700 F.3d 993 | 7th Cir. | 2012
Lead Opinion
In Elliot Don Ray’s first federal habeas appeal we found that his constitutional rights were violated when the state introduced out-of-court statements made by individuals who did not testify at his murder trial. But we remanded to give the state the opportunity to assert a defense that Ray’s state post-conviction motion was untimely. Ray v. Boatwright (Ray I), 592 F.3d 793, 798-99 (7th Cir.), as amended (Apr. 1, 2010). On remand, and after an evidentiary hearing, the district court placed the burden of proving timeliness on Ray, finding that he did not timely give his state post-conviction motion to a prison official for mailing, and dismissed the petition.
On appeal, Ray argues that the district court erred by placing the burden of proof on him, by not requiring the state to put forth an affirmative case of untimeliness, and by not applying the mailbox rule, which supported his position that his state post-conviction motion had been “properly filed” for the purpose of tolling AEDPA’s limitations period. The state asserts that the mailbox rule does not apply because the state procedural rule under which Ray challenged his conviction does not have a timeliness requirement, and even if the mailbox rule does apply, the petitioner— not the state — bears the burden of proof, and that Ray did not carry his burden. We disagree and adopt the rule set forth by the majority of our sister circuits that the prisoner mailbox rule governs whether a state post-conviction document is “properly filed” under the AEDPA limitations period unless the state has clearly rejected it. Because Wisconsin has not clearly rejected it, the mailbox rule applies in this case.
Having so found, we address the second issue, which is who has the burden of proof. Where a pro se prisoner’s filing is not received by the state court, the habeas petitioner must produce some evidence to support his sworn statement of timeliness, and if this showing is made, the burden shifts to the state to prove untimeliness. Applying these rules to this case, we find that the state failed to present competent evidence contradicting Ray’s testimony and documents showing that he timely gave his state post-conviction motion to a prison official for mailing. The district court’s finding of untimeliness was clearly erroneous because it ignored this lack of evidence and was based on nothing more than conjecture and speculative doubt, allowing the state’s conclusory arguments to carry the day. We therefore reverse and remand with instructions to grant Ray’s habeas petition unless the state elects to retry him within 120 days.
As we detailed more thoroughly in our previous opinion, Ray was convicted in Wisconsin on state counts of reckless homicide, party to a crime, and recklessly endangering the safety of another. Ray I, 592 F.3d at 794-96. His conviction resulted from a retaliatory shooting on 29th Street in Milwaukee, Wisconsin that left an eleven-year-old girl dead and two other people injured. At Ray’s criminal trial, the state called Detective Daniel Phillips to describe a signed statement that Ray gave during his interview with police. The detective primarily read from Ray’s statement. But he also recounted his own out-of-court statements informing Ray that two co-actors had implicated Ray in the shootings. Detective Phillips testified:
Ray was then confronted with numerous statements made by co-actors that they were present [at the] shooting on 29th Street and so was Ray.
Ray then stated “those stupid niggers shouldn’t be talking and they can’t talk for me.”
When confronted with statements by [Miriam Myles] that Ray was shooting a nine-millimeter on 29th Street [and] in a statement by Sylvester Townsend ... that Ray had a .45-caliber pistol[,] Ray then said “tell me which gun killed the girl and I’ll tell you everything.”
Neither Miriam Myles nor Sylvester Townsend testified during Ray’s trial. But defense counsel did not object to this incredibly damaging testimony. After his conviction, Ray raised five issues on direct appeal, including a claim that Detective Phillips’s testimony violated his right to be confronted with the witnesses against him. The state appellate court ignored this claim, decided that Detective Phillips’s testimony was not hearsay because it was not offered to prove the truth of the matter asserted, and affirmed Ray’s conviction. The Supreme Court of Wisconsin denied Ray’s petition for review on June 12, 2003.
Ray then sought state post-conviction relief under Wisconsin Statute section 974.06. That statute provides: “After the time for appeal or postconviction remedy ... has expired, a prisoner in custody ... claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Wis. Stat. § 974.06(1). Importantly, a section 974.06 motion for relief “is part of the original criminal action, is not a separate proceeding and may be made at any time.” Id. § 974.06(2). Ray’s request for relief under section 974.06 was eventually denied on October 16, 2006.
Ray filed two separate pro se petitions for writ of habeas corpus in the federal district court on February 28, 2007. The district court summarily dismissed Ray’s petitions, exercising its authority under Rule 4 of the Rules Governing Section 2254 Cases,
On remand, the district court held a status conference to decide how to proceed. The state did not request additional discovery or alert the district court of any difficulties it had experienced in obtaining relevant evidence. The state filed a motion to dismiss Ray’s petition as untimely. Ray countered with a motion for summary judgment. After reviewing the parties’ briefs, the district court denied both motions, scheduled an evidentiary hearing, and ordered Ray to testify in support of his claim that “the mailbox rule exception to the statute of limitations defense applies.” The court also ruled that Ray bore the burden of proving that his petition was timely.
The record before the district court, as it existed prior to the evidentiary hearing, included Ray’s sworn affidavit detailing his claim that on April 27, 2004 he gave his section 974.06 motion to Ms. Tamara Smith, a Diamondbaek Correctional Facility social worker. Ray averred that he gave Ms. Smith the motion, with prepaid postage, for mailing to the Wisconsin Circuit Court of Milwaukee County. He maintained that Ms. Smith, in turn, gave him two receipts: a “Certifícate of Service by Mail” receipt, which he signed, and a “CCA Privileged Correspondence Receipt,”
On July 28, 2011, the district court held an evidentiary hearing. Before beginning, the court clarified that even though the general rule is that the party asserting an affirmative defense, like untimeliness, bears the burden of proving the defense, Ray had invoked an exception to the defense so the burden rested with him to prove that the exception applied. The court noted that Ray “has made the required presentation of sufficient evidence ... to conclude that he has raised [the mailbox rule] issue.... [T]he state disputed it, not based on specific facts but inferentially, they argued that the evidence he has supporting his position is not credible. I have concluded that we need a factual hearing on that.” The hearing, according to the court, was conducted to “assess [Ray’s] credibility.”
The evidentiary hearing began with testimony from Corrections Officer John T. Nedbal. He worked in the library of New Lisbon prison, where Ray was incarcerated .when he allegedly lost the signed CCA
On cross-examination, Officer Nedbal explained that Ray’s copies were, to his knowledge, the first requested copies that had ever been lost during the three years that he worked in the library. He agreed that the only basis for believing that the copies had been lost was Ray’s claim that he did not receive them. Other than the “photocopy request,” which served as a de facto receipt for prisoners and the prison, Officer Nedbal had no other means of verifying that Ray’s original document and requested copies had never been delivered.
Ray then called Lynn Martin to testify. Ms. Martin served as the librarian at New Lisbon since the fall of 2007. She explained that she would have screened the documents that Ray submitted for photocopying and flagged anything that looked suspicious for a supervisor’s review. According to Ms. Martin, if the materials “went over to be copied” then she did not notice anything suspicious about them. Ms. Martin admitted that she was not aware of any other prisoner’s copies being lost, but she said that the only way the library would know is if the “inmate came and let us know.” In her opinion, the prison would not have taken steps to look for the copies — including circulating an internal memo, and interviewing individuals who were responsible for the copying — if Ray’s copies had never been made. Ms. Martin stated that she checked the “lost in mail” option on an information request form she received because she believed that the photocopies were made and there was no evidence that Ray actually received them.
During her cross-examination, Ms. Martin explained that she would identify a document as suspicious if it “had someone else’s name on it,” but she also looked at “various other” indicators of suspiciousness. She said she believed Ray’s documents were lost because his request was not flagged as suspicious and he claims to have never received the documents. The prison did not have an internal tracking procedure to verify receipt of requested copies, nor did it require prisoners to sign any type of receipt upon delivery. Looking at library records, Ms. Martin confirmed that an inmate with the initials “AS.” completed Ray’s photocopy request on April 19, 2010. Finally, Ms. Martin testified that Ray had previously worked in the library between February and September 2008.
On redirect, Ms. Martin corroborated Officer Nedbal’s statement that prisoners were required to detail what they wanted copied, not just the number of copies they were requesting or their preference for how the copies would appear (e.g., double-sided, scaled, etc).
The state solicited testimony from Michelle Highley, a financial specialist at
Ray served as the final witness at the evidentiary hearing. He began by reaffirming the veracity of his previously submitted affidavit. He explained that in April 2004 he was incarcerated at the Diamondback Correction Facility in Oklahoma. Diamondback did not have a separate system for legal mail; inmates could give legal mail to the prison officials or put it directly in the regular mail. Ray explained that on April 27, 2004 he did not have access to the regular mail system because his prison unit was on “administrative confinement,” so prisoners were prohibited from leaving the unit. During lunchtime, Ms. Tamara Smith, one of the prison’s social workers, “came in the unit.” Seeing Ms. Smith, Ray .“stopped eating went upstairs to [his] cell, grabbed [his] ... manila envelope with [his section] 974.06 [motion] in it and brought it downstairs” to give it to her. After telling Ms. Smith that he needed her to send “legal mail” on his behalf, Ray and Ms. Smith went into “the social worker office” where she proceeded to look through the cabinets before finding and giving Ray two forms to complete. The first form, according to Ray, was a certificate of service by mail. The second was a CCA privileged correspondences receipt, which Ms. Smith allegedly signed.
Ray testified that he had been relying on fellow inmates for help with his legal affairs and that he did not produce the CCA receipt initially because one of those inmates had it when the inmate was transferred to another prison. Ray testified that, relying on the advice of other inmates, he only followed up with Ms. Smith — and not the state court directly— because he was concerned that the court might get irritated and summarily dismiss his petition. Ray allegedly sent Ms. Smith three letters to obtain information about his post-conviction motion, the first on June 1, 2004, the second on September 9, 2004, and the last on June 15, 2005. He retained copies of each. But after not hearing back from Ms. Smith for nearly two years, Ray decided to contact the state court directly. He claims to have waited so long because he thought there might have been some sort of delay in his mail reaching Ms. Smith: “staff members in other institutions ... [t]hey get a letter ... from an inmate, they’ll put it to the side until they keep piling up____” So in October 2006, Ray sent a notarized letter to the Circuit Court of Milwaukee County requesting information about the status of his section 974.06 motion. After being informed that no such motion was received or pending, Ray filed a supplemental section 974.06 motion, which the court denied on October 14, 2006. Ray subsequently sent Ms. Smith a letter on November 1, 2006 asking about his original motion and explaining that the court had never re
According to Ray, after we issued our opinion in April 2010, he began reaching out to try to find the inmate who had his CCA receipt. After finally tracking down the receipt, Ray sought to make copies for himself and his recently retained attorney. However, the prison library failed to deliver his requested copies and did not return his original document. So Ray sought advice from Ms. Martin. She apparently knew about Ray’s case because she “call[ed] him down to the library to show” him on “LexisNexis the decision” we issued in April 2010. Ray explained to Ms. Martin that he thought it was extremely important to find the document.
The state confronted Ray with Diamondback’s “Communication Mail and Visiting” policy, which had been in effect during April 2004. Section 6(a) of the policy states: “All inmate mail will be processed through the institutional mailroom. No person, either staff or visitors, is permitted to bring in or take out any mail or article for an inmate.” Ray maintained that he could not take mail to the mailroom because his unit was on administrative confinement, and despite the written policy, inmates were allowed to give mail to the prison officials. Although the policy said nothing about receipts for outgoing privileged mail — but it did describe such receipts for “incoming” correspondences— Ray swore that Ms. Smith gave him a receipt for his outgoing mail. Pointing to the prison mail logs to buttress his claim, Ray testified that all outgoing legal mail was supposed to be logged, prisoners do not have access to the mail logs, and the prison refused to produce (or submit into evidence) logs from the relevant dates, including the date he gave his motion to Ms. Smith.
The district court offered both sides an opportunity to make closing arguments. Ray’s counsel summarized Ray’s evidence and argued that “[f]or the State to prevail in this situation, you have to believe that in October 2006, Mr. Ray had figured out ... AEDPA and the tolling provisions ... then began to manufacture evidence in 2006 ... to deal with the federal petition that had not even been filed assuming that a State petition, which he had just found out had not been received, was going to be denied. It is an extraordinary amount of prescience on the behalf of Mr. Ray who, until recently, did not even have his [general equivalency diploma].”
The state closed by raising a series of questions about Ray’s version of the events. It began by refuting a suggestion by Ray’s counsel that it had been derelict in obtaining evidence from Diamondback. Counsel explained, “I have made numerous phone calls to CCA ... [and have been] met with voicemails and unreturned calls for months now. I have done everything that I can think of to do to get more information from CCA on what their policies were.”
The state then argued that Ray is “a very bright individual” and “it strains credibility” to believe that he could not understand AEDPA’s statute of limitations. Counsel continued, “So I do not think that it is beyond the realm of possibility that ... Mr. Ray learned of the one year time limit, learned that he had passed it and started with his collateral stuff and then at some point made these letters .... ” The state’s attorney further argued that “it seems incredible” that Ray would give Ms. Smith his section 974.06 motion right before he was going to be transferred to Wisconsin, and that “a Privileged Correspondence form would be given to an inmate in outgoing mail” and “a Certificate of Service ... would be, you
We know only from Mr. Ray that the copies were missing or supposedly missing. We do not know what was copied. No one knows what was copied. The only statement about what was copied comes from Mr. Ray.
The fact that he transferred between five prisons in however many years and suddenly came upon this form that was some sort of smoking gun that he did not give to his attorney but instead gave to prison officials, I just find all of that incredible.
Hr’g Tr., 113-20, July 28, 2011.
On August 28, 2011, the district court issued an order dismissing Ray’s habeas petition as untimely. The court found that “Ray’s version of the events concerning the filing of his state motion for post-conviction relief is not credible.” The court’s decision closely paralleled the state’s closing argument. Its findings were based on the following: (1) Ray allegedly gave Ms. Smith his motion “when he knew he was on his way back to Wisconsin in a matter of days”; (2) Ray waited until October 4, 2006, to ask the clerk of the court” for information about his motion; (3) Ray failed to take any action other than sending Ms. Smith “nearly identical” letters; (4) the “somewhat curious” nature of Ray “retain[ing] a copy of a letter he sent only a month after he handed Smith his motion for postconviction relief, but [he] did not retain a copy of the motion itself’; (5) Ray’s certificate of service “bears no signatures, other than Ray’s, and appears on plain white paper with no heading or other indication that it is an official prison form ... [and] [e]ven when compared with the official property request form from Ray’s file, which also lacks an institutional heading and contains a grammatical error ... the certificate looks more like the work product of a prisoner than a prison administration”; and (6) Ray’s “knowledge of not only the one-year limitations period for federal habeas petitions, but also the mailbox rule and the rules governing tolling of the one-year period” which was demonstrated by his “two or three boxes of legal materials.” Finally, the district court pinpointed Ray’s claim that the signed receipt had been lost by the prison:
[I]t is clear that the document Ray handed CO Nedbal for photocopying could have been a document he created in an attempt to manufacture additional evidence to corroborate his claim that he handed his § 974.06 motion to Ms. Smith on April 27, 2004. The detail in which Ray described the document ... suggests a purpose beyond a simple request for a thirty-cent disbursement for photocopying.... [Nedbal’s] signature ... and acceptance of the document for copying, under the circumstances, cannot be reasonably viewed as proof of what the document was. Having worked in the library himself, Ray would have known as much.
The district court concluded that Ray was not credible, that he did not carry his burden of proving statutory tolling, and that his petition was time barred. Ray appeals.
This appeal raises two questions that we have yet to resolve in our circuit: first, whether the mailbox rule applies to toll AEDPA’s one-year limitations period when a prisoner delivers a Wisconsin section 974.06 postconviction motion to a prison official for mailing to the state court; second, if the mailbox rule applies, which party bears the burden of proof on the matter of timeliness when the state court never receives the prisoner’s motion. Our review of these unsettled legal issues is de novo. Simms v. Acevedo, 595 F.3d 774, 777 (7th Cir.2010). We will then decide if the district court clearly erred by finding that Ray did not give his section 974.06 motion to Ms. Smith on April 27, 2004 and that Ray’s federal habeas petition was untimely. See Bintz v. Bertrand, 403 F.3d 859, 865 (7th Cir.2005).
A. The Mailbox Rule Applies
In Houston v. Lack, the Supreme Court established the “bright-line rule” that a pro se prisoner files a federal notice of appeal, a prerequisite to federal appellate jurisdiction, at the moment the prisoner delivers it to a prison official for mailing to the court. 487 U.S. 266, 275-76, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). This rule is colloquially known as the “Houston ” or “prison” mailbox rule. Jones v. Bertrand, 171 F.3d 499, 500 (7th Cir.1999). The reasons for its existence are manifold.
For starters, pro se prisoners occupy a unique position in litigation. Unlike others, pro se prisoners cannot actively monitor their pending case, they cannot personally travel to the courthouse to ensure that their filings have been timely received, and they cannot freely track their mailings via consistent communication with the court, or the enlisted mail carrier, to determine if anything has gone awry. See Houston, 487 U.S. at 270-71, 108 S.Ct. 2379. Instead, a pro se prisoner must almost blindly rely on “vagaries of the mail” and the scruples of prison officials. Id. at 271, 108 S.Ct. 2379. “And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk’s failure to stamp the notice on the date received.” Id. In short, once a pro se prisoner’s filing leaves his hands he loses control over its processing. Id.
Additionally, prisons are (or should be) equipped with well-developed administrative procedures for “recording the date and time at which they receive papers for mailing.” Id. at 275, 108 S.Ct. 2379. In light of the inherent prison-prisoner power and information imbalance, prisons should be able to “readily dispute a prisoner’s assertions that he delivered the paper on a different date” by referencing “prison mail logs,” for example, or other reliable indicators of mailing established and controlled by the prison. Id. “The prison will be the only party with access to at least some of the evidence needed to resolve such questions — one of the vices the general rule is meant to avoid — and evidence on any of these issues will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay.” Id. at 276, 108 S.Ct. 2379.
Finally, the mailbox rule ensures that justice will be properly served. See Jones, 171 F.3d at 502. Although not always, our judicial system does recognize the complexity of our prescriptive procedural rules and we oftentimes relax those rigid requirements when a litigant appears in federal court unrepresented. E.g., Erickson
With the rationale underlying the mailbox rule squarely in our sights, we must decide as a matter of first impression whether the rule applies to a Wisconsin pro se prisoner’s section 974.06 post-conviction motion.
AEDPA requires a federal habeas petition to be filed within one year from “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). “The one-year statute of limitations can be tolled, however, if the petitioner applies for ‘State post-conviction or other collateral review' of the judgment.” Price v. Pierce, 617 F.3d 947, 950 (7th Cir.2010)(quoting 28 U.S.C. § 2244(d)(2)). For statutory tolling to apply, the state post-conviction motion must be “properly filed.” 28 U.S.C. § 2244(d)(2). That determination is governed by state procedural law. Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000).
• Ray filed his federal habeas petition on February 28, 2007. His state conviction became final on or about September 10, 2003, after the time expired for filing a petition for writ of certiorari in the Supreme Court for direct review of the state court’s judgment. See 28 U.S.C. § 2244(d)(1)(A); see also Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir.2002) (“[W]e believe that the ninety day period during which a petition for certiorari may be filed by a state prisoner falls within the meaning of section 2244(d)(1)(A) for purposes of calculating when the statute of limitations begins to run.”). Given the three-year time difference between the state court’s final judgment and Ray’s federal filing, Ray’s federal habeas petition
The state, citing Wisconsin Statute sections 801.16(1) and 809.80(3), argues that Ray cannot benefit from the mailbox rule because Wisconsin requires “actual receipt” by the court clerk for a document to be “properly filed,” and Ray’s motion was not actually received before AEDPA’s limitations period expired. The state also argues that the mailbox rule should not apply where, as here, a prisoner’s post-conviction motion may be filed at any time. The state views section 974.06’s failure to include a filing deadline as proof that Wisconsin refuses to apply the mailbox rule in these circumstances. We do not find the state’s arguments persuasive.
A majority of our sister circuits have held that unless a state clearly rejects it, the Houston mailbox rule governs whether a state post-conviction document is “properly filed” under AEDPA. Compare Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir.2010)(California), and Stoot v. Cain, 570 F.3d 669, 671 (5th Cir.2009)(Louisiana), with Howland v. Quarterman, 507 F.3d 840, 844-45 (5th Cir.2007) (Texas), and Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir.2003)(Ohio), and Adams v. LeMaster, 223 F.3d 1177, 1180 (10th Cir.2000)(New Mexico). But see Fernandez v. Artuz, 402 F.3d 111, 113-15 (2d Cir.2005) (“New York’s rejection of the mailbox rule does not preclude its application by a federal court in tolling a federal statute of limitations.” (emphasis original)); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir.2000)(“the mailbox rule applies with equal force to the filing of state as well as federal petitions”). Two recent but divergent Fifth Circuit cases illustrate this point. In Stoot, the Fifth Circuit held that even though the Louisiana Supreme Court had not considered the precise issue of whether the mailbox rule applies when a pro se prisoner’s pleading is mailed but not received, the state’s top court “has adopted the holding and reasoning of Houston,” so the rule extended to that case. 570 F.3d at 671. Stoot is distinguishable from the Fifth Circuit’s earlier decision in Howland because Texas, the relevant state there, unlike Louisiana, had clearly rejected the mailbox rule. 507 F.3d at 844-45. The thread weaving these disparate outcomes together is the manner in which the underlying state’s procedural law treats pro se prisoners’ post-conviction filings. See Artuz, 531 U.S. at 8, 121 S.Ct. 361. We agree with the majority of our sister circuits and hold that the mailbox rule applies to a state pro se prisoner’s post-conviction filings unless the state where the prisoner was convicted has clearly rejected the rule.
Wisconsin procedural law is at issue here, and we think it is clear that Wisconsin has fully embraced the Houston mailbox rule. First, Wisconsin does not require “actual receipt” for a post-conviction motion to be deemed properly filed. The state’s principal citation, Wis. Stat. § 801.16(1), simply states that court filings “shall be made by filing them with the
Second, the Supreme Court of Wisconsin made its endorsement of the. Houston mailbox rule abundantly clear in State ex rel. Nichols v. Litscher, 247 Wis.2d 1013, 635 N.W.2d 292, 295-96 (2001). In that case, the court, persuaded by Houston’s rationale, applied the mailbox rule to a pro se prisoner’s state certiorari action. Id. at 298 (‘We are persuaded by the rationale in Houston’’). It doing so, the court explained that it was not “mandat[ing] any particular procedure that [pro se prisoner] litigants must follow,” but “a certificate of service or affidavit of mailing ... would create a rebuttable presumption that the prisoner had delivered his or her petition to the proper prison authorities ■ on the particular day certified.” Id. at 299.
The state dismisses Nichols because it addressed tolling the time for petitioning the state supreme court for review after an appellate court’s affirmance. The state correctly notes that section 974.06 motions are not subject to any time requirements, but this does not matter. All of the concerns animating the Supreme Court’s decision in Houston and the Supreme Court of Wisconsin’s decision in Nichols apply with equal force to pro se prisoner filings not subject to a time requirement. A pro se prisoner’s unique litigation disadvantages do not disappear when filing deadlines are eliminated. Ray’s situation provides a perfect case in point — although he fully complied with section 974.06, the state has attacked his federal habeas petition as untimely. Notwithstanding Wisconsin’s generous acceptance of section 974.06 post-conviction motions at any time, there are practical (and in this case drastic) consequences for not filing the motion within one' year of the final judgment.
Suppose it was undisputed that Ray gave his postconviction motion to a prison official within AEDPA’s one-year time frame but the state court received the document one year and one day later due to some honest oversight in the prison mail system. Accepting the state’s position would leave Ray without a federal forum to collaterally attack his conviction, unless he could prove his entitlement to equitable tolling. Statutory tolling would offer no reprieve because without the benefit of the mailbox rule, Ray’s state motion was not “properly filed” within AEDPA’s one-year period. The state is comfortable with this result bpcause section 974.06 itself imposes no filing deadline. But we are not. In our hypothetical, Ray’s inability to control and monitor his mailings would be the reason for his habeas misfortune. The Supreme Court established the Houston mailbox rule to obviate such objectionable outcomes.
The gravamen of the state’s argument is that the mailbox rule does not apply where a prisoner’s filing is not subject to a timeliness requirement. The state reasons as follows: the mailbox rule applies if there is a filing deadline; Ray could file his state post-conviction at any time, so the mailbox rule does not apply to Ray’s filing. We reject this reasoning. Just because a pro se prisoner can benefit from the mailbox rule to statutorily toll AEDPA’s one-year period if a state filing is subject to a deadline, it does not follow that the rule
Many courts, including the Supreme Court, have consistently conveyed concerns about the pro se prisoner’s unique litigation disadvantage, including his inability to control and monitor documents that he sends to the court. E.g., Houston, 487 U.S. at 270-71, 108 S.Ct. 2379; Jones, 171 F.3d at 500-01. As one means of addressing these concerns, we will apply the mailbox rule to a prisoner’s state post-conviction filings unless the state has clearly rejected the rule. Because the Wisconsin Supreme Court held in Nichols that the mailbox rute aperabifcto. “file” a pro se prisoner’s court femment when the prisoner delivers it to a prison'.official for mailing, that pronouncement¥%overns. Nichols, 635 N.W.2d at 298. Ra^,* therefore, ean rely on the Houston mailbox rule to statutorily toll AEDPA’s limitations period, even though Wisconsin permits section 974.06 post-conviction motions t0 be filed at any time.
B. The State Bears the Burden « Proving Untimeliness
Having decided that the Houston mailbox rule applies, we turn to the burden of proof. It is well-settled that AEDPA’s statute of limitations is a non-jurisdictional affirmative defense. Day v. McDonough, 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). Generally, the party raising an affirmative defense bears the burden of proof. See Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir.2004). The same is true in the habeas context. See id. (“Since the period of limitations is an affirmative defense, the state has the burden of showing that the petition is untimely.”). Ray argues that this axiom should end our inquiry, and that the state should bear the burden of proving that his federal habeas petition is untimely. But resolution of this issue is not so straightforward.
The state identifies two potential problems with applying the general rule to this case. First, tolling offers one way around the statute of limitations and it makes intuitive sense to require the party requesting tolling to prove its appropriateness. The state finds support for this argument in how courts allocate the burden of proof in cases involving equitable tolling. E.g., Pace, 544 U.S. at 418, 125 S.Ct. 1807. Second, in cases like this one, where a petitioner’s purported filing is never received, the state would be re
It is certainly true that the petitioner bears the burden of proving “equitable tolling.” Id. But equitable tolling, as its name suggests, is an appeal to equity. See Holland, 130 S.Ct. at 2563. It is not a matter of statutory interpretation. As is almost always the case, the party seeking equity must prove its entitlement to equity. See, e.g., Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 233, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002) (Ginsburg, J., dissenting) (“As courts in the common-law realm have reaffirmed: ‘Principles of equity, we were all taught, were introduced by Lord Chancellors and their deputies ... in order to provide relief from the inflexibility of common law rules.’ ” (citation omitted)); Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 244-45, 54 S.Ct. 146, 78 L.Ed. 293 (1933)(“The governing principle is ‘that whenever a party who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine....’” (citation omitted)); see also Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir.2010)(“The party seeking equitable tolling bears the burden of proving he is entitled to it.”). Statutory tolling, however, is quite different. Equity is not involved, and blameworthiness is not relevant. See Holland, 130 S.Ct. at 2561-62 (describing § 2244(d)(2) tolling as of “a different kind” than equitable tolling). Regardless of how diligent or dilatory a federal habeas petitioner might be, AED-PA’s “one-year clock is stopped ... during the time the petitioner’s ‘properly filed’ application for state postconviction relief ‘is pending.’ ” Day, 547 U.S. at 201, 126 S.Ct. 1675 (quoting 28 U.S.C. § 2244(d)(2)). Equitable tolling can be invoked only after a finding or concession that the one-year period has expired. See Cross v. Sisto, 676 F.3d 1172, 1175-76 & n. 2 (9th Cir.2012). So placing the burden on the party requesting equitable tolling is functionally equivalent to first finding that the federal petition is untimely and then requiring the petitioner to prove that “equity” should except or excuse such untimeliness. In this way, the burden is rightfully on the petitioner, as the party seeking application of an equitable exception to the timeliness rule. Cf. Knox v. Cook County Sheriff's Police Dep’t, 866 F.2d 905, 907 (7th Cir.1988) (“While the statute of limitations is an affirmative defense, the burden of establishing an exception thereto is on plaintiff.”).
Our section 2244(d)(2) statutory tolling inquiry is one step removed from equitable tolling. It tells us which days count toward the one-year limitations period. As the statute itself puts it, the “time” that a properly filed petition “is pending shall not be counted” toward AEDPA’s limitations period. 28 U.S.C. § 2244(d)(2). We think the state should have to prove that each of the 365 days it relies on for its affirmative defense actually qualifies as a “countable” day under the statute. See Fleming v. Evans, 481 F.3d 1249, 1257 (10th Cir.2007) (“The state bears the burden of proving that the AEDPA limitations period has expired.”); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir.2002) (“[T]he party asserting statute of limitations as an affirmative defense has the burden of demonstrating that the statute has run.”). We are particularly persuaded by the fact that a petitioner “cannot bring a federal habeas claim without first exhausting state remedies — a process that frequently takes long
Traditionally, courts have placed the burden of proof on the party in the best position to prove its case. See, e.g., Alaska Dep’t of Envtl. Conservation v. EPA 540 U.S. 461, 494 n. 17, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (“Among other considerations, allocations of burdens of production and persuasion may depend on which party — plaintiff or defendant, petitioner or respondent — has made the ‘affirmative allegation’ or ‘presumably has peculiar means of knowledge.’ ” (citation omitted)). This principle of practicality has roots in common law. See United States v. Cont’l Ins. Co., 776 F.2d 962, 964 (11th Cir.1985) (“[we adhere] to the common law guide that the party in the best position to present the requisite evidence should bear the burden of proof’). And it just “makes sense to place at least some of the burden on the parties with the best access to the information.” . Saleem v. Keisler, 520 F.Supp.2d 1048, 1059 (W.D.Wis.2007). So “all else being equal, the burden [of proof] is better placed on the party with easier access to relevant information.” Nat’l Commc’n Ass’n Inc. v. AT & T Corp., 238 F.3d 124, 130 (2d Cir.2001). In the habeas context, the state is in the best position to prove that the limitations period has run. It will “usually be able to meet this burden by pointing to materials already before the district court, namely, by pointing [to] the petition itself,” or by presenting evidence that it can easily access from the prison. See Griffin, 308 F.3d at 653.
When questions about AEDPA’s statutory tolling arise, many of our sister circuits have employed a “burden shifting” framework requiring the petitioner to make a threshold evidentiary showing before shifting the burden of proof to the state. E.g., Allen v. Culliver, 471 F.3d 1196, 1198 (11th Cir.2006) (per euriam)(requiring petitioner to make a prima facie showing of delivery before shifting the burden to the state); Caldwell v. Amend, 30 F.3d 1199, 1203 (9th Cir.1994) (same); see also Grady v. United States, 269 F.3d 913, 916 (8th Cir. 2001) (“[u]nder our jurisprudence, then, a prisoner seeking to benefit from the prison mailbox rule must satisfy the requirements of Rule 4(c)”). Today, we follow their lead. If the state raises an AEDPA statute of limitations defense, the petitioner must come forward with some evidence to support his claim that, with the benefit of the Houston mailbox rule, 365 countable days have not elapsed from the time his state-court judgment became final to the time he filed his federal habeas petition. See Allen, 471 F.3d at 1198. After the petitioner makes this evidentiary showing, the burden shifts to the government to prove that the limitations period has run. See id.
The state argues that the burden shifting framework is inappropriate in cases like this one, where the court never receives the prisoner’s purported filing. The Fifth, Ninth, and Eleventh Circuits have each confronted this issue. See Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir.2001); Allen, 471 F.3d at 1198; Stoot, 570 F.3d at 671. Not one has abandoned the burden shifting framework under similar circum
In Huizar, the petitioner gave prison officials his state habeas petition for mailing. He wrote to the state court to get an update about two months later, but received no response. Twenty-one months later, he wrote again. In his second letter, he detailed his previous attempt to file his petition and requested that the court investigate the matter. One month later, the petitioner received the court’s response informing him that his petition had never been received. The petitioner then filed a supplemental petition, which the court denied. The case required the Ninth Circuit to decide for the first time whether the mailbox rule “applies if the petition is never received or filed by the court.” Huizar, 273 F.3d at 1222. The petitioner argued that the “period from the date he gave his first state petition to prison officials ... to the date it was denied ... does not count toward AEDPA’s one-year period.” Id. at 1223 (emphasis added). Agreeing that Houston’s “rationale applies with equal force” in cases where the court does not receive the purported filing, the Ninth Circuit held that “[a] prisoner who delivers a document to prison authorities gets the benefit of the prison mailbox rule, so long as he diligently follows up once he has failed to receive a disposition from the court after a reasonable period of time.” Id. at 1224. The court found as a matter of law that twenty-one months is “not an unusually long time to wait for a court’s decision,” but remanded the case to the district court to give the “state ... the chance to contest” whether the petitioner “handed over his petition” when he claimed to have done so. Id.
In Allen, the Eleventh Circuit applied the mailbox rule despite the fact that the petitioner’s federal notice of appeal was not received by the court. 471 F.3d at 1198. The court disagreed with the Ninth Circuit’s imposition of a diligence requirement because “[o]nce there has been a finding of fact that a timely notice of appeal was in fact delivered to the proper prison authorities ..., there is no room ... for the operation of a diligence requirement.” Id. It remanded the case, however, so the district court could “inquire further as to the actual facts concerning whether ... a notice of appeal was delivered to the prison authorities.” Id. In so doing, the Eleventh Circuit explained that “both Houston and Fed. R.App. P. 4(c)” suggest that “the burden of proof should be placed upon the state if Allen files a sworn declaration or notarized statement setting forth the date of deposit and attesting that postage had been paid.” Id. at 1198-99 & n. 2.
Notwithstanding the Ninth and Eleventh Circuits’ split on the “diligence” requirement, both recognize that Houston’s rationale supports placing the burden on the state to prove untimeliness. The Ninth Circuit appealed to the practical disadvantages and fundamental unfairness of putting the burden on the prisoner because “ ‘prison officials may have an incentive to delay prisoners’ court filings, and prisoners will have a hard time proving that the officials did so.’ ” Huizar, 273 F.3d at 1223 (quoting Houston, 487 U.S. at 270-71, 108 S.Ct. 2379). The Eleventh Circuit found those same factors persuasive. Allen, 471 F.3d at 1198 n. 2 (citing
We pause to address the state’s argument that our allocation of the burden in this way would require it to prove a negative. This argument has only superficial appeal. “Proving a negative” suggests requiring the state to do the impossible— that is, to exclude the petitioner’s delivery of his filing to a prison official from the realm of all possibility. But the state is not required to prove to a statistical certainty that the petitioner did not hand his document to a prison official on the date that he claims to have done so, and parties are required to make similar showings all the time in litigation. Indeed, the very merits of a statute of limitations defense depends on a showing that the complainant did “not” file a lawsuit in time. See, e.g., Kilgore, 519 F.3d at 1088-89 (“[A] heightened pleading requirement would be inconsistent with other aspects of the habeas scheme, which recognize the practical difficulties petitioners face in bringing their claims.”). There can be no doubt that the state is in a better position to show that a prisoner did not give his petition to a prison official for mailing than the prisoner is in to prove that he did. See Pliler v. Ford, 542 U.S. 225, 232, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (“[Timeliness] calculations depend upon information contained in documents that do not necessarily accompany the petitions.”). As the Houston Court emphasized, the pro se prisoner hands his petition “over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner’s assertions that he delivered the paper on a different date.” Houston, 487 U.S. at 275-76, 108 S.Ct. 2379. The state “will be the only party with access to at least some of the evidence needed to resolve such questions.” Id. It could, for example, produce “prison mail logs” or present the (likely non-adverse) testimony of the prison official who allegedly handled the prisoner’s mail. As for the pro se prisoner confined to his cell, “evidence on any of these issues will be hard to come by” and he can “only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay.” Id. This is “one of the vices the [mailbox] rule is meant to avoid.” Id.
The partial dissent (hereinafter the “dissent”) suggests that placing the burden on the state is particularly troublesome in this case because the prison policy forbade staff from handling mail for an inmate. (See post at 1020.) But this interpretation of prison policy is simply incorrect. The policy relied upon by the dissent, “All inmate mail will be processed through the institutional mailroom. No person, either staff or visitors, is permitted to bring in or take out any mail or article for an inmate,” is more naturally read to mean that mail coming in or out of the prison cannot be delivered through anything other than the institutional mailroom (i.e., inmates cannot directly give mail to visitors for placement into a mailbox outside of prison). Furthermore, another provision in the same section of the prison policy expressly provides, “At no time will an inmate/resident be involved in the collection, handling, or distribution of mail,” which necessarily means that staff are responsible for collecting or handling inmate mail, likely for security reasons. In any event, the state proffered no evidence to contradict Ray’s testimony that he was allowed to give outgoing mail to staff for delivery to the mailroom, which is entirely consistent with the above interpretation.
We recognize the need to identify some limiting principle. Otherwise, as the state correctly points out, a prisoner’s purported filing might be “properly filed” or “pending” for years without anyone knowing. To avoid this, we think the petitioner’s requisite evidentiary showing should be exacting. The prisoner’s sworn declaration should identify the who, what, when, where, how, and why of his alleged delivery to a prison official. And in cases where the purported filing is not received by the court, the petitioner must supply a sworn declaration attesting to these facts plus some other corroborating evidence. This “other evidence” can be documentary (for example, copies of the filing, post
We also reject the Ninth Circuit’s “diligence” requirement. We agree with the Eleventh Circuit that a prisoner’s lack of diligence cannot operate to unfile a filed document. See Allen, 471 F.3d at 1198. And requiring prisoner diligence is inconsistent with the spirit of the Houston mailbox rule. The whole point is that the prisoner is not at liberty to freely monitor his correspondences from mailing to delivery. How might a prisoner follow up with the court? With additional mailings? If prison officials are dead set on preventing a prisoner from filing court documents, they probably will interfere with the prisoner’s ability to diligently follow up on previously sent but not received filings, and if they are completely incompetent the petitioner’s follow-up mail will also likely not be delivered. Under either circumstance, the diligence requirement would nullify the rule. We do not accept results so inconsistent with Houston.
“[T]he potential for fraud does not justify obligating truthful prisoners to prove that they mailed their [court documents] when the prison authorities do not provide them with means for verification.” Dole v. Chandler, 438 F.3d 804, 813 (7th Cir.2006)(exhaustion of state grievance procedures in prisoner § 1983 case). Accordingly, we hold that in cases where the pro se prisoner’s post-conviction motion is not received, the petitioner must submit a sworn statement and some evidence to support his claim that he timely delivered the filing to a prison official, but once he satisfies this evidentiary showing, the burden shifts to the state to prove that his federal habeas petition is untimely.
C. The State Did Not Carry Its Burden
To summarize what we have accomplished so far, the Houston mailbox rule operates to “file” a pro se prisoner’s state post-conviction motion under AEDPA’s statutory tolling provision unless the state has clearly rejected the rule. This rule applies even if the filing is not subject to a deadline under state procedural rules and regardless of whether the petitioner’s purported filing is actually received by the court. But if the filing is not received, the petitioner bears the initial burden of identifying (by a sworn declaration in compliance with Fed. R.App. P. 4(c)) the who, what, when, where, how, and why of his timely delivery to a prison official and providing some additional corroborative evidence. Once the petitioner makes this evidentiary showing, however, the burden shifts to the state to prove that the federal habeas petition is untimely. With these legal issues settled, we now address the merits of Ray’s appeal.
The district court found that Ray was “not credible” and that he did not give Ms. Smith his section 974.06 motion on April 27, 2004. It made this determination despite Ray’s sworn declaration, live testimony, myriad supporting documents, and the corroborating testimony of two prison employees. The court, adopting the state’s argument, dismissed Ray’s testimony and evidence as products of an elaborate fraud designed by a “sophisticated” individual to circumvent AEDPA’s one-year limitations period.
We review the district court’s findings of fact for clear error. Bintz, 403 F.3d at 865. “A factual finding is clearly erroneous when, after reviewing the complete record, we are left with the definite and firm conviction that a mistake has been committed.” Holleman v. Cotton,
We begin by reviewing Ray’s evidence. Before the evidentiary hearing, Ray submitted a sworn declaration describing the who, what, where, where, why, and how of the events that made his filing timely under Houston. Ray swore, under penalty of perjury, that he gave his state post-conviction motion to Ms. Tamara Smith, an undisputed prison official, during “lunchtime” on April 27, 2004. He alleged that he gave Ms. Smith his motion “downstairs” in his prison unit and the two proceeded into the “social worker’s office” where she searched for, located, and provided him two documentary receipts. He also explained “why” he gave Ms. Smith his motion instead of using the prison mail system: his unit was on administrative confinement and the prisoners had no access to the regular mail system at the time. The dissent asserts, “It is difficult to believe that a prisoner could roam with that much freedom and be able to walk to the social worker’s office, but be unable to walk with the social worker to the centrally located mailbox or the prison mail-room.” (Post at 1026.) But this doubt is based purely on speculation about how Diamondback was configured, and what its specific administrative confinement policies were. Absent actual evidence, it is not implausible to believe that prisoners are entitled to access their social workers during periods of administrative confinement but not the mailroom.
The documents Ray provided corroborated his testimony. He kept and produced copies of the letters he allegedly sent Ms. Smith on June 1, 2004, September 9, 2004, June 15, 2005, and November 1, 2006. He offered a copy of the certificate of service that she allegedly pulled from a cabinet in the social worker’s office and gave him to sign after he gave her his post-conviction motion. The dissent emphasizes the discrepancy between Ray’s testimony that he filled out the certificate of service form, and other documents in which Ray refers to the certificate of service form as being filled out or signed by Ms. Smith. (See post at 1025.) But this minor discrepancy does not render Ray’s story “so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Anderson, 470 U.S. at 575, 105 S.Ct. 1504. The dissent argues that, “[h]ad [Ray] not changed his story, the State could have shown, through handwriting analysis, that Ray had completed the form.” (Post at 1025.) But it makes no difference who technically filled out that form, so long as it demonstrates
The typos in the document, and its lack of any distinguishing characteristics like a letterhead, were consistent with other official CCA documents, of unquestioned authenticity, that Ray introduced into evidence bearing the same defects. And no one testified that Ray’s certificate of service was phony. In comparing these forms, the district court “remain[ed] convinced that in both form and content the certificate looks more like the work product of a prisoner than a prison administrator,” and the dissent argues that we have improperly substituted our judgment for the district court’s. (See post at 1024.) Such substitution might be improper if the district court had a sound basis for arriving at this conclusion, such as actual testimony about the falsity of the form or the high grammatical standards to which prison forms adhere. But the district court’s only basis was its own eyeball comparison of the documents, and upon review of the documents on appeal, we conclude that they are not so inherently dissimilar that a factfinder could reasonably conclude that one is a fake, while the other is not.
Although the CCA receipt that Ms. Smith reportedly signed was not in the record, Ray offered an essentially uncontested reason for his failure to produce it: the prison library or mail system lost the document after he gave it to the library staff for copying. The only evidence remotely contradictory was the testimony that this might have been the first time during both Officer Nedbal’s and Ms. Martin’s tenure that a prisoner’s copy request had been lost. But as both Officer Nedbal and Ms. Martin confirmed, the prison would only know if the prisoner reported it to the library staff or some other prison official. So it is certainly possible that Ray’s requested copies were not the first to be lost. Even if they were, that fact does not establish an evidentiary basis for finding that Ray manufactured the CCA receipt or fabricated a fictitious tale about it. The state could have, but did not, put Ms. Smith on the stand to dispute Ray’s claims.
Finally, in addition to offering his own sworn testimony and corroborative documents, Ray presented the testimony of two prison employees, Officer Nedbal and Ms. Martin. While both admitted that they could not be certain that the documents that Ray claims to have been lost were actually lost or contained the original receipt that Ms. Smith allegedly signed, they also testified that prison policy required prisoners to describe in detail the documents they submit for copying and anything “suspicious” would be reviewed by a supervisor. Included on the list of “suspicious” requests were submissions with descriptions that did not match its contents. But no one flagged Ray’s submission for review. The testimony of both Officer Nedbal and Ms. Martin lent further credibility to Ray’s claim that he had, but lost, a CCA receipt signed by Ms. Smith.
The dissent defends at length the district court’s speculative basis for finding that the privilege correspondence receipt was entirely fabricated. (See post at 1026-33.) The following points of response are in order. First, it takes a speculative leap to go from the mere fact that Ray described the document in the disbursement request form in a lot of detail to the conclusion that he fabricated it. Second, the fact that librarians were not required to affirmatively verify the authenticity of documents to be copied does not create a reasonable inference that the document was therefore a fake or nonexistent. Third, the dissent joins the district court in critiquing Ray’s shortcomings as a pro se litigant, such as Ray’s less-than-perfect
Ray’s sworn declaration, live testimony, documentary evidence, and corroborating witnesses were more than sufficient to shift the burden of proving untimeliness to the state. The state’s evidence consisted of two things: Ms. Highley’s testimony and the Diamondback Correction Facility’s prisoner mail policy. Ms. Highley had no record of Ray purchasing postage during April 2004. But her knowledge was limited to that specific time frame. She could not rule out the possibility that Ray had retained postage from earlier purchases, borrowed stamps from other prisoners, or received postage from family members or friends who were not incarcerated.
The state did advance a number of arguments at the evidentiary hearing. First, it labeled Ray a “sophisticated” prisoner, with habeas expertise, because he had “boxes” of legal documents. Were these small shoe boxes or large moving boxes? Were they filled with distinct documents or multiple drafts or copies of only a handful unique ones? The record does not say. And unlike the dissent, we do not find it at all inconsistent that Ray did not understand the law governing federal habeas corpus when he wrote the state court on October 4, 2006, but then filed a petition in federal court purportedly demonstrating sophisticated knowledge about habeas on November 27, 2006. (See post at 1033-34.) It is not implausible that Ray would obtain a working knowledge of habeas in two months, especially after the need for such knowledge took on increased urgency when he learned that his state motion was never filed. It is also not at all unusual for pro se filings to contain sophisticated legal arguments, since prisoners routinely rely
Second, the state accused Ray of concocting a sophisticated scheme in October 2006 to assert a mailbox rule claim and avert AEDPA’s one-year time bar. According to the state, Ray made up the whole story about giving his section 974.06 motion to Ms. Smith and receiving two receipts (one signed) from her. He manufactured the certificate of service and the letters that he swears he sent Ms. Smith in order to support his bogus claim. Ray then pursued his mailbox rule strategy in federal court after the state appellate court denied his post-conviction motion. Finally, after we found that his constitutional rights had been violated during his criminal trial and remanded to the district court to give the state an opportunity to rebut Ray’s claim of timeliness, Ray tricked the prison staff into believing that they had copied and lost a CCA receipt signed by Ms. Smith.
What the state did not do, however, was present evidence in support of its theory. It did not produce Tamara Smith, nor deny her existence. It is certainly possible that, had she been called, Ms. Smith might have testified that she has no recollection of April 27, 2004. But it is equally likely that she might have flatly denied Ray’s account, or — worse for the state— confirmed it. Unfortunately, we can only speculate because the state did not produce her. Nor did the state produce any of Diamondback’s former employees to explain if and how the mail policy applied when prisoners were administratively confined, whether receipts were provided for outgoing legal mail, whether prisoners at the facility would have known that they were slated to be transferred to a different prison and the scheduled date of transfer, or whether Ray’s supporting documents were fraudulent. And the Diamondback prison mail logs? Not in the record. None of this evidence is in the record. The dissent agrees that the state did not present the above evidence, but notes that the “law does not require direct evidence to prove a fact — circumstantial evidence will suffice.” (Post at 1022; see also id. at 1022 n. 2 (state’s “inability to obtain direct evidence of Ray’s fraud does not insulate Ray from a finding that he is not credible”).) But the state did not even present circumstantial evidence upon which a fact-finder could have reasonably based his doubts about Ray’s testimony.
The dissent argues that, based on Ray’s testimony that he was in administrative confinement because “they was bringing Wisconsin prisoners back from Oklahoma back to Wisconsin,” the district court “could very reasonably conclude that Ray knew he was returning to Wisconsin while in confinement and that it was strange that he would decide to mail the motion to a Wisconsin court from Oklahoma....” (Post at 1024.) But even if Ray did know that he was returning to Wisconsin (and nothing shows he knew when he would be transferred), the fact that a prisoner would want to mail an important state post-conviction motion as soon as it was ready is not so incredible such that the district court could have reasonably discredited his testimony. It is not clear how placing mail destined for a Wisconsin address in a Wisconsin mailbox is so superior to placing it in an Oklahoma mailbox, such that any normal prisoner would obviously delay filing such a critical motion (and consequently, delay his potential release from prison) for an indefinite period of time, just for the opportunity to put that motion in a Wisconsin mailbox.
In sum, the state prevailed in the district court by branding Ray a sophisticated
We think Ray’s counsel hit the nail on the head in his briefs and at oral argument. The state’s argument requires us to believe that Ray knew in 2004 that the mailbox rule would apply to a section 974.06 post-conviction motion filed in Wisconsin, even when the motion is not received by the state court — issues that we decide today as a matter of first impression. In 2004, the only circuit authority for applying the mailbox rule to statutorily toll AEDPA were the cases decided by the Ninth Circuit. E.g., Caldwell, 30 F.3d at 1203. By that time, however, the “diligence” requirement was also firmly established in that circuit’s law. E.g., Huizar, 273 F.3d at 1222. But Ray does not argue that he diligently followed up with the state court during the two years that passed from the time he allegedly gave Ms. Smith his motion to the time he filed his second, supplemental motion. We must also believe that Ray foresaw that neither Ms. Smith nor anyone else from the Diamondback Correctional Facility would testify at the inevitable evidentiary hearing — surely Ray would have known that Ms. Smith’s or another CCA official’s testimony contradicting his claims likely would have provided evidence to support the district court’s dismissal of his petition as untimely. All of this might in fact be true, but without evidence there is no basis for believing any of it.
There is no dispute that the district court placed the burden of proof on Ray. This was error. Our review of the record convinces us that the district court’s error was not limited to the law, however. The state did not submit any evidence to contradict Ray’s testimony and evidence. And it certainly did not carry its burden of proving that Ray’s federal habeas petition was untimely. Yet the district court found that Ray had concocted an elaborate scheme to defraud the court and subvert AEDPA’s limitations period, and it concluded that Ray’s federal habeas petition was untimely filed. This conclusion lacks an evidentiary basis. We have a “definite and firm conviction” that the district court made a mistake; its findings are clearly erroneous. See Harris v. Reed, 894 F.2d 871, 878 (7th Cir.1990) (finding clear error where the district court “constructed] a trial strategy supporting [petitioner’s] counsel’s decision” not to call material witnesses at the petitioner’s trial); Gorham, 760 F.2d at 795 (finding clear error in district court’s rejection of evidence related to the petitioner’s waiver of his Miranda rights because the state failed to “mention[ ] [the evidence] at the suppression hearing” during the petitioner’s trial). The dissent believes that we have “isolated each piece of evidence and then one by one concluded that the individual inconsistency or implausibility is insufficient by itself to support the district court’s factual findings” (post at 1023 n. 4), but all we have done is demonstrate how the district court discredited each piece of Ray’s evidence based not on proof from the state, but on speculation. Speculation piled on top of speculation does not a factual finding make; zero plus zero still equals zero.
Ray’s constitutional rights were violated during his criminal trial. There is no dispute about that. After we remanded this case to the district court to decide whether Ray’s federal habeas petition was untimely, the state had over one year from the time our mandate issued on April 13, 2010 until the evidentiary hearing. This was more than enough time for the state to cull together evidence sufficient to refute Ray’s claim and make a persuasive case for untimeliness. The state apparently “made numerous phone calls to ... other CCA prisons still operating in Oklahoma” but
In concluding, we highlight an interesting irony in this case that we think is relevant to our decision to place the burden of proving untimeliness on the state. The state notes the difficulty it has had in obtaining evidence from and about CCA and Diamondback; it was met with unreturned messages for “months.” This is the state’s attorney’s office. Imagine the difficulty, and possible resistance, that a pro se prisoner will likely face under similar circumstances. To ignore this practical reality is to elevate form over substance, procedure over justice. Without a clear statutory command to that effect from AEDPA, and in light of the Supreme Court’s dictates in Houston, we reject the state’s request that we do so here.
III. CONCLUSION
For the above-stated reasons, we Reverse the district court’s dismissal of the petition for writ of habeas corpus, and Remand with instructions to grant the writ unless the state elects to retry the petitioner within 120 days of issuance of our final mandate or of the Supreme Court’s final mandate.
. Rule 4 "enables the district court to dismiss a petition summarily, without reviewing the record at all, if it determines that the petition and any attached exhibits either fail to state a claim or are factually frivolous.” Small v. Endicott, 998 F.2d 411, 414 (7th Cir.1993). Under this procedure, the government might not learn about the petition until a certificate of appealability is granted.
. "CCA” refers to Corrections Corporation of America.
. Ray has not invoked the doctrine of equitable tolling, which can toll AEDPA's one-year statute of limitations period, but demands that the petitioner demonstrate "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). The "threshold necessary to trigger equitable tolling is very high” and the doctrine applies only when "extraordinary circumstances” outside of the petitioner's control prevent timely filing. United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000). "Equitable tolling ... asks whether federal courts may excuse a petitioner’s failure to comply with federal timing rules, an inquiry that does not implicate a state court's interpretation of state law.” Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 2563, 177 L.Ed.2d 130 (2010).
. The dissent asserts that Ray’s testimony about postage was “inconsistent” with Ray’s affidavit attached to his habeas petition, and that this somehow meant that Ms. Highley's testimony "supported the district court's factual findings.” (Post at 1025.) But the assertion in Ray's affidavit that he gave Ms. Smith a disbursement request is not at all inconsistent with Ray’s testimony that he gave Ms. Smith a disbursement request and used stamps as postage. In any event, Ms. Highley's testimony simply doesn’t support the district court’s factual findings as discussed above.
Concurrence in Part
concurring in part, dissenting in part.
I.
Ray filed this habeas action in federal court on February 28, 2007. Opinion at 996-97. The district court denied Ray’s petition and he appealed to this court. This court held that Ray’s clearly established confrontation clause rights were violated when the state court admitted co-actors’ statements through a police detective’s testimony at trial. Ray v. Boatwright, 592 F.3d, 793, 798 (7th Cir.), as amended (Apr. 1, 2010). However, after holding that Ray’s constitutional rights had been violated, this court remanded the case to the district court to allow the district court to determine whether Ray’s habeas petition had been timely filed. The government had argued that Ray’s habeas petition had been filed after the one-year statute of limitations had run, but Ray had claimed in his habeas petition that the statute of limitations had been tolled because he had handed a state court petition to a prison social worker on April 27, 2004 for mailing. This court concluded that because the district court had dismissed Ray’s habeas petition on the merits, before giving the government “an opportunity to answer the petition and develop the rec
the government has not yet had a chance to challenge whether the documents Ray placed into the record are authentic; whether the state court petition was ever received by prison officials; whether the papers Ray filed were sufficient under state law to petition for post-conviction relief; or whether the individual to whom Ray allegedly gave his petition was a proper prison authority. Accordingly, we remand this case to the district court so that the government may have an opportunity to develop the record on this issue. If, after the record is fully developed, Ray’s petition is determined to be timely, this Court directs the district court to grant the petition for writ of habeas corpus unless the State chooses to retry Ray within 120 days.
Id. at 799.
On remand, the district court followed our directive. He held an evidentiary hearing at which Ray testified, along with three state employees (two from the prison library and another involved with prisoner accounts). The documentary evidence Ray presented in support of his claims of timeliness was admitted into evidence, as were prison policies from Diamondback. Following the evidentiary hearing, based on the testimony and documentary evidence, the district court concluded, as a factual matter, that the documents Ray presented were not genuine and that his testimony was not credible. The district court further found that Ray had not given Smith a state post-conviction motion on April 27, 2004 for mailing.
Notwithstanding that the district court did exactly what we directed, the court today holds that the district court’s credibility finding and its finding that Ray did not give the motion to a social worker on April 27, 2004 were clearly erroneous. Opinion at 1017. I disagree; the district court’s factual findings, far from being clearly erroneous, were compelled by contradictions and implausibilities in Ray’s story and the documentary evidence. Moreover, while I agree the prison mailbox rule applies (and thus I concur in Part II. A of the opinion), I disagree that the state bore the burden of proving that Ray had not given the purported state post-conviction motion to a social worker on April 27, 2004. However, contrary to the court’s conclusion that “after an evidentiary hearing, the district court placed the burden of proving timeliness on Ray,” Opinion at 995, the district court did in fact place the burden of proof on the state and then concluded that the state had met its burden. And that finding was not clearly erroneous. Accordingly, I concur in part and dissent in part.
II.
A. Ray bears the burden of proving tolling.
I agree that the state bears the burden of proving the affirmative defense of the statute of limitations. Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir.2004). But the state met this burden. The state established that Ray did not file his federal habeas petition until February 28, 2007, and that this filing was not within the one-year statute of limitations because Ray’s state conviction became final on or about September 10, 2003. The state further established that Ray had not filed a state post-conviction petition, which could toll the statute of limitations, until October 2007. Thus, the state proved that Ray’s habeas petition was untimely.
It is Ray who is asserting an exception to the statute of limitations and it is he who should bear the burden of proving
In holding that the state bears the burden of proving tolling, the court reasons that “ ‘all else being equal, the burden [of proof] is better placed on the party with easier access to relevant information.’ E.g., Nat’l Commc’ns Ass’n Inc. v. AT&T Corp., 238 F.3d 124, 130 (2d Cir.2001).” Opinion at 1008. But the court’s analysis ignores the remainder of what Nat’l Commc’ns said: “The general rule is that the party that asserts the affirmative of an issue has the burden of proving the facts essential to its claim.” Id. And “all else again being equal, courts should avoid requiring a party to shoulder the more difficult task of proving a negative.” Id. In this case, it is Ray who is asserting the affirmative of an issue, namely that he gave Smith a state post-conviction motion on April 27, 2004. The court is thus placing on the state the more difficult task of proving a negative — that Ray did not give Smith the post-conviction motion. Finally, I would note that proving the negative in this context is even more difficult because Ray claims he handed the petition to Smith in violation of the prison policy which stated: “All inmate mail will be processed through the institutional mail-room. No person, either staff or visitors, is permitted to bring in or take out any mail or article for an inmate.”
B. The district court held that the State bore the burden of proof.
After concluding that the state bore the burden of proof, the court concludes that the district court wrongly placed the burden of proof on Ray. Opinion at 1017. However, the district court’s holding on
C. The district court did not commit clear error in finding that Ray was not credible and in finding that he had not given Smith a state post-conviction motion on April 27, 2004, for mailing.
Even if the state bore the burden of proof, as this court and the district court held, Ray still cannot prevail because, as discussed below, the district court found, following an evidentiary hearing, that Ray’s testimony that he had given a state post-conviction motion to Tamara Smith on April 27, 2004, to mail was not credible. The court holds that the district court committed clear error in finding Ray’s testimony incredible and in finding that Ray had not given the social worker a state post-conviction motion on April 27, 2004, to mail.
As the court notes, we will reverse a district court’s factual findings only if they are “implausible in light of the record viewed in its entirety.” Gorham v. Franzen, 760 F.2d 786, 790 (7th Cir.1985). Moreover, as we recently explained in United States v. Smith, 668 F.3d 427, 430 (7th Cir.2012), “[s]pecial deference is given to the district court’s factual determinations because the district court had the opportunity to hear the testimony and observe the demeanor of witnesses.... ” Thus, because “[d]eterminations of witness credibility are entitled to great deference [they] ‘can virtually never be clear error.’ ” United States v. Cox, 536 F.3d 723, 729 (7th Cir.2008) (quoting United States v. Blalock, 321 F.3d 686, 690 (7th Cir.2003)).
Notwithstanding the extreme deference we owe the district court’s credibility and factual findings, the court concludes that the district court clearly erred. The court justifies its conclusion in four main ways: (1) by stressing all of the evidence the state did not present; (2) by stating that the district court merely branded Ray a liar; (3) by disagreeing with the district court’s reasons for finding Ray and his story not credible; and (4) by positing that the state’s theory that Ray manufactured the evidence is implausible, or at least that there is no evidence in the record for believing Ray manufactured the evidence.
1. Evidence not presented by the state.
I address first the court’s emphasis on the evidence the state did not present.
Nor did the state produce any of Diamondback’s former employees to explain if and how the mail policy applied when prisoners were administratively confined, whether receipts were provided for outgoing legal mail, whether prisoners at the facility would have known that they were slated to be transferred to a different prison and the scheduled date of transfer, or whether Ray’s supporting documents were fraudulent. And the Diamondback prison mail logs? Not in the record. None of this evidence is in the record.
Opinion at 1016.
It is true that the state did not present this evidence.
2. “Branding” Ray a liar.
In addition to highlighting the evidence the state did not present, the court reasoned that: “The state prevailed in the district court by branding Ray a sophisticated prison litigant and a liar, without any evidence to support those accusations.” Opinion at 1016-17. That is not so; the district court had ample circumstantial evidence, discussed at length below, to conclude that Ray was both a sophisticated prison litigant and a liar. Thus, contrary to the court’s portrayal, this is not a case of the district court merely branding Ray a liar.
It is true, though, as the Supreme Court has made clear, that a court may not “insulate his findings from review by denominating them credibility determina
3. The court’s disagreement with the district court’s reasoning.
As noted, the district court detailed a substantial number of the inconsistencies and implausibilities in Ray’s testimony and his evidence. In holding that the district court committed clear error, the court mentions these reasons but then presents its own view of this evidence, substituting its judgment for the district court’s. This is impermissible. United States v. Mancillas, 183 F.3d 682, 695 (7th Cir.1999) (“Factual findings are reviewed for clear error, and this Court will not substitute its judgment for that of the district court if there is support in the record for the trial court’s findings of faet.”)(internal citations omitted).
a. Ray’s impending transfer to Wisconsin.
For instance, in response to the district court’s reasoning that it was curious that Ray gave his Wisconsin state court motion
b. The Certificate of Service form.
Regarding the Certificate of Service form Ray claimed Smith had given him, the district court believed the form looked like the work product of a prisoner, noting: “The certificate bears no signatures, other than Ray’s, and appears on plain white paper with no heading or other indication that it is an official prison form. It contains no space for the year of service, and contains numerous typographical errors.” The court first notes that “no one testified that Ray’s certificate of service was phony.” Opinion at 1014. But as explained above, the state need not prove its case with direct evidence. The court then acknowledges that the form had typos and lacked any institutional markings, but excuses those problems by noting: “[t]he typos in the document, and its lack of any distinguishing characteristics like a letterhead, were consistent with other official CCA documents, of unquestioned authenticity, that Ray introduced into evidence bearing the same defects.” Opinion at 1014. But the district court considered the other forms and found that “[e]ven when compared to other official forms which lack an institutional heading and contain a grammatical error, the court remains convinced that in both form and content the certificate looks more like the work product of a prisoner than a prison administration.” The court rejects this added finding based on its own eyeball comparison of the documents, but here the court is again improperly substituting its own judgment for the district court’s.
c. Testimony concerning postage.
The state also provided evidence, through the testimony of Highley, calling into question Ray’s story that he gave Smith the state post-conviction motion. She testified that during the time that Ray supposedly gave Smith the state court motion for mailing, he had not purchased any postage. The court responds that the state’s evidence, through testimony of Ms. Highley, that Ray did not purchase postage during April 2004 did not establish that Ray did not provide Smith with the motion because Highley “could not rule out the possibility that Ray had retained postage from earlier purchases, borrowed stamps from other prisoners, or received postage from family members or friends who were not incarcerated.” Opinion at 1015. It is true that during cross-examination Highley testified that she could not rule out that possibility, but it was one piece of evidence the district court could consider in evaluating Ray’s story. And when considered in light of other record evidence, Highley’s testimony supported the district court’s factual findings. Specifically, Ray’s testimony concerning the postage for the state post-conviction motion was inconsistent with other evidence. Before the district court, Ray testified that he used stamps for postage on the state post-conviction motion he purportedly gave Smith, stating he had some and borrowed a few to make sure there was enough postage on it and then gave Smith a disbursement request in case there wasn’t enough postage. However, this testimony was inconsistent with the affidavit Ray had filed in February 2007 with his petition for habeas relief: In that affidavit, Ray stated
d. Diamondback’s policies.
The court also discounts the state’s evidence concerning the mail policies at Diamondback. First, the court reasons that nothing in the record explains whether the Diamondback policy that “[a]ll inmate mail will be processed through the institutional mailroom. No person, either staff or visitors, is permitted to bring in or take out any mail or article for an inmate,” applies to prisoners while administratively confined. Opinion at 1016. But the policy clearly states “[a]ll inmate mail.” Moreover, Ray’s testimony that he gave the motion to Smith because he could not go to the mailroom is implausible in light of his other testimony. Specifically, in explaining how he came to give the motion to Smith, Ray speaks of leaving his lunch table, going upstairs to his cell, bringing the envelope with the motion in it downstairs, and then going into a social worker’s office with her. It is difficult to believe that a prisoner could roam with that much freedom and be able to walk to the social worker’s office, but be unable to walk with the social worker to the centrally located mailbox or the prison mailroom.
The district court also found it “noteworthy that the CCA Corporate and Facility Policy governing Diamondback does not mention either a ‘Privileged Correspondence Receipt’ form or a ‘Certificate of Service By Mail’ form, but it does specify the form to be used when privileged correspondence is distributed to an inmate.” The court counters that while the prison mail policy does not mention the giving of a receipt for outgoing legal mail, the state did not produce Smith or some other prison official to prove that forms were not given. Opinion at 1015. But direct evidence is not required and Diamondback’s policy addressing the handling of privileged correspondence is circumstantial evidence that supports the district court’s factual findings. That policy stated that for incoming privileged correspondence “[a] staff member will distribute privileged correspondence to inmates using form 16-1D.” Conversely, the policy “AT THIS FACILITY” for mailing outgoing privileged correspondence provided that “[a]ll outgoing legal mail is logged in at the mailroom when it is received.” The district court could reasonably infer from the fact that the prison policy specified the use of a form to log incoming privileged mail and its directive that outgoing privileged mail be logged in the mailroom, that Diamondback did not give prisoners a Certificate of Service or a Privileged Correspondence Receipt form upon mailing privileged mail.
e. The Privileged Correspondence Receipt.
The court next attacks the district court’s findings concerning the Privileged Correspondence Receipt. The district
Far from being “essentially uncontested,” the state strenuously challenged Ray’s story and the district court found that “Ray’s evidence that [prison officials] lost his Privileged Correspondence Receipt form [are] unconvincing.” The district court explained that “[b]ased on the testimony, it is clear that the document Ray handed [Corrections Officer] Nedbal for photocopying could have been a document he created in an attempt to manufacture additional evidence to corroborate his claim that he handed his state post-conviction motion to Smith for mailing on April 27, 2004.” The district court further found “[t]he detail in which Ray described the document in the Disbursement Request form suggested a purpose beyond a simple request for a thirty-cent disbursement for photocopying.” And although the form requires “detailed instructions,” the librarian testified that “the detail required concerned the directions for copying, i.e., number of copies, one or two sides, legal or letter size — not the document to be copied.” The district court added: “Library personnel were not expected to determine the authenticity of the documents submitted for copying. They screened the material for appropriateness and to insure it did not relate to a different inmate.” Moreover, prison officials were not allowed to read legal materials — they mainly looked to ensure the name of the inmate matched the document. Based on this testimony, the district court found Ray’s claim that prison officials lost the Privileged Correspondence Receipt unconvincing. This finding was amply supported by the evidence.
In response to the dissent, the court states: “[I]t takes a speculative leap to go from the mere fact that Ray described the document in the disbursement request form in a lot of detail to the conclusion that he fabricated it.” Opinion at 1014. The court’s conclusion, though, flows from its misunderstanding of the record. Specifically, the court confuses the Disbursement Request form with the Photocopy Request form. A prisoner requesting a photocopy must complete both forms, but
TWO COPIES OF A CORRECTIONS CORPORATION OF AMERICA PRIVILEGED CORRESPONDENCE RECEIPT FORM SIGNED BY CCA SOCIAL WORKER SMITH, REGARDING MY PLACING MY 974.06 MOTION IN HER HANDS APRIL 27, 2004.
And Ray typed that detailed description of the content of the purported Privileged Correspondence Receipt form in the blank entitled: “Reason for Request.” The Disbursement Request form also required prisoners to state the “Individual Items Requested,” and here Ray merely typed “2 Copies of CCA Form.” Then in the Photocopy Request form, Ray described the form simply as: “2 copies of a CCA Mail Form Receipt/Please’ send the copies I have requested to me through the institutional mail. Thank you.”
That Ray included such detail (including that the purported Privileged Correspondence Receipt form was signed by Smith and stated that he placed the state court motion in her hands on April 27, 2004), in the Disbursement Request form when the form merely asked for the “Reason for Request,” and not in the Photocopy Request form, is significant for two reasons. First, and as the district court found, there is no reason to provide such detail in the Disbursement Request which merely served to request a thirty-cent disbursement for photocopying. Second, while the librarian was responsible for reviewing the Photocopy Request form to ensure it was filled out correctly and to screen materials for copying for appropriateness, no similar review of the Disbursement Request form was required; rather, according to the library procedures (contained in the record), the librarian’s responsibility was merely to authorize the Disbursement Request form indicating the correct amount charged and then route it appropriately. Officer Nedbal and Librarian Martin’s testimony at the evidentiary hearing confirmed these facts. And Officer Nedbal, who approved the Disbursement Request form, said he merely “glanced'at” the “Reason for Request.” Later, when the librarian screened the document Ray submitted for copying, the librarian would compare that document to the general description, i.e., “CCA Mail Form Receipt,” Ray put in the Photocopy Request form. Moreover, as Librarian Martin further testified, while she would merely be scanning the document and description contained in the Photocopy Request form, “[t]he person making the copies would have to read that in more detail.... ” Ray had previously worked in the library, so he knew how the forms were processed.
The court’s response to this is “the fact that librarians were not required to affirmatively verify the authenticity of documents to be copied does not create a reasonable inference that the document was therefore a fake or nonexistent.” Opinion at 1014. I agree. The mere fact that a librarian was not required to verify the authenticity of the document to be copied does not create an inference that the document was therefore a fake or nonexistent. But this fact does mean that the form submitted for copying might not have been the one described by Ray in the Disbursement Request form.
Then the question is whether the other evidence allows for the reasonable inference that the Privileged Correspondence
Moreover, it wasn’t just that Ray provided a detailed description of the supposed content of the purported Privileged Correspondence Receipt in the Disbursement Request form. Also Ray’s strange request to have this important form returned through the prison mail system, and then its inexplicable disappearance, create an inference that the form never existed. There are several additional pieces of evidence which, when taken together, further create a reasonable inference that there was no Privileged Correspondence Receipt. In fact, the totality of the evidence makes Ray’s entire story utterly implausible. First, as the district court explained, Ray had never mentioned the Privileged Correspondence Receipt in any of his documentation until April 18, 2010. And that was only after this court had granted his habeas petition on the merits, but remanded to the district court for a determination on whether the petition was timely. Yet Ray had specifically referenced the “Certificate of Service by Mail” form in his first purported letter to Smith on June 1, 2004, and in his “Motion for Protective Order Staying And Abeying [sic] Petitioner’s Petition for Writ of Habeas Corpus Filed Pursuant to 28 U.S.C. § 2254,” which he filed with his habeas petition on February 28, 2007. Ray even noted in bold that he had attached a copy of the Certificate of Service to his motion (and stated that it was signed by Smith). Ray also attached copies of the three letters he claims he sent to Smith asking her to confirm that she had mailed his motion to the state court. The district court aptly stated the absurdity of this: “Yet, he failed to even reference the one document [the Privileged Correspondence Receipt] which
There is more, though. The district court also found that Ray’s explanation for his failure to mention the “Privileged Correspondence Receipt” form earlier is inconsistent and not plausible. The district court explained that Ray had “testified that another inmate who was helping him had it in his possession when he was transferred to a different institution, and it wasn’t until later (he’s not sure when) that it was returned to him.” And Ray claimed he did not understand federal habeas law or the significance of the form, but Ray was well-versed in legal proceedings. The district court added that the fact that Ray “noted in bold in a motion filed contemporaneously with his petition that the ‘Certificate of Service’ was signed by ‘Tamara Smith,’ shows that he knew the importance of a document signed by someone on the prison staff.” And even if one accepts his testimony that he allowed one of his inmate helpers who was later transferred to a different institution to retain possession of such a crucial document, nothing prevented him from at least mentioning it in one of his previous filings.
Ray’s failure to mention the Privileged Correspondence Receipt form until after this court remanded the case to the district court is extremely suspect. But Ray’s excuse for not mentioning it earlier presents an even greater implausibility in Ray’s entire story than the district court recognized. Here, the district court misread the record when it stated that Ray had testified “that another inmate who was helping him had it in his possession when he was transferred to a different institution, and it wasn’t until later (he’s not sure when) that it was returned to him.” Actually, Ray testified on direct examination, under questioning from his own attorney, that once the Seventh Circuit’s opinion came down in April, he “started trying to reach out trying to find the inmate who was transferred from the institution with my receipt.” Ray further testified: “I was
The absurdity is even more obvious when the timing of everything is considered. Ray testified that the prisoner was transferred to another prison with the Privileged Correspondence Receipt form while helping Ray with his habeas petition, and that he (Ray) did not have the Privileged Correspondence Receipt at the time that he filed his habeas petition. Ray filed the habeas petition in February 2007, which means that under Ray’s version of events, he lost possession of the form sometime before February 27, 2007. It was April of 2010-more than three years later — when Ray “started trying to reach out trying to find the inmate.” Even if Ray began that search immediately (Thursday, April 1, 2010), that would have given Ray only 18 days to get the Privileged Correspondence Receipt back, since Ray supposedly dropped it off for copying on Sunday, April 18, 2010. Within those eighteen days, then, we are supposed to believe that Ray was first able to track down the other prisoner, even though that prisoner had been transferred more than three years previously. That by itself would be a challenge given that in the two years surrounding Ray’s litigation, Ray himself was transferred to five different prisons.
f. Ray’s knowledge of habeas law.
The final aspect of the district court’s reasoning that the court attacks is the district court’s finding that Ray’s assertion that he did not understand the law governing habeas corpus is not plausible. The court reasons that there was no evidence to support the district court’s branding Ray a sophisticated prison litigant. Opinion at 1016-17. The court first criticizes the district court’s statement that Ray had two or three boxes of legal materials when he was at Diamondback. The court then rhetorically asks: “Were these small shoe boxes or large moving boxes? Were they filled with distinct documents or multiple drafts or copies of only a handful unique ones?” before concluding “[t]he record does not say.” Opinion at 1015.
The court, though, gives short shrift to the district court’s other reason for rejecting Ray’s claim that he did not understand the law governing habeas corpus. Ray had testified before the district court that when he wrote the state court on October 4, 2006, to inquire on the status of the post-conviction motion, he knew nothing about federal habeas law and had talked to no one about it. The district court explained that “Ray’s initial filing in the district court came less than six months- after he claims he first became aware that his original state post-conviction motion was not filed in state court and that filing demonstrates his ‘detailed knowledge of not only the one-year limitation period for federal habeas petitions, but also the mailbox rule and the rules governing tolling of the one-year period.’ ”
In fact, though, the record is even more damning than what the district court found. While Ray filed his habeas petition in February 2007, Ray dated the signature line of the pro se Petition for Protective Order Staying and Abeying (sic) Petitioner’s Writ of Habeas Corpus, which accompanied his habeas petition, November 27. (And since Ray filed the Petition in February 2007, November 27 must be November 27, 2006.) Ray signed that document less than two months after he sent the letter to the state court inquiring about his supposed missing post-conviction motion. In Ray’s pro se Petition for Protective Order Staying and Abeying (sic) Petitioner’s Writ of Habeas Corpus, Ray demonstrated his extensive knowledge of habeas law, including the one-year statute of limitations, the mailbox rule, and tolling principles. (Attached as Appendix E is that pro se petition so that there is no question of the depth of Ray’s knowledge.) Thus Ray clearly knew the importance of showing that he had given the state post-conviction
4. The state’s theory that Ray manufactured evidence.
The court’s last main rationale for rejecting the district court’s factual findings seems to be its view that the only way to find Ray’s testimony not credible is to believe that Ray “concoet[ed] a sophisticated scheme in October 2006 to assert a mailbox rule claim and avert AEDPA’s one-year time bar.” Opinion at 1016. The court reiterates that view later, stating: “The state’s argument requires us to believe that Ray knew in 2004 that the mailbox rule would apply to a section 974.06 post-conviction motion filed in Wisconsin, even when the motion is not received by the state court — issues that we decide today as a matter of first impression.” Opinion at 1017.
The state’s theory requires nothing of the sort. Rather, all we need to believe is that on October 4, 2006, Ray knew that he could not pursue habeas relief unless he had given a state post-conviction motion to a prison official within the one-year statute of limitations.
Moreover, contrary to the court’s conclusion that “without evidence there is no basis for believing” Ray concocted a scheme to avoid the statute of limitations, there is ample circumstantial evidence that Ray invented the April 27, 2004, mailing and the “loss” of the “Privileged Correspondence Receipt.” Much of this evidence was discussed above. But there is still more. For instance, the only document Ray had notarized was the October 4, 2006, letter he sent to the Wisconsin state court inquiring on the status of the motion he supposedly gave Smith in April 2004. When asked why he notarized the letter, he said “Because it’s a court document — it’s going to the court. It’s like a court document.” But this was merely a letter and he wanted it notarized. Yet he didn’t attempt to have the state post-conviction motion notarized. His explanation makes no sense and the existence of the notary seal on the October 4, 2006 letter to the Wisconsin court shows that Ray was completely aware of the significance of that letter and this supports the factual finding that Ray manufactured documentation to support a non-existent state post-conviction motion.
Additionally, the district court reasoned that Ray’s lack of diligence in following up with the state court clerk about the post-conviction motion he purported to file in April 2004, until October of 2006, also supports the idea that Ray made up the supposed April 27, 2004, motion. I agree. Had Ray truly filed a motion with the state court in April 2004, he would not have waited more than two years to inquire on its status. See Allen, 471 F.3d at 1198 (“The district court may take into account any and all relevant circumstances, including any lack of diligence on the part of Allen in following up in a manner that would be expected of a reasonable person in his circumstances, in deciding whether the notice was delivered to the prison authorities.”).
Moreover, the district court found implausible Ray’s claim that he sent three letters to Smith in an effort to confirm she mailed the motion to state court. Besides noting that there was no way to tell from the appearance of the letters whether Ray mailed them, the district court also found it curious that Ray would retain a copy of a letter he supposedly sent to Smith only a month after he handed her his state motion, but did not keep a copy of the motion itself. The district court added that it was also curious that Ray stated in an affidavit that he also wrote Diamondback regarding his lost property on the same dates that appear on his letters to Smith, but Ray couldn’t remember if he kept a copy of those letters. The district court was right that these inconsistencies all rendered Ray’s story questionable. It is also unbelievable that even though Ray heard nothing from Smith in response to his purported June 1, 2004, letter, he would continue to write to her on September 9, 2004, and then even after he had not heard anything from Smith for over a year, he wrote to her a third time on June 15, 2005. And, then, after writing to the state court and supposedly learning for the first time that the motion was not filed, Ray claimed again that he wrote to Smith — from whom, under his version of events, he had never received a response — and also the prison warden, to find out what happened to his petition.
In the end, yes, we have to believe that Ray concocted a story — but the evidence taken as a whole overwhelmingly supports, perhaps even compels, that finding. It is also not nearly the sophisticated scheme the court thinks it is and it also didn’t have to start back in 2004, but rather could have been hatched just a few months before Ray turned to federal court for habeas relief.
III.
As noted, the court holds that the district court’s factual findings (that Ray was not credible and that Ray had not given Smith a state post-conviction motion for mailing on April 27, 2004) were clearly erroneous. In reaching this conclusion, though, the court gives only passing mention to many of the inconsistencies and implausibilities in Ray’s story and his supposedly supporting documentation which the district court relied upon to justify its findings. But contrary to the court’s attempts to downplay those inconsistencies and implausibilities, they all did call Ray’s story into question. And two aspects of Ray’s story were so unbelievable that alone they justify the district court’s factual findings: (1) Ray’s claim of ignorance of habeas law on October 4, 2006, when he wrote to the state court, when just the next month he signed a habeas petition that detailed habeas law, the statute of limitations, the prisoner mailbox rule, and
While I believe these two implausibilities alone are sufficient to affirm the district court’s factual findings, there were many other inconsistencies and implausibilities relied upon by the district court in reaching its finding that Ray was not credible and that Ray had not given a state post-conviction motion to Smith on April 27, 2012. The court downplays or ignores these, but taken together they all demonstrate that the district court’s finding that Ray was not credible and that Ray had not given Smith a state post-conviction motion for mailing on April 27, 2004 was well-supported by the evidence. See, e.g., Anderson, 470 U.S. at 575, 105 S.Ct. 1504 (“Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.”).
I regret consuming everyone’s time in laying out the minutiae of the record. But given the court’s conclusion that the district court committed clear error in finding Ray incredible and in finding that he did not give Smith the state post-conviction motion on April 27, 2004, it is necessary to detail the many, many inconsistencies, contradictions, and omissions in Ray’s story, in addition to highlighting the sheer implausibility of several aspects of Ray’s story in light of the record. As these details show, Ray’s problem with the district court was not that the district court branded him a liar. Rather, Ray’s problem is that the district court reviewed all of the evidence and heard Ray testify in person and after this evidentiary hearing found that he was a liar. This conclusion was not based on improper speculation, but on the totality of the reasonable inferences flowing from the record evidence.
APPENDIX A
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. The court responds that the more natural reading of this rule is that no one can take mail into or out of the prison. Opinion at 1011. But in addition to specifying that the mail must be processed through the mail-room, the procedures also discuss the "posting of outgoing mail,” stating that: "OUTGOING MAIL WILL BE DELIVERED FROM THE INMATE/RESIDENT TO THE FACILITY BY THE FOLLOWING PROCEDURE: The mail clerk will pick up the mail from the centrally located mail box between 8:00 a.m. and 8:30 a.m. Mail will be delivered to the post office the same day it is received by the mail clerk in the Diamondback Correctional Facility mail room.” The policy reiterates this point stating later: "THE PROCEDURE AT THIS FACILITY FOR COLLECTION OF MAIL IS AS FOLLOWS: Mail will be collected from the centrally located mail box Monday through Friday, (excluding holidays) between 8:00 a.m. and 8:30 a.m.” See also Policy 16-1 ("Outgoing mail will be posted within 24 hours of the time the mail was turned over to the facility by the inmate/resident, ...” (emphasis added)). Taken as a whole, these procedures clarify that prisoners must deliver outgoing mail to the "facility,” and not a staff member, via the centrally located mailbox. No exception is listed for those in administrative confinement even though the policy includes a list of "ADDITIONAL PROCEDURES AT THIS FACILITY” related to mail collection.
. Diamondback has been closed and the state’s attempts to speak with former Diamondback staff have proved futile. Ray's attorney indicated at oral argument that they have not made any efforts to find Smith because it is not their burden. While I disagree with that proposition, see supra at 1019-20, even assuming the state bore the burden of proof, its inability to obtain direct evidence of Ray's fraud does not insulate Ray from a finding that he is not credible.
. The court responds that “the state did not even present circumstantial evidence upon which a factfinder could have reasonably based his doubts about Ray’s testimony.” Opinion at 1016. If the court’s point is that most of the evidence contradicting Ray's testimony came from Ray himself (and not the state), that objection is misplaced. See Marantz v. Permanente Medical Group, Inc. Long Term Disability Plan, 687 F.3d 320, 336-37 (7th Cir.2012) ("We will not disturb the district court’s factual findings after it has weighed the evidence on both sides unless, after considering all of the evidence, this court is left with the definite and firm conviction that a mistake has been made.”)(emphasis added). If, on the other hand, the court believes that the evidence presented at the hearing does not support a reasonable inference that Ray lied about giving Smith a post-conviction motion, the court is wrong. As discussed below, Ray's testimony, the prison officials’ testimony, the Diamondback policies, and the extensive documentation Ray presented to prove his case, taken together created a reasonable inference that Ray never gave Smith a post-conviction motion for filing.
. The court’s response to the dissent illustrates two further flaws in the court's review of the district court’s reasoning: First, the court quotes Anderson out of context to reason (hat (what the court perceives as) minor inconsistencies or implausibilities in Ray's story cannot support the district court’s factual finding because they are not “so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Opinion at 1013. But in Anderson, the Supreme Court was not discussing what was required to support a factual finding; rather, the Supreme Court was explaining when a credibility determination could be overturned as clearly erroneous. Had the district court found Ray credible, the evidence might not reach the “so internally inconsistent or implausible on its face” threshold to conclude that the district court committed clear error. But in this case the district court found Ray incredible and thus the court’s reliance on Anderson is misplaced. Second, in concluding that the inconsistencies and implausibilities in Ray’s story and his evidence cannot support the district court’s factual finding, the court isolates each piece of evidence and then one by one concludes that the individual inconsistency or implausibility is insufficient by itself to support the district court’s factual findings. See, e.g., Opinion at 1014-15. However, no one piece of evidence must support a factual finding; rather the court must take the entire record as a whole. Cf. Huff v. UARCO, Inc., 122 F.3d 374, 385 (7th Cir,1997)(discussing standard in a discrimination case). Thus, that individually some of the vagaries are minor is of no moment; the court should have considered all of the inferences flowing from the evidence in total. And in total, the evidence was more than sufficient to support the district court's factual findings that Ray was not credible and that Ray had not given a state post-conviction motion to Smith to mail.
. The court responds that any normal prisoner would want to file such a critical motion without delay, to avoid any delay in his potential release from prison. Opinion at 1016-17. If such an inference is reasonable, then it is even more reasonable for the district court to have inferred that had Ray truly filed a motion with the state court in April 2004, he would not have waited more than two years to inquire on its status.
. Because the court relies on its own eyeball comparison of the two documents to reject the district court’s findings, attached as Appendix A is a copy of the Certificate of Service form Ray claims he received from Smith. This form appears to have been created on a typewriter and as the district court noted, it contains nothing to indicate it is an official prison document and it contains typographical errors. A reasonable inference from the appearance of this form is that it was not a prison form provided by Smith, but rather one created by Ray. This inference becomes stronger when the Certificate of Service form is placed next to some of the letters typed by Ray which the district court also admitted into evidence and which are included as Appendices B and C. (For instance, note the use of "[]" instead of the more appropriate "()" in all of the documents.) Before the district court, Ray attempted to overcome the inference that he had created the Certificate of Service form by tendering a document he had received from the New Lisbon, Wisconsin prison (not from the CCA, as the court states). Opinion at 1013-14. This New Lisbon form, reprinted as Appendix D, also has several
. The court responds by first stating this is a minor inconsistency and then quoting Anderson, Opinion at 1013. But, as discussed above, Anderson is quoted out of context, see supra at 1023 n. 4, and while it is a minor inconsistency, it adds to the other inferences supporting the district court's factual finding that Ray’s testimony is incredible. The court also notes “it makes no difference who technically filled out that form, so long as it demonstrates that Ray had asked Ms. Smith to mail out his motion.” Opinion at 1013-14. It is true that it wouldn't matter who filled out the form if it were truly given to Ray by Smith in response to his request to mail out the motion. But that Ray’s story changed does support an inference that he is lying when he claimed that Smith had given him that form.
. The court responds that without knowing how Diamondback was configured, this is pure speculation. Opinion at 1013. But Ray testified that when he approached Smith to give her the post-conviction motion, he had to wait because she had to take another prisoner "somewhere in the institution.” Based on this testimony, it is reasonable to infer that Smith could have likewise taken Ray to the central mailbox or mailroom.
. Besides working in the library and thus knowing the process for making copies, Ray also testified that Librarian Martin was not there on the day he brought the forms to the library — only Officer Nedbal was, and he put the paperwork in a basket.
. That Librarian Martin might talk to Ray about the copy request if he handed it to her
. The court’s response: This evidence “is simply insufficient to jump to the conclusion that the receipt must therefore not exist.’’ Opinion at 1015. But Ray’s failure to ever mention the supposed Privileged Correspondence Receipt through years of litigation and the fact that his first mention of the form came only after this court held that his constitutional rights had been violated, creates a very reasonable inference that there was no such receipt in the first instance. This is not jumping to conclusions but using inferential reasoning from the evidence presented. See United States v. An Article of Device, 731 F.2d 1253, 1262 (7th Cir.1984) (“[T]he reasoning process normally begins with known facts which form the basis for inferred facts from which further inferences can be drawn. So long as the finder of fact is reasonably certain of a preliminary inference, it is not unreasonable to use that inference as the basis for further reasoning.”) (internal quotation omitted); Wisconsin Memorial Park Co. v. C.I.R., 255 F.2d 751, 753 (7th Cir.1958) (“Frequently the ultimate issue is resolved as the result of drawing inferences from the evidence received during the trial. Trust in inference is simply the belief that if there is a firm basis for the starting point the derived judgment is acceptable. The difference between speculation and inference lies in the substantiality of the evidence constituting the premise. Inductive reasoning claims the premises constitute some evidence for the conclusions and in law we speak in terms of the probability and likelihood that the premises buttress the conclusions.”) The court’s response also wrongly considers this fact in isolation, without reference to the several other facts which similarly created an inference that there never was a Privileged Correspondence Receipt.
. The court concludes that it is not unusual that Ray would attempt to track down the Privileged Correspondence Receipt himself, rather than elicit help from his attorney, stating "attorney-client communication is neither quick nor easy when the client is in prison and can be transferred at any time with little notice if any to the attorney, further delaying communication." Opinion at 1015. That explanation might make sense if Ray were attempting to gather evidence located within the same prison. But, as noted above, Ray needed to track down a prisoner who had been transferred to another prison more than three years previously. If communications between a prisoner and his attorney are neither quick nor easy, as the court infers, it is entirely reasonable to infer that an overly eager prisoner would solicit help from his attorney to track down a prisoner in another unknown prison (also subject to a transfer to a new prison), because communications between such prisoners would be even slower and more difficult.
. In April 2004, Ray was transferred from Diamondback to Green Bay and then in May 2005 from Green Bay to Dodge; followed by a transfer from Dodge to Columbia and then in February 2006, from Columbia to New Lisbon. Other than Diamondback, the other prisons were all located in Wisconsin.
. The court admits that this conclusion is "not without force,” but then says that "unfortunately for the state, it did not actually produce any evidence to support it.” Opinion at 1015. However, this conclusion is proven by Ray’s testimony. Specifically, as detailed above, Ray testified that once the Seventh Circuit's opinion came down in April, he “started trying to reach out trying to find the inmate who was transferred from the institution with my receipt.” Thus, according to Ray's own testimony, he neither had the purported Privileged Correspondence Receipt form on April 1, nor knew the location of the prisoner who supposedly had it. And then Ray claimed he sent that form for copying on Sunday, April 18, 2010. Thus, under Ray’s own version of events, as he testified to at the evidentiary hearing, the Privileged Correspondence Receipt form was retrieved within eighteen days. It is more than reasonable to infer from the sheer implausibility of this timing that Ray made the whole thing up, especially in light of the delay and difficulty prisoners face when trying to communicate with their own attorneys, as the court itself infers. See Opinion at 1014-15.
. The court states that "[i]t is not implausible that Ray would obtain a working knowledge of habeas in two months, especially after the need for such knowledge took on increased urgency when he learned that his state motion was never filed.” Opinion at 1015. While it might be plausible that Ray obtained working knowledge of habeas law in two months, it is equally plausible to infer that Ray had that knowledge in October of 2006 when he wrote the letter to the state court. And given the totality of the evidence in this case indicating that Ray concocted the entire story about giving the state post-conviction motion to Smith, this inference was more than reasonable.
. There was also no need for Ray to foresee this court's holding that the mailbox rule applied to a state post-conviction motion because Ray wasn’t relying on that theory but on the theory of equitable tolling. In this regard, the court is also wrong to say: "But Ray does not argue that he diligently followed up with the state court during the two years that passed from the time he allegedly gave Ms. Smith his motion to the time he filed his second, supplemental motion.” Opinion at 1017. Actually, though, Ray did argue that he had been diligent. In the affidavit he filed along with his pro se habeas petition, Ray stressed that he had written Smith on June 1, 2004, September 9, 2004, and June 15, 2005, and then again after he learned his state court motion had not been filed; he also added that he had then also written the prison warden. Ray then concluded that he "need only show that an 'extraordinary circumstances’ (sic) beyond control of prisoner for application of equitable tolling to obtain the necessary federal habeas review and he demonstrated due diligence in trying to rectify the matter.” It was only after counsel was appointed that the theory of equitable tolling was abandoned. But equitable tolling was Ray’s theory back in October 2006 when he sent the letter to the state court inquiring on the status of his post-conviction motion. This also explains why Ray would bother to send a letter to Smith and the warden after he "learned” that the state court had not received his letter — to bolster his claim of diligence.
. In support of his Motion for Protective Order, Ray also submitted an undated affidavit, which argued that there were "extraordinary circumstances” beyond control of prisoner for application of equitable tolling to obtain the necessary federal habeas review. This affidavit also illustrated Ray’s knowledge of the tolling principle.
. Not only does Allen support the conclusion that it is reasonable to infer that Ray never gave Smith a state post-conviction motion from the fact that he didn’t inquire on the filing for more than two years, the court's own reasoning demonstrates that this is a reasonable inference. In explaining why a prisoner might mail a state post-conviction motion from Oklahoma to a Wisconsin court, even though he knew he was being transferred to Wisconsin, the court reasons that a normal prisoner would not delay filing “such a critical motion (and consequently, delay his potential release from prison), for an indefinite period of time,....” Opinion at 1016. Similarly, it is reasonable to infer "a normal prisoner” would not delay inquiring on such a critical motion for more than two years.
. The court characterizes Ray’s failure to notify the state court of his prison transfers as "Ray’s shortcomings as a pro se litigant” Opinion at 1014, which is “simply insufficient to jump to the conclusion that the receipt must therefore not exist.” Opinion at 1015. But under Ray's version of things, he was concerned enough about the status of his motion to ask other prisoners what to do. And it is more than reasonable to infer from that fact that even a pro se litigant would at that point contact the court to notify the court of his prison transfers — not as a matter of civil procedure, but to assure that he received no
. In both his letter to the warden and his fourth supposed letter to Smith, Ray stated that he had given Smith the postconviction motion on April 29, 2004. In all of the other documents, and in his testimony before the district court, Ray stated he had given Smith the motion on April 27, 2004.
. Grepke v. General Elec. Co., 280 F.2d 508, 511-12 (7th Cir.1960) (quoting Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946)) (" 'It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” ’.)