JOSEPH ARRIETA, Petitioner-Appellant, v. DEIRDRE BATTAGLIA, Warden, Respondent-Appellee.
No. 04-3050
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 27, 2005—DECIDED AUGUST 24, 2006
Before FLAUM, Chief Judge, and BAUER and SYKES, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 8012—Wayne R. Andersen, Judge.
In 1996 Arrieta was convicted of two counts of first-degree murder in Illinois state court and sentenced to life in prison.1 His conviction was affirmed on direct appeal, and the Illinois Supreme Court denied review on June 4, 1997. On September 18, 1997, Arrieta filed a petition for postconviction relief in state court. That petition was dismissed, and the dismissal was affirmed by the Illinois Court of Appeals on December 18, 1998. Arrieta did not seek further review in the Illinois Supreme Court. Instead, on June 23, 1999, he filed a petition for a writ of habeas corpus in federal district court pursuant to
Approximately two weеks before Arrieta filed his federal habeas petition, the United States Supreme Court decided O‘Sullivan v. Boerckel, 526 U.S. 838 (1999), in which the Court held that a habeas petitioner must present his state court petition for postconviction relief to the highest court of the state in order to satisfy the exhaustion requirement of
When the Illinois Supreme Court deniеd leave to appeal, Arrieta returned to federal court and moved to lift the stay and amend his habeas petition. Before the district court could rule on that motion, Arrieta filed another
On November 10, 2003—more than three years after Arrieta‘s federal habeas petition was dismissed at his request and following another round of postconviction proceedings in state court—Arrieta filed a second federal habeas petition together with a “Motion to Reinstate Habeas Corpus Petition.” This new action was not denominated an amended petition, the old case number was not used, and Arrieta paid the filing fee again. The district court dismissed the action as untimely. The court recognized that the only way the one-year time bar would not be dispositive was if the judgment dismissing the first habeas petition could be vacated, the case reinstated and considered stayed, and the second petition construed as an amended petition rather than an entirely new (and time-
However, the district court concluded that in this case, unlike in Newell, it was powerless to vacate its prior dismissаl because the time period for seeking such relief under
II. Discussion
Arrieta advances three arguments for considering his second habeas petition timely. First, he contends that Newell should be read as requiring the district court to vacate the dismissal of his original habeas petition notwithstanding the one-year time limit imposed by Rule 60(b)(1). Second, he argues that the district court erred when it applied the one-year time limit of Rule 60(b)(1) because the judgment in the first habeas case should have been vacated pursuant to Rule 60(b)(6), the “catchall” provision for reopening a judgment, which contains no fixed time limit on seeking relief. Finally, Arrieta claims the circumstances warrant equitable tolling of the one-year limitation period for filing habeas corpus petitions.
Arrieta‘s first argument is that under Newell, the district court was required to vacate its dismissal of the original petition—effectively converting the dismissal into a stay—and construe the second petition as an amendment to
Before proceeding, it is important to note that although Arrieta denominated his motion as one to “reinstate” the first habeas petition, the district court‘s decision is grounded in Rule 60(b), which governs relief from final judgments. The court held that regardless of whether a stay rather than dismissal would have been an appropriate procedure to follow in the first habeas case, the expiration of the one-year time limit for relief on grounds of mistake under Rule 60(b)(1) made reopening that judgment improper. We review a district court‘s denial of relief under Rule 60(b) for abuse of discretion. Brandon v. Chi. Bd. of Educ., 143 F.3d 293, 295 (7th Cir. 1998).
Rule 60 of the
If the asserted ground for relief from the prior judgment does not fall within one of the specific categories enumerated in Rule 60(b)(1)-(5), relief may be available under the residual provision of the rule, which permits reopening a judgment for “any other reason justifying relief from the operation of the judgment.”
Important to this case is the principle that if the asserted ground for reliеf falls within one of the enumerated grounds for relief subject to the one-year time limit of Rule 60(b), relief under the residual provision of Rule 60(b)(6) is not available. Wesco, 880 F.2d at 983; Brandon, 143 F.3d at 295. To permit relief under the catchall provision in such situations would render the one-year time limitation meaningless. Wesco, 880 F.2d at 983. Accordingly, we have held that “the first three clauses [of Rulе 60(b)] and the catchall clause are mutually exclusive.” Id.
Arrieta‘s fallback Rule 60(b) argument is that the judgment should have been reоpened pursuant to the catchall provision of Rule 60(b)(6), which carries no fixed time limit. The Supreme Court has stated that relief under Rule 60(b)(6) will be “rare” in the habeas context; here, it is unavailable because the ground for relief is properly categorized as mistake under Rule 60(b)(1), and “[Rule] 60(b)(1) and [Rule] 60 (b)(6) are mutually exclusive.” Wesco, 880 F.2d at 985 n.5. Acсordingly, the district court correctly concluded that Arrieta‘s second habeas petition was untimely.
Newell does not require a different result. In Newell, the petitioner presented the district court with a mixed petition for habeas relief, one that raised both exhausted and unexhausted claims. Newell, 283 F.3d at 831. The petitioner then asked the district court to dismiss without prejudice becаuse “some of his habeas claims have been exhausted in the Indiana courts, while other claims are now being litigated in the Indiana courts . . . .” Id. at 831. The motion was granted. Ten months later, the petitioner returned to
[W]e conclude that the court‘s decision was entirely proper. When dismissing Newell‘s first petition, the district court did not have the benefit of our decisions in Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000), and [Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir. 1999)], which suggest that thе federal action should have been stayed, not dismissed, while the Indiana court ruled on Newell‘s pending motion. . . . By vacating the dismissal, the district court effectively converted it into a stay; this could not have been an abuse of discretion because we now know that staying the action was the right step to take in the first place.
Our opinion in Newell did not engage in an analysis under Rule 60(b) or any other authority pursuant to which the petitioner had asserted a right to the “redocketing” of his previously dismissed petition or pursuant to which the district court vacated the prior judgment. This is understandable, given that the issue was apparently not briefed by the parties and was only belatedly inserted into the case by the state at oral argument. Id. at 834. To the extent that the relief from judgment granted in Newell can be read as having been premised on a mistake by the court rather than the petitioner—that is, that the district court should have construed the petitioner‘s mo-
In any event, nothing in Newell can be read as requiring the district court to reopen a previously dismissed habeas petition even where the provisions of Rule 60(b) foreclose vacating the judgment. Newell held that the district court did not abuse its discretion in reopening the dismissal judgment ten months аfter it was entered; it did not hold that the court was required to reopen the judgment even where doing so would be contrary to Rule 60(b).
The Supreme Court has recently held that federal district courts have the discretion to stay a mixed habeas petition—one that contains some exhausted claims and some unexhausted claims—in “limited circumstances” not inconsistent with the “timeliness concerns reflected in AEDPA.” Rhines v. Weber, 544 U.S. 269, 277 (2005). The Court in Rhines held that a “stay and abeyance” of a mixed habeas petition “is only appropriate when the district court determines there was good cause for the petitioner‘s failure to exhaust his claims first in state court” and the unexhaustеd claims are not “plainly meritless.” Id.; see also Dolis v. Chambers, No. 05-3781, 2006 WL 2042536, at *3 (7th Cir. July 24, 2006).
The Court in Rhines observed that “it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engаged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition.” Id. at 278. We read this language as directing district courts to grant a habeas
The Supreme Court has also recently held, in Pliler v. Ford, 542 U.S. 225, 231 (2004), that district courts are not required to warn pro se habeas petitioners of the statute-of-limitations consequences of dismissing a mixed habeas petition. In light of the holdings in Rhines and Pliler, our decision in Newell cannot be read to require the reopening of a voluntarily dismissed habeas case where the one-year time limit of Rule 60(b) has expired.
Finally, Arrieta argues that his second petition should be deemed timely pursuant to the doctrine of equitable tolling. While the one-year habeas statute of limitation may be subject to equitable tolling, such relief is available only where the pеtitioner is unable to file the action within the statutory period due to extraordinary circumstances outside his control and through no fault of his own. Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir. 2004); Williams v. Sims, 390 F.3d 958, 960 (7th Cir. 2004). Mistakes of law or ignorance of proper legal procedures are not extraordinary circumstances warranting invocation of the doctrine of equitable tolling. Williams, 390 F.3d at 963. Indeed, permitting equitable tolling of a statute of limitation for every procedural or strategic mistake made by a litigant (or his attorney) would render such statutes of “no value at all to persons or institutions sued by people who don‘t have good, or perhaps any, lawyers.” Id.; see also Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001). Arrieta‘s procedural mistake in asking for a dismissal of his original petition is not a ground for equitable tolling. To the extent that Arrieta is arguing for equitable tolling on the ground that the district court should have warned him that voluntary dismissal would eliminate his ability to obtain federal
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
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Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-06