe-
titioner “is entitled to equitable tolling only if he shows (1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and pre-
vented timely filing.” Holland, 560 U.S. at 649 (internal quo-
tation marks omitted). It is the petitioner’s burden to estab-
lish both of these points. See Tucker v. Kingston, 538 F.3d 732,
734 (7th Cir. 2008). The realm of equitable tolling is a “highly
fact-dependent area” in which courts are expected to employ
“flexible standards on a case-by-case basis.” Socha I, 621 F.3d
at 672 (citing Holland, 560 U.S. at 650–52). That said, tolling is
rare; it is “reserved for extraordinary circumstances far be-
yond the litigant's control that prevented timely filing.” No-
lan v. United States, 358 F.3d 480, 484 (7th Cir. 2004) (internal
quotation marks and alterations omitted).
No. 12-1598 15
The state suggests that equitable tolling is a chimera—
something that exists only in the imagination. It asserts that
we observed six years ago that we had never as of then ap-
proved equitable tolling of a habeas corpus petition. See
Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008). We are
not free, however, to regard equitable tolling as something
that exists in name only; this would render the Supreme
Court’s explicit approval of equitable tolling in Holland a
nullity. See also McQuiggin v. Perkins, 133 S. Ct. 1924, 1931
(2013). We have properly enforced the high bar that the
Court has erected in this area, but by the same token we
have not set that bar so high as to make equitable tolling im-
possible. To the contrary, we recognize that its availability
depends on the facts. For example, in Davis v. Humphreys, we
held that mental incompetence could support equitable toll-
ing of the section 2244(d) limitations period, and we re-
manded to the district court for a more nuanced evaluation
of the petitioner’s mental capabilities. 747 F.3d 497, 498–99
(7th Cir. 2014). In Weddington v. Zatecky, we stated that the
intentional confiscation of a prisoner’s habeas corpus peti-
tion and related legal papers by prison officials is extraordi-
nary as a matter of law. 721 F.3d 456, 464–65 (7th Cir. 2013)
(quoting Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000)).
We remanded in Weddington for further factual findings. Cf.
Carter v. Hodge, 726 F.3d 917, 919 (7th Cir. 2013) (ordering
equitable tolling of time under FED. R. APP. P. 4 for taking a
criminal appeal where court erroneously told prisoner that
final judgment had not yet been entered against him).
The question before us is not whether equitable tolling is
a theoretical possibility for Socha; it is. The issue is whether,
on these facts, the district court abused its discretion when it
concluded that Socha failed diligently to pursue his rights
16 No. 12-1598
and that extraordinary circumstances did not prevent his
timely filing.
A
We take up the question of extraordinary circumstances
first, because Socha’s diligence is best evaluated in light of
that broader picture. Chief among these circumstances is
Socha’s lack of access to his legal file throughout almost the
entire one-year period he had under the statute, until just a
month before he asked the district court for help. When he
received his file on June 6, 2008, he had only 40 days left to
file. Socha had been begging Sommers for the file since May
4, 2007, less than three weeks after the Wisconsin Supreme
Court turned down his petition for review. His ability to
monitor his case was compromised by his segregated status
in prison and his consequent limited access to the prison
library. (Even if these circumstances are not enough to
support equitable estoppel, they shed light on the question
whether Socha was responsible for the delay or if instead he
demonstrated the necessary diligence for equitable tolling.)
The state quibbles over whether Socha was denied access on
some occasions, but it has never contradicted Socha’s
contention that the most he could hope for was 80 minutes
in the library every two weeks, and that he could not bring
legal materials back to his cell for want of funds to make
photocopies. Finally, it is worth noting that Socha was
unrepresented for the entire period relevant to our inquiry.
To the extent that this may have led him to err by filing only
a motion for an extension of time just before his deadline
rather than a full-blown petition, it was a pleading error that
must be viewed favorably to him. Cf. Haines v. Kerner, 404
U.S. 519, 520–21 (1972) (pro se litigants are held to less
No. 12-1598 17
stringent standards than those with lawyers). And in any
event, Socha’s pro se status means that he cannot be held
responsible for Sommers’s tardiness in transmitting the file:
counsel’s misconduct is attributed to a client, but non-
counsel’s conduct is not.
The state tries to pick off each of the circumstances Socha
identifies, explaining why in isolation it is not enough to jus-
tify equitable tolling. Incarceration alone, for example, does
not qualify as an extraordinary circumstance. Johnson v.
McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001). That would
make no sense, since it is actually a requirement for habeas
corpus relief that the petitioner be in custody. See 28 U.S.C.
§ 2254(a); see also Maleng v. Cook, 490 U.S. 488, 490 (1989)
(per curiam). Placement in administrative segregation alone
is also not enough by itself; such a rule would hamstring a
prison’s ability to maintain order. See, e.g., Hizbullahankha-
mon v. Walker, 105 F. Supp. 2d 339, 344 (S.D.N.Y. 2000), aff’d
255 F.3d 65, 75 (2d Cir. 2001). Like incarceration, however,
segregation may serve as a piece of the puzzle. We are not
worried that prisoners will vie to be put in segregation just
so that they can secure extensions of the one-year limitations
period.
Similarly, lack of representation is not on its own suffi-
cient to warrant equitable tolling, nor is a petitioner’s lack of
legal training. Prisoners do not have a constitutional right to
the assistance of counsel in post-conviction collateral attacks.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). We cannot
give the label “extraordinary” to a trait that applies to 92
percent of prisoners filing petitions. See Table C-13: Civil Pro
Se and Non-Pro Se Filings, by District, during the 12-Month Pe-
riod Ending September 30, 2013, http://www.uscourts.
18 No. 12-1598
gov/uscourts/Statistics/JudicialBusiness/2013/appendices/C1
3Sep13.pdf (last visited Aug. 14, 2014). Nor is lack of legal
knowledge, another feature shared by the overwhelming
majority of prisoners, by itself enough to justify equitable
tolling. Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013).
The statutory deadlines would be meaningless if either of
these common problems were enough to override the nor-
mal rules.
Poor representation by an attorney calls for a more nu-
anced appraisal. Defects in performance, whether through
the attorney’s own fault or attributable to extenuating cir-
cumstances, do not inevitably support equitable tolling, but
they are relevant. The Supreme Court has identified some
types of errors (such as miscalculation of a deadline) that do
not warrant relief; it calls them “garden variety” claims of
excusable neglect, meaning that these errors are too common
to be called “extraordinary.” Holland, 560 U.S. at 651–52 (cit-
ing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).
An attorney’s incapacity is also not necessarily a ground for
equitable tolling. Modrowski v. Mote, 322 F.3d 965, 968 (7th
Cir. 2003). The important thing is the full picture with which
an inmate is contending. Here, it is notable that Sommers
was not Socha’s attorney for the period relevant to our in-
quiry; his representation terminated with the conclusion of
Socha’s direct appeal, and thus he had no legal authority to
act on Socha’s behalf. His failure to turn over Socha’s file,
then, was not “garden variety” neglect of a client, but rather
a rarer instance where the materials necessary to conducting
one’s legal affairs were being unjustifiably held by a person
who had no ability to use them. (Indeed, Sommers was on
thin ice ethically speaking, given Wisconsin Rule of Profes-
sional Conduct 1.16(d), applicable in the Eastern District of
No. 12-1598 19
Wisconsin, which requires a lawyer who has terminated rep-
resentation to take reasonable steps to protect a client’s in-
terests, including specifically surrendering papers and prop-
erty to the client.)
It does not matter that one could look at each of the cir-
cumstances encountered by Socha in isolation and decide
that none by itself required equitable tolling. The mistake
made by the district court and the state was to conceive of
the equitable tolling inquiry as the search for a single trump
card, rather than an evaluation of the entire hand that the
petitioner was dealt. In Holland, the Supreme Court disap-
proved the use of such a single-minded approach. It wrote
instead that a person’s case is to be considered using a “flex-
ible” standard that encompasses all of the circumstances that
he faced and the cumulative effect of those circumstances.
Similar cases may shed some light on the claim, but “courts
exercise judgment in light of prior precedent … with aware-
ness of the fact that specific circumstances, often hard to
predict in advance, could warrant special treatment in an
appropriate case.” Holland, 560 U.S. at 650.
The hurdles Socha faced were nearly insurmountable, if
he hoped by July 16 to create an adequate petition that met
the criteria of Rule 2(c) of the habeas corpus rules. For nearly
90% of his allotted one year, Socha was without access to
any of the documents pertaining to his legal proceedings
through no fault of his own. He made repeated requests for
the documents both to his former lawyer and eventually to
that lawyer’s superior. He tried to secure new counsel, who
would have secured the documents for him. The district
court faulted Socha for taking no alternative measures while
his file languished in the possession of his former attorney,
20 No. 12-1598
but this conclusion is misguided. The state concedes in its
brief that Socha began seeking alternative avenues to file for
federal relief while he was still without his file; for example,
he worked with inmate Wagner to obtain some documents
directly from the state court. Even if he had not done so, it is
unclear what more Socha could have done without access to
his file. Even the most seasoned attorneys do not, and
should not, draft motions, memoranda, or briefs without ac-
cess to the basic files underlying the actions. They likely
would face discipline if they attempted to reconstruct the
case from memory alone. To expect Socha to have a photo-
graphic memory permitting him to write a petition without
his file is unrealistic.
After Socha finally received his file, new obstacles stood
in his way: limited library access and the rapid expiration of
time. Even ignoring his allegations about the severe limita-
tions on his library access and limiting our consideration to
the uncontroverted facts (eighty minutes of access every two
weeks, two computers for 250 inmates, and the inability to
take legal materials back to his cell), it still would have been
nearly impossible for Socha to review the disorganized file,
gather background legal materials, and craft a meaningful
petition before the deadline. (The state tells us that Socha
was not in segregation for much of the year, but the record
shows that he was in segregation for the entire period be-
tween the receipt of his files and the filing deadline.) At 80
minutes every other week, the most Socha could have gotten
was about four hours of library time in the 40 days he had
before his petition was due (assuming that he had three ses-
sions over five weeks, at 80 minutes each). He had little to no
opportunity to work with his materials in his cell.
No. 12-1598 21
Arguing against self-interest, the state appears to urge
that inmates should feel free to file any piece of paper with
the label “habeas corpus petition,” and that should be
enough to satisfy the statute of limitations. This is not the
incentive we wish to create in a system that is already bur-
dened with high filing levels. Under the state’s proposed
rule, the number of prisoners filing skeletal petitions just be-
fore the deadline would balloon, and one of two scenarios
would play out: courts would be forced to send all of these
petitions back for further factual allegations, providing an
effective end-run around the one-year deadline in a large
number of cases, or they would end up rejecting a large per-
centage of these petitions for being facially inadequate. In
either case, we would be surprised to see the state taking the
“anything goes” position it does here. It naturally would
want the right to complain about the inadequacy of a pro-
posed petition. If so, then a petitioner such as Socha is right
to want to review the file and conduct his research before
filing, so that he can avoid an immediate dismissal. See Es-
tremera, 724 F.3d at 776 (“[F]iling a petition without research
is risky: a good claim may be lost as undeveloped, or a bad
claim may be advanced and rejected, blocking relief on a
good claim later.”).
Finally, Judge Stadtmueller’s order granting Socha’s mo-
tion to extend his time to file deserves brief mention. Alt-
hough just by a day, Socha approached the court before his
deadline expired, not after; that fact alone sets his case apart
from the great majority of those involving untimely filings.
As we said the last time we considered this case, “the facts
related to equitable tolling were before the court” at the time
Judge Stadtmueller granted the motion, and there was no
bright-line bar on his actions. See Socha I, 621 F.3d at 671–72.
22 No. 12-1598
Judge Stadtmueller need not have granted the motion to ex-
tend time, but he did, after deciding that equitable tolling
was warranted. While the decision to apply equitable tolling
is within a district court’s discretion, in general it is best if a
second judge does not revisit that discretionary call after
parties have relied on it. Taking everything into account, we
conclude that the circumstances Socha faced were extraordi-
nary, and that the district court’s finding to the contrary was
an abuse of discretion.
B
We now turn to the question whether Socha diligently
pursued his rights during the period from July 16, 2007 (the
date when his time to file began to run), to November 19,
2008, when he filed in compliance with Judge Stadtmueller’s
order. We are convinced that he did. Beginning long before
his one-year period expired and continuing at regular inter-
vals until he succeeded, Socha repeatedly wrote Sommers
requesting access to his file. As time passed, Socha respond-
ed to changed circumstances, hoping to find some means of
transmittal that Sommers would accept. When Sommers
failed to act, Socha figured out who was in charge at the
public defender’s office and pleaded with him for help. On
the second try, that worked: Lund eventually extracted the
materials from Sommers and sent them directly to Socha.
Once in possession of his materials, Socha used what little
library time he could get to organize and read his file and
work on his petition.
Socha’s case is far from the typical one. Unlike the many
cases in which a tardy petitioner puts nothing before the
court and only later asks for equity to be exercised in his fa-
vor, Socha alerted the court before the deadline arrived and
No. 12-1598 23
sought to preserve his rights. He then filed a completed peti-
tion well within the additional time period he was granted—
indeed, a month before the expiration of the “extra” time
that he believed he had.
The district court faulted Socha for his “complete failure
to develop a fallback plan.” The court did not elaborate on
what such a plan would have looked like, and we cannot
think of one that takes into account the particulars of Socha’s
case. The notion that Socha was simply waiting around for
his file to arrive is not consistent with the record. Even the
state admits that “Socha was in fact busy working on his
case in prison long before his petition was due,” as he was
“receiving representation from another inmate, Ronald
Wagner, beginning in April, 2008.” Wagner’s attempts to ob-
tain Socha’s record through alternative means ultimately
proved fruitless, but the fact that Socha was working with
Wagner to complete his petition beginning in April further
demonstrates that he was diligently pursuing his rights.
We do not put much stock in the district court’s conclu-
sion that Socha did not need all of the time he took because
his habeas corpus petition “parroted” claims that he had
raised in the state courts. It would have been difficult to do
even that much without the papers in front of him. And So-
cha would have run into a different wall if he had tried to
present claims that he failed to exhaust in the state courts. It
is hazardous to conjecture about the amount of time a filing
should have taken based on the end result; sometimes it
takes longer to review the possibilities, discard the least
promising, and write a concise pleading than it would to
write a kitchen-sink petition. Perhaps a review of his entire
record indicated to Socha that he was best served by repeat-
24 No. 12-1598
ing claims made by a member of the bar, instead of trying to
craft legal arguments from scratch. He could not have
known until he had the chance to review his file. The cir-
cumstances as a whole leave no room, we conclude, for a
finding that Socha was not diligent.
IV
Equitable tolling is rare, but so are the facts of this case.
Based on Socha’s repeated efforts to obtain an unjustifiably
withheld file, the minimal time he had in which to complete
a petition afterward, and the initial judicial determination
that tolling was appropriate, we conclude that it was an
abuse of discretion to deny tolling of the AEDPA deadline.
We reach this conclusion using the flexible, fact-specific
standard described by the Supreme Court in Holland. In light
of all the circumstances, Socha is entitled to equitable tolling
of the one-year deadline for his habeas corpus petition.
The judgment of the district court is REVERSED and the
petition is REMANDED for further proceedings consistent
with this opinion. As the only issue that has been adjudicat-
ed thus far is the timeliness of the petition, we stress that our
opinion is limited to that point and should not be under-
stood as restricting any other arguments either the state or
Socha wishes to raise.