In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2217

Eric D. Johnson,

Petitioner-Appellant,

v.

Gary R. McCaughtry, Warden,

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 162--Lynn Adelman, Judge.

Argued May 18, 2001--Decided September 7, 2001



  Before Easterbrook, Manion, and Evans,
Circuit Judges.

  Manion, Circuit Judge. Eric D. Johnson
was convicted in Wisconsin state court of
two counts of first-degree intentional
homicide and sentenced to life
imprisonment on both counts. After
exhausting the appellate process and
post-conviction review in state court,
Johnson filed a petition for habeas
corpus in federal court. The district
court denied his petition, finding that
it was barred by the one-year statute of
limitations, and that equitable tolling
did not apply. Johnson appeals, and we
affirm.

I.   Background

  On the morning of September 1, 1992,
while sitting in the back seat of a car,
Eric Johnson shot to death George Cole
and Torrance Jackson, who were seated in
the front seat. A detective dispatched to
the scene testified that Cole, sitting in
the driver’s seat, had a gunshot wound to
the left side of his face and an exit
wound on the right side of his head.
Jackson, sitting in the passenger seat,
had a gunshot wound to the back of his
head, with a majority of his head
missing. One of the police detectives
testified that Johnson confessed to
meeting with Cole and Jackson in order to
sell Jackson a shotgun, going to a bank
with them, getting into a disagreement
with Jackson, shooting Jackson in the
head and then shooting Cole in the head
because Cole saw him shoot Jackson. At
trial, Johnson testified in his own
defense, blaming a fourth individual
named Earl for the shootings. The jury
apparently believed Johnson’s confession
because, on December 3, 1992, it found
him guilty of two counts of first-degree
intentional homicide while armed. On
January 15, 1993, the trial judge
sentenced Johnson to serve a life
sentence on each count, to be served
consecutively. On November 21, 1994, the
Wisconsin Court of Appeals affirmed
Johnson’s conviction. Johnson then filed
a petition for review with the Wisconsin
Supreme Court, which was denied on
February 21, 1995.

  On June 27, 1996, Johnson filed his
first petition for post-conviction relief
in state trial court, arguing that he had
received ineffective assistance of trial
counsel, and that he had failed to raise
that issue on direct appeal because his
appellate counsel was ineffective./1 On
July 2, 1996, the trial court dismissed
his petition based on State v. Knight,
484 N.W.2d 540 (Wis. 1992) (holding that
in order to bring a claim of ineffective
assistance of appellate counsel,
defendant must file petition in appellate
court), and directing him to file his
petition in the state appellate court.
Johnson had ninety days to appeal that
decision, see Wis. Stat. sec. 808.04(1),
but he did not. Instead, on October 17,
1996, as the trial court had directed, he
filed his petition in the state appellate
court. On October 23, 1996, the Wisconsin
Court of Appeals, in State ex rel.
Rothering v. McCaughtry, 556 N.W.2d 136
(Wis. Ct. App. 1996), mandated that
habeas corpus petitions based on
ineffective assistance of postconviction
(as distinguished from appellate) counsel
be filed in a trial court. Relying on
Rothering, on November 29, 1996, the
Court of Appeals dismissed Johnson’s
petition and directed him to re-file his
petition in the state trial court.
Johnson had 30 days to appeal this
decision to the Wisconsin Supreme Court,
see Wis. Stat. sec. 809.62(1), but he did
not do so. Instead, on January 15, 1997,
Johnson filed his petition (for the third
time) in the state trial court, which
denied it on the merits on January 23,
1997. On March 10, 1997, Johnson appealed
the trial court’s decision, and on May 5,
1998, the Court of Appeals affirmed. On
June 12, 1998, Johnson filed a petition
for review with the Wisconsin Supreme
Court which was denied on July 24, 1998.
Then, on February 19, 1999, Johnson filed
the present habeas petition, which the
district court denied, finding that it
was barred by the one-year statute of
limitations and that equitable tolling
did not apply. The district court denied
Johnson’s request for a certificate of
appealability, which he renewed in this
court, and which we granted on January
22, 2001.

II.    Analysis

A.    Statute of Limitations

  The district court denied Johnson’s
petition, finding that it was barred by
the one-year statute of limitations
period applicable to a state prisoner
seeking habeas corpus relief under 28
U.S.C. sec. 2254. See 28 U.S.C. sec.
2244(d). This one-year period commences
on "the date on which the judgment became
final by the conclusion of direct review
or the expiration of the time for seeking
such review." 28 U.S.C. sec.
2244(d)(1)(A). Thus, Johnson’s state
court conviction became final on February
21, 1995 (the date the Wisconsin Supreme
Court denied direct review of his
conviction). Where, as here, the
petitioner’s state court conviction
became final prior to the statute’s
effective date, April 23, 1996, the one-
year period begins on April 24, 1996. See
Fernandez v. Sternes, 227 F.3d 977, 978
(7th Cir. 2000). Johnson did not file the
present habeas petition until February
19, 1999, nearly three years after the
one-year period began to run.

  At first glance it appears that
Johnson’s claim is time-barred. But,
under Section 2244(d)(2), the "time which
a properly filed application for state
post-conviction review or other
collateral review . . . is pending" is
excluded from the limitation period. A
state post-conviction petition is
"pending" between the date of one
appellate court’s decision and the
petitioner’s filing of a further appeal,
thereby tolling the period of limitation.
See Fernandez, 227 F.3d at 980 ("time
following an appellate court’s decision,
and preceding a timely application for
discretionary review [is] excluded from
the calculation under sec. 2244(d)(2).").
Thus, all of the time between January 15,
1997, when Johnson filed his (third)
petition, and July 24, 1998, when
theWisconsin Supreme Court denied his
request for review, is excludable.

  However, on appeal, Johnson argues that
all of the time to seek appellate review
within the state system, even where he
never filed for such review, should be
excluded from the countable year. There
are two crucial time periods at issue.
First, Johnson seeks to exclude the 90-
day period in which he could have
appealed from the trial court’s July 2,
1996 decision, although he did not do so,
instead letting 107 days elapse until he
re-filed his petition in the Court of
Appeals. Second, Johnson seeks to exclude
the 30 days he had to appeal from the
November 29, 1996 Court of Appeals
decision, even though he did not do so
and instead let 47 days elapse until he
re-filed his petition in the trial
court./2 In support of his position,
Johnson points to several other circuits
which have held that a collateral post-
conviction action is "pending" in state
court for the period during which further
review could have been sought, even where
such review is not actually sought./3
  This court has yet to consider this
precise issue. We have observed, however,
that "it is sensible to say that a
petition continues to be ’pending’ during
the period between one court’s decision
and a timely request for further review
by a higher court (provided that such a
request is filed)." Fernandez, 227 F.3d
at 980. In Fernandez, we reserved the
question "whether time provided for
filing a petition or appeal to a higher
court is treated as time during which an
application is pending, if the time
expires without a filing." Id. However,
in Gutierrez v. Schomig, 233 F.3d 490,
492 (7th Cir. 2000), we held that the
one-year limitations period for filing a
federal habeas petition was not tolled
during time in which petitioner could
have filed a petition for certiorari
review of denial of state post-conviction
relief in the United States Supreme
Court. Surprisingly, the government did
not try to persuade us to extend our
holding in Gutierrez to the present
facts. Even more surprising is the fact
that the government confessed error in
its response brief, stating that
Johnson’s habeas petition was timely
filed, and requesting remand to address
his ineffective assistance of counsel
arguments. At oral argument, the
government oscillated in its position,
initially repeating its statement that
the petition was timely filed, and then
agreeing that it might not be timely
filed.

  Regardless of which position the
government chooses to advocate, we will
make an independent judicial assessment
of whether the district court correctly
dismissed Johnson’s petition based on the
statute of limitations. See Sibron v. New
York, 392 U.S. 40, 58 (1968)
("[c]onfessions of error are, of course,
entitled to and given great weight, but
they do not ’relieve this Court of the
performance of the judicial function.’")
(quoting Young v. United States, 315 U.S.
257, 258 (1942)). We need not decide
today whether to extend Gutierrez because
we conclude that Johnson’s first
twopetitions were not "properly filed" as
required under Section 2244(d)(2).

  Under Section 2244(d)(2), we only
exclude the "time which a properly filed
application for state post-conviction
review or other collateral review . . .
is pending." An application is "properly
filed" when "its delivery and acceptance
are in compliance with the applicable
laws and rules governing filings." Artuz
v. Bennett, 531 U.S. 4, 8 (2000). Applic
able laws and rules include "the court
and office in which it must be lodged .
. . ." Id. See also Tinker v. Hanks, 255
F.3d 444, 445 (7th Cir. 2001) (quoting
same). We determine whether a petition is
"properly filed" by looking at how the
state courts treated it. See Freeman v.
Page, 208 F.3d 572, 576 (7th Cir. 2000).
If a state court accepts and entertains
the petition on its merits, it has been
"properly filed," but if the state court
rejects it as procedurally irregular, it
has not been "properly filed." Id.;
Fernandez, 227 F.3d at 978.

  Here, the Wisconsin state courts
concluded that Johnson had not lodged his
first two petitions in the appropriate
place, and accordingly dismissed them on
that procedural ground./4 Thus, under
Wisconsin state law, Johnson’s first two
state post-conviction petitions were not
"properly filed," and the clock continued
to run until his third petition was
properly filed. Cf. Owens v. Boyd, 235
F.3d 356, 357 (7th Cir. 2001) (where
state petition was untimely filed, sec.
2244(d)(2) does not exclude time it was
pending).

  Johnson responds by arguing that since
he was allowed to re-file his first two
petitions, and the court eventually
reached the merits, we should not
consider them improperly filed, and
should toll all of the intervening time.
Under this rationale, a petitioner could
file a petition years after the
limitations period expired, so long as
the state court eventually entertained it
on its merits. This would allow a
petitioner to successfully circumvent the
statute of limitations period. We have
previously declined to adopt this
position and will not do so now. See
Fernandez, 227 F.3d at 980 (such an
"implausible understanding of sec.
2244(d)(2) would sap the federal statute
of limitations of much of its effect.").
Accordingly, since Johnson’s first two
petitions were not "properly filed" under
Wisconsin law, his petition in federal
court, filed 111 days after the statute
of limitations period expired, was
untimely.

B.   Equitable Tolling

  Johnson also claims that the limitations
period should be equitably tolled.
Section 2244(d) itself is a kind of
tolling rule, see Owens, 235 F.3d at 360,
although we also noted in Owens that
equitable tolling "may be available when
some impediment of a variety not covered
in sec. 2244(d)(1) prevents the filing of
a federal collateral attack." Id.
However, this court has never
conclusively determined whether, or to
what extent, the one-year deadline in
sec. 2244(d)(1) is actually subject to
the doctrine of equitable tolling. See
Taliani v. Chrans, 189 F.3d 597, 597 (7th
Cir. 1999). We need not resolve this
issue today because we conclude equitable
tolling would not be appropriate based on
the facts of this case.

  Equitable tolling "excuses a timely
filing when the plaintiff could not,
despite the exercise of reasonable
diligence, have discovered all the
information he needed in order to be able
to file his claim on time." Taliani, 189
F.3d at 597. Johnson argues that he was
unfairly prejudiced when the state court
directed him first to file in the state
appellate court, which then directed him
back to the state trial court. First, if
we treated his second petition as if it
had been properly filed (because Johnson
filed it in the appellate court at the
direction of the trial court), we could
equitably toll the period subsequent to
that filing. However, this argument
ignores that, under then-current
Wisconsin law, Johnson still improperly
filed his first petition in the state
trial court, in contravention of Knight.
In any case, even if we were to toll the
entire period from the time Johnson filed
his second petition until the Wisconsin
Supreme denied review, he would still
have filed his federal habeas petition 21
days too late. Alternatively, we could
treat Johnson as if he had properly filed
his first petition, and the trial court
improperly re-directed him to the
appellate court, which correctly sent
back to trial court pursuant to
Rothering. It is only if we treat the
first petition as if it were "properly
filed" and equitably toll all of the
subsequent time that Johnson’s federal
petition would be timely. However, we
decline to do so.

  Even if both trial court and the Court
of Appeals incorrectly dismissed
Johnson’s first two petitions, an
argument we have noted Johnson did not
make, or if the confusion between the two
courts caused Johnson undue delay, we
emphasize two particular facts that
persuade us equitable tolling is not
appropriate in this case. First, Johnson
waited 107 days after the first decision,
and 47 days after the second decision, to
re-file essentially the same petition
(which was only about two pages long). In
short, he wasted 154 days through no
fault of any court. Second, a majority of
Johnson’s excludable year, 210 days,
elapsed between the time the Wisconsin
Supreme Court denied review, on July 24,
1998, and the time he finally filed for
habeas relief in federal court on
February 19, 1999. The limitations period
did not expire while he was going back
and forth between courts (in which case,
we point out that he still could have
filed a protective federal petition, see
Pizzo v. Bekin Van Lines Co., 258 F.3d
629, 635 (7th Cir. 2001)). Rather,
Johnson’s entire year elapsed (364 days
to be exact), as the district court noted
in its unpublished order denying his
habeas petition, "because substantial
time elapsed when petitioner had no
motions or cases pending before any
court, and not because any court misled
petitioner."

  Johnson also argues that the time period
should be equitably tolled because the
delays were due to his incompetent
attorney. Generally, a lawyer’s mistake
is not an extraordinary circumstance
justifying the application of equitable
tolling. See Taliani, 189 F.3d at 598.
Johnson argues that his case is unique
because he was incarcerated, and
therefore was unable to demand better
representation from his counsel. He
argues that the circumstances of
incarceration make it difficult for a
prisoner-petitioner to ensure that
petitions are filed on a timely basis.
The prisoner is put in the position of
either waiting for his attorney to file
or else filing a protective petition on
his own in the event that his attorney
misses the deadline (as Johnson’s
counsel--a different lawyer from his
counsel before this court--seemed to do
with remarkable consistency). However,
habeas relief, by definition, is almost
always sought by an incarcerated
petitioner, and we decline to find that
this circumstance is so extraordinary as
to warrant the application of this
rarely-applied doctrine. Unfortunately,
many clients, whether in prison or not,
must vigilantly oversee the actions of
their attorneys and, if necessary, take
matters into their own hands.

III.   Conclusion

  We conclude that Johnson’s habeas corpus
petition was barred by the one-year
statute of limitations, and that
equitable tolling does not apply to the
circumstances of his case. Because his
petition was untimely and equitable
tolling is inapplicable, we need not
reach whether Johnson received
ineffective assistance of counsel.
Accordingly, we affirm the judgment of
the district court.

FOOTNOTES

/1 Because the dates discussed here are significant
in this court’s determination on the limitations
period and the equitable tolling issue, a chart
showing a timeline of significant dates is at-
tached as an appendix.

/2 There is also the question of whether this entire
period should be tolled (the 90 days he had to
appeal plus the additional 17 days it took him to
re-file his petition (for a total of 107 days)
and the 30 days he had to appeal plus the addi-
tional 17 days it took him to re-file his peti-
tion (for a total of 47 days)) or whether just
the time periods during which Johnson could have
appealed should be tolled (the 90 days and the 30
days). If we were to exclude only the time in
which he could have appealed (but did not),
Johnson would still have 57 days left in his
excludable year and the additional 34 days would
not make a difference. In any case, given our
holding, we need not reach this issue.

/3 See, e.g., Bennett v. Artuz, 199 F.3d 116, 119-20
(2d Cir. 1999) (stating in dicta that a "state-
court petition is ’pending’ from the time it is
first filed until finally disposed of and further
appellate review is unavailable"), aff’d on other
grounds, 531 U.S. 4 (2000); Swartz v. Meyers, 204
F.3d 417, 420-24 (3d Cir. 2000) (holding that,
because a judgment is not final until the time
for seeking review expires, the word "pending"
includes that time period, whether or not such
review is sought) (collecting cases); Taylor v.
Lee, 186 F.3d 557, 561 (4th Cir. 1999) (holding
that "under sec. 2244(d)(2) the entire period of
state post-conviction proceedings, from initial
filing to final disposition by the highest state
court (whether decision on the merits, denial of
certiorari, or expiration of the period of time
to seek further appellate review), is tolled"
from the limitations period); Williams v. Cain,
217 F.3d 303, 309-10 (5th Cir. 2000) (following
Swartz); Mills v. Norris, 187 F.3d 881, 884 (8th
Cir. 1999) (holding that state post-conviction
motion was "pending" until expiration of ninety-
day period appellant had to file a transcript to
perfect state-court appeal); Gibson v. Klinger,
232 F.3d 799, 804 (10th Cir. 2000) ("regardless
of whether a petitioner actually appeals a denial
of a post-conviction application, the limitations
period is tolled during the period in which the
petitioner could have sought an appeal under
state law.").

/4 We note that Johnson does not argue that either
the state trial court or the state Court of
Appeals incorrectly dismissed his claim. In fact,
he specifically acknowledges that "in each in-
stance, the court which ordered him to take his
claim elsewhere acted properly and within the
law." Appellant’s Reply Brief at p. 2.



Appendix



  EVANS, Circuit Judge, dissenting. I respectfully
dissent. This case, as far as filing papers in
the right state court at the right time is
concerned, was gummed up from the get-go. So
although Judge Manion’s majority opinion is quite
persuasive, given the unique circumstances here
I would accept Wisconsin’s confession of error,
or find equitable tolling on our own, and give
Johnson a chance to air his ineffective assis-
tance of counsel claim on its merits in the
district court.
