*1 993 too, 3664(h), losses is affirmed § and there is the crime victims’ victim,” 18 U.S.C. must except judge in case. So there that the determine how only one defendant Amy’s for what the much to subtract losses to statutory authorization no is payments here. reflect of restitution she has judge did district received other cases. The order of res- in in a case such that contribution We add titution is vacated and the case remanded extraordinarily clumsy, be this would a redetermination of the amount of all that in all likelihood considers when one defendant; restitution owed from whom restitution defendants require, will besides the subtraction we Amy Vicky are sought by being mentioned, just a determination whether negligible of them have and most prison uploaded any Amy’s of or the defendant On to our defendant. to contribute assets images. The defendant will not be Vicky’s considerations practical of the basis both from other permitted to seek contribution authorization, statutory and the absence involving defendants convicted of crimes in another case involv- Circuit Second images girls. of the two And pornographic per- that contribution is ing Amy held Vicky Amy permitted will not be the defendants from whom missible unless intervene in the district court. sought are defendants contribution seeking defendant case as the the same Part, Part, Affirmed Vacated Aumais, v. United States contribution. Remanded Instructions. at 155-56. supra, 656 F.3d judge ordered the defendant The district wage at prison from his pay restitution (We said that year. have
a rate of $100 payable of restitution before
the schedule prison is released from
the defendant the Bureau of Prisons left to
should be determine, Sawyer, States v. United RAY, Petitioner-Appellant, Elliot D. Cir.2008) (7th issue on F.3d — an v. divided, see, e.g., the courts are which Lemoine, v. 546 F.3d United States CLEMENTS, Respondent- Marc (9th Cir.2008) gov 1048 and n. —but Appellee. cross-appealed from the
ernment has not No. 11-3228. sentence.) make little sense to It would to sue other defen permit the defendant Appeals, United States Court tiny of the amount of dants for shares Circuit. Seventh True, there’s money paying. that he is Argued April 2012. winning lottery always a chance of his money, all of Decided Nov. coming otherwise into which subject being restitutioned would be him. But the chance is not
away from enough justify the bother
large rights to hundreds
awarding contribution enough in inmates. We have
mate suits as is. The defendant’s
To summarize: The calculation of
sentence is affirmed. *2 untimeliness,
forth an affirmative case of rule, applying the mailbox supported position which his state *3 post-conviction “properly motion had been purpose tolling filed” for the of AEDPA’s state period. limitations The asserts apply mailbox rule does not because rule under which procedural the state not have a challenged his conviction does if requirement, and even timeliness apply, petitioner— mailbox rule does proof, not the state —bears the burden of carry not his burden. and did disagree adopt the rule set forth We (argued), Attorney, T. Dulani Jeetander majority our by the of sister circuits LLP, Pittman Pillsbury Winthrop Shaw governs mailbox rule whether DC, Petitioner-Appellant. Washington, post-conviction “prop- document is state Marguerite M. Lloyd, D. Katherine AEDPA limitations erly filed” under the Attorneys, Office (argued), Moeller rejected clearly unless the state has period General, Department Attorney Wisconsin clearly not re- it. Because Wisconsin has Madison, Justice, Respondenb- forWI it, jected applies the mailbox rule this Appellee. case. BAUER, MANION, and Before found, we address the second Having so
WILLIAMS, Judges. Circuit issue, which who has the burden of is WILLIAMS, Judge. Circuit pro prisoner’s filing se proof. Where court, the habeas by not received the state first federal habeas Ray’s In Elliot Don some evidence to petitioner produce must constitutional found that his appeal we timeliness, support his sworn statement intro- violated when state rights were made, burden showing and if this by made in- out-of-court statements duced prove to the state to untimeliness. shifts testify at his murder who did not dividuals case, to this we find Applying these rules the state give But we remanded to trial. present competent failed to a defense that that the state to assert opportunity testimony was un- contradicting Ray’s motion post-conviction state evidence I), Boatwright (Ray timely. Ray showing timely v. that he and documents (7th Cir.), amended 798-99 F.3d post-conviction motion to a gave his state 2010). remand, and after an On (Apr. mailing. The district prison official for court evidentiary hearing, the district clearly finding of untimeliness was court’s timeliness on placed proving the burden ignored this lack of erroneous because timely give Ray, finding that he did nothing more evidence and was based motion to a post-conviction state doubt, al- conjecture speculative than peti- and dismissed the mailing, official for conclusory arguments to lowing the state’s tion. reverse and carry day. We therefore grant Ray’s instructions remand with that the district appeal, Ray argues
On the state elects to petition unless habeas proof by placing erred burden court days. him within 120 retry him, put the state requiring appellate ignored I. BACKGROUND The state claim, Phillips’s decided Detective tes- in our thoroughly As we detailed more timony hearsay was not because it was not Ray was convicted in previous opinion, prove offered to the truth of the matter on state counts of reckless Wisconsin asserted, and affirmed conviction. homicide, crime, recklessly party to Supreme Court of Wisconsin denied I, safety endangering the of another. Ray’s petition for review on June at 794-96. His conviction result- 592 F.3d retaliatory shooting ed from a on 29th sought then Milwaukee, Street Wisconsin that left relief under Wisconsin Statute section *4 eleven-year-old girl an dead and two other provides: 974.06. That statute “After the trial, injured. Ray’s At criminal people appeal postconviction remedy time for Phillips the state called Detective Daniel ... expired, prisoner custody has a ... signed Ray gave describe a statement that claiming right upon be released during police. his interview with The de- ground that imposed the sentence was primarily tective Ray’s read from state- may violation of the constitution ... U.S. ment. But he also recounted his own out- move the court which imposed the sen- informing Ray of-court statements vacate, tence to set aside or correct the implicated Ray two co-actors had in the 974.06(1). § sentence.” Impor- Wis. Stat. shootings. Phillips Detective testified: tantly, a section 974.06 motion for relief “is Ray was then confronted with numerous action, part of the original criminal is not a by they statements made co-actors that separate proceeding may be made at present were shooting [at the] on 29th 974.06(2). § any Ray’s time.” Id. request Ray. Street and so was for relief under section 974.06 was eventu- Ray then stated stupid niggers “those ally 16, denied on October 2006. they shouldn’t be talk talking and can’t Ray separate pro petitions filed two se for me.” for writ of corpus habeas the federal by When confronted with statements 28, February district court on 2007. The Myles] Ray shooting [Miriam court summarily district dismissed nine-millimeter on 29th in a Street [and] petitions, exercising authority its under by Sylvester statement ... Townsend 4 Governing Rule of the Rules Section Ray pistol[,] Ray had a .45-caliber Cases,1 finding 2254 did not set gun then said “tell me which killed the cognizable forth a constitutional or federal girl you and I’ll tell everything.” law claim. But granted Ray’s the court Myles Sylvester Neither Miriam nor request for a certificate appealability during Ray’s Townsend testified trial. resolve confrontation claim. clause But defense object appeal, counsel did not to this On pre- we held “the evidence incredibly damaging testimony. by After his sented prosecution delivered to the conviction, Ray co-actors, five jury raised issues on direct statements named appeal, including cross-examination, a claim that accusing Detective available for Phillips’s testimony right very violated his to be crimes with which he against confronted with the witnesses him. charged” stood and “the evidence was a Endicott, 411, (7th Cir.1993). 1. Rule 4 "enables the district court to dismiss 998 F.2d petition summarily, reviewing without procedure, government might Under this all, petition record at if it determines that the not learn about the until a certificate any attached exhibits either fail to state a appealability granted. factually claim or are v. frivolous.” Small pro- regarding Ms. mation from right Ray’s constitutional clear violation I, 2004 and cessing F.3d at 795- of his mail. On June of confrontation.” rehearing 9, 2004, en wrote letters to petitioned September The state banc, defense. We verify a timeliness her to that she raising asking Ms. Smith 1, 2010 we petition, but motion to the court. denied section 974.06 sent his remanding this opinion an amended issued third letter on June then wrote her a He gov- “so that the the district court case to requesting the same information. to de- opportunity have an may ernment Ray, after not hear- Finally, according on this issue” because velop the record Smith, he sent a nota- ing back from Ms. ... sup- evidence “no record contained clerk of court letter to the Milwaukee rized un- government’s assertion” port the status 2006 to determine on October at 799. timeliness. Id. motion. The court informed of his that it had no record of his remand, court held the district On filed, immediately being ever so he motion pro- how to to decide status conference motion, supplemental pro se additional submitted request did not The state ceed. *5 any court of the court denied on October alert the district which discovery or obtaining pre-evidentiary-hearing record experienced it had 2006. The difficulties mo- The state filed a contradicting evidence. no evidence relevant contained untimely. as Ray’s petition testimony. tion to dismiss sworn summary for with a motion Ray countered 28, 2011, the district court held July On reviewing parties’ the After judgment. evidentiary hearing. beginning, Before an mo- briefs, court denied both the district though that even the court clarified evidentiary hearing, tions, an scheduled asserting an party rule is that the general of Ray testify support ordered defense, untimeliness, like affirmative exception “the mailbox rule claim that his defense, proving the burden of bears ap- limitations defense of to the statute to the de- exception had invoked an ruled that bore The court also plies.” rested with him to fense so the burden that his proving of the burden exception applied. The prove that timely. “has made the re- court noted court, as The record before district of sufficient evidence quired presentation evidentiary hearing, to the prior it existed raised [the conclude that he has ... detailing his Ray’s sworn affidavit included disput- [T]he mailbox issue.... rule] gave 2004 he his that on claim infer- it, specific facts but ed not based to Ms. Tamara motion section 974.06 he that the evidence entially, they argued Facili- Smith, a Diamondbaek Correctional not credible. position supporting has that he Ray averred ty social worker. factual that we need a I have concluded motion, prepaid Ms. gave hearing, according on that.” The hearing mailing to the Wisconsin Cir- postage, court, to “assess was conducted to the County. He Milwaukee cuit Court credibility.” [Ray’s] Smith, turn, gave that Ms. maintained began with tes- evidentiary hearing receipts: a “Certifícate Service him two T. Officer John timony from Corrections signed, and a receipt, which he by Mail” of New library in the Nedbal. He worked Re- Correspondence Privileged “CCA incarcerat- Ray was prison, Lisbon where Ray’s affidavit signed. ceipt,” which she signed CCA allegedly lost infor- ed .when to obtain his efforts also described Corporation America. to Corrections "CCA” refers prison library it to the notice receipt giving anything suspicious after them. about Ms. Martin photocopying. staff for Officer Nedbal admitted that she was not any aware library policy requiring prisoner’s copies being in- other quoted lost, only way but she said that the “identify^ copied,” mates to material to be ] library would if know is the “inmate came which he understood mean inmates In opinion, let us know.” her precisely what expected were to describe prison would not steps have taken to look they copied. Officer testi- wanted Nedbal copies including in- circulating an that he would “look over” the de- [ ] fied — memo, ternal and interviewing individuals provided by and instructions scriptions responsible who were for the copying get then “send it to ... their prisoner —if Ray’s copies had never made. Ms. been if anything “suspi- he noticed copies,” but Martin stated that she checked the “lost in the materials submitted he cious” about mail” option on an request information talk.to the and contact a would form she received because she believed if supervisor necessary. Officer Nedbal photocopies that the were made and there explained only permitted he was was no Ray actually evidence that received “glance” prisoner’s stuff,” at a “legal so he them. prisoners’ legal did not read materials.
He “glanced stated he had at” the cross-examination, During her Ms. Mar- disbursement form provided with his tin explained that she identify copy request. That form contained a “rea- document as if it suspicious “had someone section,” request son for which it,” else’s name but she also looked *6 wrote, copies Corpo- “Two of a Corrections “various other” suspicious- indicators of Privileged ration of America Correspon- Ray’s ness. She said she believed docu- Receipt dence form.” ments were lost request because his not flagged suspicious and he claims to cross-examination, On Officer Nedbal have never received the documents. The explained were, Ray’s copies that to his prison did not an have internal tracking knowledge, requested the first copies that procedure verify receipt requested had during years ever been lost the three copies, require nor did it prisoners sign that he library. worked agreed He any type receipt upon delivery. Look- that only basis for believing that the records, ing library at Ms. Martin con- copies Ray’s had been lost was claim that firmed that an inmate with the initials he did not receive them. than Other completed Ray’s “AS.” photocopy request “photocopy request,” which served as a de 19, April on Finally, Ms. Martin receipt prisoners facto prison, and the testified that Ray previously worked Officer Nedbal had no other means of veri- library in the February between Sep- fying original document and tember 2008. requested copies had never been delivered. redirect, On Ms. Martin corroborated Lynn then called testify. Martin to Officer Nedbal’s prisoners statement
Ms. Martin served as the librarian at New were required they to detail what wanted Lisbon since the fall of 2007. She ex- copied, just copies they number of plained that she would have screened the were requesting preference or their documents that photo- submitted for how the copies appear (e.g., double- copying flagged anything that looked sided, etc). scaled, suspicious supervisor’s for a review. Ac- cording Martin, to Ms. if the materials The state testimony solicited from Mi- “went over to copied” be then she Highley, did not chelle specialist financial behalf, Bay Institution since mail” on his Green Correctional and Ms. Smith responsibilities Her in- September 2009. went into “the social worker office” where maintaining cluded records on inmates’ proceeded she through to look the cabinets trust accounts. Inmate trust accounts finding before giving Ray two forms to during made incarceration. purchases show form, complete. The first according to Highley Ms. testified account Ray, was a by certificate of mail. service any purchases April not show between did The second was a CCA privileged corre- 14, 2004, so if mail and June he sent spondences receipt, which alleg- Ms. Smith during period, as he claims he direct- edly signed. do, purchase ed Ms. he did not Ray testified that he relying had been envelopes postage prison’s or help fellow inmates for legal with his conceded, “commissary.” Highley Ms. affairs and that he did produce cross-examination, however receipt initially CCA because one of those might purchased have those items before inmates had it when the inmate was trans-
April stamps borrowed and envelopes prison. Ray ferred to another testified inmates, from other by received them that, relying on the advice of other in- family redirect, mail from members. On mates, only up followed with Ms. Highley Ms. testified had been Smith —and not the directly— state court Bay transferred to Green Correctional In- because he was concerned that the court stitution on 2004 and he had might get irritated and summarily dismiss “zero” dollars “cash on arrival.” Ms. petition. Ray allegedly sent Ms. Smith Highley not dispute might did that he have three letters to obtain information about previously purchased stamps or obtained motion, his post-conviction the first on by them alternative means. 1, 2004, June September 9, second on Ray served as the final witness and the last on June 2005. He evidentiary hearing. He began reaf- copies retained of each. But after not firming veracity his previously sub- *7 hearing back from Ms. nearly Smith for mitted affidavit. explained He that in years, Ray two decided to contact the state April 2004 he was incarcerated at the Dia- directly. He claims to have waited mondback Correction in Facility Okla- so long thought because he might there homa. Diamondback did not have a sepa- have been some sort of in delay his mail mail; system legal rate for inmates could reaching Ms. Smith: “staff members in give legal mail to put officials or [t]hey other institutions ... get a letter directly it in the regular Ray mail. ex- inmate, ... an they’ll put from it to the 27, plained April that on 2004 he did not they side until keep piling up____” inSo regular have access to the system mail 2006, Ray October sent a notarized letter because his unit was on “adminis- to the Circuit Court of Milwaukee confinement,” County trative prisoners so were requesting information about the status of prohibited leaving During unit. lunchtime, Smith, his section 974.06 motion. being Ms. Tamara After in- one of the workers, prison’s formed that no such motion social “came in the unit.” was received Smith, pending, Ray or Seeing Ray supplemental Ms. filed a .“stopped eating sec- cell, motion, upstairs went to tion 974.06 grabbed which the court denied [his] [his] ... envelope manila on October 2006. Ray subsequently with [his section] 974.06 in it and it sent brought [motion] down- Ms. Smith a letter on November give stairs” to telling asking to her. After Ms. 2006 about original his motion and Smith that he “legal explaining needed her to send that the court had never re- The both sides an the warden to district court offered it. He also wrote
ceived arguments. make mishandling opportunity closing to Ms. Smith’s complain about Ray’s Ray’s counsel summarized evidence mail. his prevail to argued “[f]or the State Ray, after issued our According to we situation, you in have that in to believe began reaching he opinion April Ray figured out ... October Mr. had had try to find the inmate who his out to provisions AEDPA ... tolling finally tracking down receipt. After CCA began then to manufacture evidence receipt, sought copies to make Ray ... with federal to deal recently attorney. himself and his retained assuming had not even been filed However, prison library failed deliv- petition, just which had State he found requested copies not return er his and did received, had going out be been original Ray sought So his document. ad- extraordinary denied. It is an amount of apparently vice from Ms. Martin. She who, prescience the behalf Mr. about because she knew case [gen- recently, until did not even have his library to the him down show” “call[ed] equivalency diploma].” eral him on “LexisNexis decision” we is- April by raising The a series explained sued Ms. state closed thought questions extremely Martin that he it was about version important began refuting suggestion to find the document. events. It by Ray’s that it been derelict counsel The state confronted with Diamond- in obtaining evidence from Diamondback. Visiting” back’s “Communication Mail and “I explained, Counsel made have numerous policy, during which had been in effect ... phone to CCA have calls [and been] 6(a) policy 2004. Section met voicemails and unreturned calls processed “All inmate mail states: will be I everything months now. have done through the institutional mailroom. No I get can think of to do to more visitors, permitted person, either staff poli- information from CCA on what their bring any or take out mail or article cies were.” for an inmate.” maintained argued could take mail to the mailroom then be- “a bright very cause unit was administrative con- individual” and “it strains finement, credibility” despite policy, the written to believe that he could not inmates allowed to mail to AEDPA’s give were understand statute of limita- *8 Although continued, I prison policy officials. the said tions. Counsel “So do not nothing receipts outgoing privi- beyond possi- about for think that it is realm of leged bility Ray mail—but it did such ... describe re- Mr. learned one limit, ceipts “incoming” year passed for time learned correspondences— that he had Ray gave swore that Ms. him it and his started with collateral stuff and receipt outgoing Pointing point his mail. to then at made these some let- ” claim, prison logs attorney mail .... further buttress his ters The state’s ar- Ray outgoing legal gued Ray that all mail that “it testified seems incredible” supposed logged, give prisoners was to be do would Ms. Smith his section 974.06 logs, going not have to the and motion right access mail before be (or Wisconsin, “a prison produce refused to submit into transferred to and that Priv- evidence) dates, giv- from the be logs ileged Correspondence relevant form would including gave outgoing the date he his motion en to an inmate in mail” and “a be, you Ms. Smith. of Service ... would Certificate (4) ters; know, spelling grammatical full and er- the “somewhat curious” nature of repeatedly “retain[ing] copy Counsel stated of a letter he rors.” sent Ray’s only evidence “does not make a lot of a month after he handed Smith his sense,” relief, “given postconviction Diamondback’s motion for especially but [he] clearly itself’; where it states that mail is did not policy, copy retain of the motion (5) given Ray’s to be to staff members.” Before not certificate of service “bears no attorney the state’s reiterated concluding, signatures, Ray’s, other than appears and many through filings plain paper has “shown white heading with no clearly a bright capable that he is and other indication that it an prison official “I individual” and do not think that these form ... compared [and] [e]ven when supposedly corpus arcane rules of habeas the official property request form from file, are lost on him” because AEDPA “is not which also lacks an institutional complex” “many prisoners, and heading and and contains a grammatical error certainly Ray” Mr. ... capable are of under- the certificate looks more like the standing Finally, product the statute. counsel work of a prisoner than a (6) administration”; closing stated: “knowledge only of not one-year period limitations only We know from Mr. for federal habeas petitions, but also the copies missing were or supposedly miss- mailbox rule and the rules governing toll- not ing. copied. We do know what was ing of one-year period” which was No one copied. knows what was by demonstrated his “two or three boxes only copied statement about what was of legal Finally, materials.” the district Ray. comes from Mr. pinpointed Ray’s claim that The fact that he transferred between signed receipt had prison: been lost prisons many years five in however suddenly upon came this form that was [I]t is clear that the document smoking gun some sort of that he did handed CO Nedbal photocopying give attorney gave but instead could have been a document he created officials, just I find all of that attempt an to manufacture additional incredible. evidence to claim corroborate his that he § handed his 974.06 motion to Ms. Tr., 113-20, Hr’g July 2011. Smith on The detail 28, 2011, August On the district court which described the document ... dismissing Ray’s issued an order habeas suggests a purpose beyond simple re- untimely. as The court found that quest thirty-cent for a disbursement for “Ray’s concerning version of the events photocopying.... signature [Nedbal’s] filing post- of his state motion for ... acceptance of the document for conviction relief is not credible.” The copying, circumstances, under the can- closely paralleled court’s decision reasonably be viewed proof closing argument. state’s Its findings what Having document was. *9 (1) following: Ray alleg- were based on the himself, library worked the edly gave Ms. Smith his motion “when would have known much. way he was on his knew back to Wisconsin (2) days”; in a matter of until waited The district court concluded that was 4, 2006, credible, October to ask the clerk of the carry he did not his motion; court” for information about proving statutory tolling, his burden of and (3) Ray any failed to take action other than petition his was time barred. sending “nearly appeals. Ms. Smith identical” let-
1002 stead, prisoner almost blind- pro a se must ANALYSIS
II.
ly
mail” and
rely
“vagaries
on
of the
the
questions that
appeal
This
two
we
raises
271,
scruples
prison
of
officials. Id.
108
first,
yet to
in our circuit:
have
resolve
delay
“And if
a
S.Ct. 2379.
there is
the
applies
the
rule
to toll
whether
mailbox
to
prisoner suspects is attributable
the
one-year
period when
AEDPA’s
limitations
authorities,
prison
unlikely
he is
to have
delivers a Wisconsin section
prisoner
a
it,
any
of
for his confine-
proving
means
to
prison
motion
a
postconviction
974.06
monitoring
him
prevents
ment
from
the
court;
the state
sec-
mailing
official for
sufficiently
delay
process
distinguish
on
ond,
applies,
if the
rule
which
mailbox
prison
the
of
part
authorities
slow
proof
the
bears the burden
party
mail
or the court clerk’s failure to
service
the
matter of timeliness when
state court
the notice on the date
stamp
received.”
prisoner’s
never receives the
motion. Our
short,
pro
prisoner’s filing
Id. In
once a
se
legal
review of these unsettled
issues is de
hands he
control over
leaves his
loses
its
Acevedo,
774,
595
novo. Simms v.
F.3d
processing.
Id.
(7th Cir.2010).
will then
if
777
We
decide
(or
be)
clearly
by finding
Additionally, prisons
district court
erred
are
should
the
his
give
equipped
well-developed
did not
section 974.06
with
administra-
27,
“recording
motion to Ms.
2004 and
tive
for
procedures
date
un-
they
papers
federal habeas
and time at which
receive
for
Bertrand,
timely.
275,
mailing.”
See Bintz v.
403 F.3d
Id. at
2379. In
108 S.Ct.
(7th Cir.2005).
light
prison-prisoner power
865
of the inherent
imbalance,
and
prisons
information
should
Applies
A. The Mailbox Rule
“readily
dispute
prisoner’s
be able to
paper
that he
Lack,
assertions
delivered
on a
Supreme
In Houston
v.
Court
by referencing “prison
different date”
mail
“bright-line
established the
that a
rule”
logs,”
example, or
other reliable indica-
prisoner
se
a federal
pro
files
notice
mailing
tors
established
controlled
to federal
appeal,
prerequisite
appellate
by
Id.
will be
prison.
prison
“The
jurisdiction,
moment
prisoner
only
at least
party
access to
some of
mailing
delivers it to
official for
ques-
evidence needed to resolve such
275-76,
the court. 487
S.Ct.
U.S.
108
(1988).
general
tions—one
vices the
rule is
245
rule
L.Ed.2d
This
”
any
meant to avoid—and evidence on
colloquially
known as
“Houston
Bertrand,
will be
come
these issues
hard to
“prison”
rule. Jones v.
mailbox
cell,
(7th Cir.1999).
confined
who
can
171 F.3d
only
usually
guess whether
au-
reasons for its
are
existence
manifold.
thorities,
Service,
the Postal
or the court
starters,
For
pro
prisoners occupy
se
any delay.”
clerk is to blame for
Id. at
unique position
litigation.
oth-
Unlike
276,
1003
89, 94,
2197,
Pardus,
sequential in
justice.
127 S.Ct.
the interest of
551 U.S.
See
v.
(2007)
curiam)(“A Houston,
271,
487
S.Ct.
(per
U.S.
108
would be
Cir.2000)(“the
with
applies
mailbox rule
state,
Statute
citing Wisconsin
as well as
filing
force to the
of state
equal
801.16(1)
809.80(3), argues
and
sections
recent but diver-
petitions”). Two
federal
from the mailbox
benefit
cannot
gent Fifth Circuit cases illustrate
requires “actual
rule
Wisconsin
because
Stoot,
In
the Fifth Circuit held
point.
for a document
by the court clerk
receipt”
Court
though
Supreme
even
the Louisiana
filed,”
Ray’s motion
and
“properly
to be
precise
issue of
had not considered
AEDPA’s
actually received before
was not
a
applies
rule
when
whether the mailbox
The state also
period expired.
limitations
pleading is mailed but
pro
prisoner’s
se
rule should
argues that
mailbox
received,
adopted
top
the state’s
court “has
here,
where,
prisoner’s post-
a
as
apply
Houston,”
reasoning
and
so
holding
any
at
time.
may
motion
be filed
conviction
570 F.3d
rule extended to that case.
failure to
section 974.06’s
The state views
from the
distinguishable
671.
is
at
Stoot
proof
Wis
filing
include a
deadline
earlier decision in Howland
Fifth Circuit’s
rule in
apply
the mailbox
consin refuses
Texas,
there,
the relevant state
because
do not find the
circumstances. We
these
Louisiana,
clearly rejected the
unlike
persuasive.
arguments
state’s
1005 of circuit court.” And Wisconsin provides clerk eliminated. situation a 809.80(3), says section which in perfect Statute case point although fully — filing complied 974.06, court clerk must “receive” a be- the with section the state has applicable the deadline for it to be fore attacked his federal habeas as un- petition “timely,” pro prison- not to apply timely. does se Notwithstanding Wisconsin’s gen- 809.80(3)(e). § Instead, ers. Wis. Stat. erous acceptance See of section 974.06 post- pro prisoner’s petition time, a se is “on filed the conviction any motions at there are (and drastic) person date the confined delivers a practical case this conse- correctly petition proper quences addressed to the filing for not the motion within mailing,” provid- year institution authorities for judgment. one' of the final the a prisoner ed that files “certification or Suppose undisputed setting affidavit forth the date on which gave postconviction his motion a petition proper was delivered to the one-year official within AEDPA’s time mailing.” institution authorities for Id. frame but court state received the Second, Supreme year Court of one day Wisconsin document and one later due made its endorsement the. Houston oversight to some honest mail abundantly system. mailbox rule clear in State ex Accepting the position state’s Litscher, Wis.2d 1013, Nichols v. rel. would leave without a federal forum (2001). collaterally 635 N.W.2d 295-96 In that conviction, attack his unless court, case, persuaded by Houston’s he could prove his entitlement to equitable rationale, applied pro the mailbox rule to a tolling. Statutory tolling would offer no se certiorari Id. prisoner’s reprieve state action. because without the benefit (‘We rule, persuaded by are rationale mailbox state motion was not Houston’’). so, doing It ex- “properly court filed” one-year within AEDPA’s plained “mandat[ing] any it was not period. The is comfortable with this state particular procedure [pro prisoner] bpcause se result section 974.06 imposes itself follow,” litigants must “a certificate of no filing but deadline. But we not. are In our mailing or ... hypothetical, Ray’s inability service affidavit of to control and presumption create a rebuttable that the monitor mailings would be the reason prisoner had delivered his her for his Supreme habeas misfortune. The n proper prison to the Court authorities established the Houston mailbox particular day certified.” Id. rule objectionable at 299. to obviate such out- comes.
The state Nichols dismisses because it tolling petitioning gravamen argument addressed the time for The of the state’s is apply after an does not supreme the state for review that the mailbox rule where prisoner’s filing subject is not to a appellate court’s affirmance. The state timeli- correctly requirement. notes that section 974.06 motions ness reasons as state if subject any requirements, applies are not time follows: the rule mailbox there deadline; Ray filing but this does not matter. All of the con- could file his state time, animating Supreme any Court’s deci- so mailbox cerns Ray’s filing. not Supreme apply rule does sion in Houston Court We reject reasoning. pro Just because a apply decision Nichols Wisconsin’s filings prisoner se can benefit from the mailbox pro force to se equal pro statutorily one-year A se rule to AEDPA’s subject requirement. to a time toll subject disadvantages filing if litigation period prisoner’s unique deadline, it does follow that the rule filing when deadlines are disappear do not *13 mailbox that the no imposes state the rute where apply cannot aperabifcto. “file” a prisoner’s one se only pro limit is time A such deadlines. when femment the it to delivers pro prisoner that a se a filing” prisoner to “condition prison'.official toll AEDPA with statutorily to mailing, must abide pronouncement¥%overns. post-conviction Nichols, state filed” N.W.2d at 635 “properly a 298. Ra^,*there Siebert, 3, v. 552 Allen U.S. rely See on the Houston pleading. fore, ean mailboxrule (2007) 2, L.Ed.2d 329 169 6, 128 S.Ct. AEDPA’s toll statutorily to pe limitations jurisdictional, limit is an (“Whether time a riod, permits Wisconsin though even sec defense, or something in be affirmative motions tion 974.06 t0 be filing’ tween, places a ‘condition it is —it filed at any time. a can long on how wait a limit (ci petition.” filing postconviction a before the Burden B. Bears « The State omitted)). question the And tation Proving Untimeliness filed” re “properly is petition a whether that the Houston Having decided a federal interpreting matter of mains a turn to we the bur mailbox applies, rule Holland, at 130 S.Ct. See statute. well-settled that den is It of proof. interpretation court’s to a state We defer limitations is a non- AEDPA’s statute respect rules out of procedural of its own Day defense. jurisdictional v. affirmative But the principles of federalism. for the 198, 205, 126 S.Ct. U.S. McDonough, 547 fil conditions to state-imposed absence of (2006). 1675, Generally, 376 164 L.Ed.2d prevent law does not under state us ing affirmative defense the an party raising “properly a document as recognizing See v. proof. Gildon bears the burden AEDPA as a matter under of federal filed” (7th Cir.2004). 883, Bowen, 886 384 F.3d See, e.g., Taney Cnty., Sulik v. law. 316 habeas context. the The same is true (8th Cir.2003)(holding that 815 F.3d (“Since of limitations period See id. regardless length of the “applies Houston defense, has the state is an affirmative period”); limitation Lewis v. Rich is petition showing burden of Dep’t, 947 F.2d 736 City mond Police axiom this untimely.”). Ray argues (4th Cir.1991)(holding that the Houston state and that the inquiry, should end our “provides that a statute of mailbox rule proving that the burden should bear limitations practical has the same effect untimely. is petition his federal habeas every prisoner litigant governs” se pro so issue is not But of this resolution length of the time restriction “[t]he straightforward. irrelevant”). involved prob- potential two identifies state courts, including Supreme Many this general rule applying lems with Court, consistently conveyed con- have way around First, one tolling case. offers unique pro prisoner’s se cerns about limitations and it makes the statute of ina- including his litigation disadvantage, re- party require intuitive sense monitor documents bility to control and appropriate- its questing tolling prove Houston, E.g., that he sends to the court. support finds ness. The state Jones, 270-71, 2379; at 108 S.Ct. 487 U.S. the bur- in how courts allocate argument As one means of 171 F.3d 500-01. involving equitable in cases proof den of concerns, apply addressing these we will Pace, 125 E.g., 544 U.S. tolling. post- state prisoner’s the mailbox rule to one, Second, in like this cases S.Ct. 1807. has filings unless conviction purported filing is petitioner’s the where clearly rejected the rule. Because received, re- the state would be held in Nichols never Supreme Court Wisconsin
1007
negative:
quired
prove
peti-
application
postconviction
for state
relief
”
give
pending.’ Day,
did not
official his
‘is
tioner
U.S. at
one-year
before AEDPA’s
limita- S.Ct.
(quoting
28 U.S.C.
2244(d)(2)).
§
period
Equitable
tions
ran. We believe both concerns
tolling can be in-
only
overstated.
voked
after a finding
are
or concession
one-year
period
expired.
has
See
certainly
peti
It
true that
*14
Sisto,
1172,
v.
Cross
676 F.3d
1175-76 & n.
of proving “equita
tioner bears the burden
(9th Cir.2012).
2
placing
So
the burden on
tolling.”
equitable tolling,
ble
Id. But
as
party
requesting equitable tolling is
suggests,
appeal
equity.
its name
is an
functionally equivalent to first finding that
Holland, 130
at 2563. It
not a
See
S.Ct.
is
petition
federal
is untimely and then
statutory interpretation.
matter of
As is
requiring
petitioner
to prove that “eq-
case,
always
almost
the party seeking
uity”
except
should
or excuse such untime
equity
prove
must
its
equi
entitlement to
In
way,
liness.
rightful
burden is
See,
ty.
e.g.,
Annuity
Great-W.
&Life
ly
petitioner,
on the
party
as the
seeking
Knudson,
204, 233,
Ins.
v.
534
122
Co.
U.S.
application
equitable
of an
exception to the
(2002)
708,
(Gins
S.Ct.
After the
makes this
petitioner
despite
the mailbox
the fact that
rule
ordinarily
declaration or nota-
via
sworn
petitioner’s federal
of appeal
notice
statement,
rized
the burden shifts
not received
the court. 471 F.3d at
Huizar,
prove
E.g.,
untimeliness.
disagreed
1198. The court
with the Ninth
Allen,
1223-24;
Houston for
readily
in
and can
place
document to a
official on the date
procedures
have
delivery).
assertions of
dispute prisoner’s
so,
parties
claims to have done
the ultimate burden
agree
We
showings
similar
all
required
are
to make
rest with the
proof in these cases should
Indeed,
litigation.
very
time in
occupies
pro
prisoner
se
state because
of a statute of limitations defense
merits
con-
unique disadvantage,
and he cannot
depends
showing
complainant
on a
freely monitor documents that he
trol or
See,
e.g.,
did “not” file a lawsuit
time.
Houston,
court.
487
directs to the
See
(“[A] height-
Kilgore, 519 F.3d
1088-89
275-76,
We to address the state’s allegedly prisoner’s cial who handled the ment that our allocation of the burden pro prisoner mail. As for the se confined it way require prove nega- to cell, any to his “evidence these issues argument only superficial tive. This has by” “only will hard to come and he can be appeal. “Proving negative” suggests re- authorities, guess prison whether the quiring impossible— the state to do the Service, Postal or the court clerk is to is, petitioner’s delivery to exclude any delay.” blame for Id. This is “one of filing a prison of his to official from the the vices the rule is meant possibility. [mailbox] realm of all But the state is required prove not to a avoid.” Id. statistical cer- prison policy case because the forbade forget is should We state, prison, that determines handling vis-a-vis the mail for an inmate. staff 1020.) handled in the first (See mail is prison how post interpretation But this prisons its require The state could place. prison policy simply is incorrect. The outgoing detailed intake and implement dissent, “All policy upon by relied in- mail, prisoner including procedures processed through mate mail will be copies envelopes signatures receipt, person, institutional mailroom. No either court, or other mecha- addressed to the visitors, or permitted bring staff or closely tracking prisoner aimed at nisms inmate,” any take out mail or article for an why prison’s mail. We see no reason naturally is more read to mean that mail procedures failure to institute such should coming prison in or cannot be out penalize pro prison litigants. se serve through anything delivered other than the Instead, our that “the it reinforces belief (i.e., institutional mailroom inmates can- the burden of show- prison bear] [should directly give place- mail to visitors for ing prisoner that the should not be enti- ment into a mailbox of prison). outside dispen- tled to the benefits Houston’s Furthermore, provision another in the Gish, sation.” See Thomas v. 64 F.3d prison policy expressly same section of the (7th Cir.1995). 323, 325 This is so be- provides, “At no time will an inmate/resi- could, wanted, if it adopt cause the collection, handling, dent be involved the procedures. Its failure to these or similar mail,” or necessarily distribution of which pro prisoner bearing se do so leaves the responsible means that staff are for col- that his document will be mishan- the risk mail, lecting handling likely inmate dled, of proving but without means event, security any reasons. In the state case. Since it has control over the proffered no evidence to contradict mail, policies, prisoner mail control over testimony give that he was allowed to out- himself, and control over the going mail to delivery staff for to the proving state should bear the burden of mailroom, entirely which is consistent with pro prisoner’s that a se federal habeas interpretation. the above untimely. Washington See v. (11th States, 243 F.3d United recognize identify We the need to
Cir.2001) curiam)(“[A] (per prisoner’s pro *18 Otherwise, limiting principle. some as the § 2255 motion is deemed filed date se the out, correctly points prisoner’s pur state a prison it is delivered to authorities for filing might mailing” prison ported “properly and “the is on au- be filed” or burden prove prisoner years the date a “pending” anyone thorities de- without know this, livered his documents to be mailed. Ab- ing. petition To avoid we think the contrary in sent evidence to the the form requisite evidentiary showing er’s should records, prison logs or other we will exacting. prisoner’s be The sworn decla true].”). petitioner’s assume claim is [the who, what, identify when, ration should To the extent the state feels it is tasked where, how, why alleged and of his deliv “proving negative,” allay with a it can ery prison to a official. And in cases by implementing proce- those concerns purported filing where the is not received dures to better track and document its court, petitioner supply must prisoners’outgoing mail. See.id. attesting sworn declaration to these facts (hereinafter plus corroborating some other evidence.
The
dissent
the “dis-
partial
sent”)
documentary
This “other evidence” can be
suggests
placing
the burden on
(for
copies
filing, post-
particularly
example,
the state is
troublesome in this
Carry
Bur-
correspon-
C. The State Did Not
Its
envelope, or other
marked
dences). Or,
But
den
may
testimonial.
be
litigant adduces
pro
prison
once the
se
To summarize what we have accom-
evidence,
all that
is
he has done
such
far, the
mailbox rule
plished so
Houston
to the
The burden then shifts
required.
pro
prisoner’s
to “file” a
se
operates
state to
untimeliness.
show
motion under AEDPA’s
reject the Ninth Circuit’s “dili-
We also
statutory
the state
tolling provision unless
agree with the
gence” requirement. We
clearly rejected
has
the rule. This rule
prisoner’s
that a
lack of
Eleventh Circuit
applies
filing
subject
even if the
is not
to a
to unfile a filed
diligence
operate
cannot
procedural
under state
rules and
deadline
Allen,
There is no the district Ray’s petition habeas was untime- federal proof Ray. placed the burden of year from ly, the state had over one This was error. Our review of record mandate issued on time our court’s error convinces us that the district evidentiary hearing. until the This was law, limited to the however. to cull enough was not more than time for the state any submit evidence to con- to refute together state did not evidence sufficient for un- Ray’s testimony persuasive and evidence. claim and make a case tradict “made certainly carry apparently its burden of timeliness. The state And it did calls to ... other CCA phone habeas numerous proving that federal but operating still in Oklahoma” prisons court found untimely. Yet the district Houston, reject “with voicemails and unreturned Court’s dictates in was met we “everything” request calls for months.” It did state’s that we do so here. get could think of “to more information ... policies,”
from CCA on their but was III. CONCLUSION *24 ultimately ap- unsuccessful. So the state reasons, For the above-stated we Re- peared evidentiary hearing at the with one the district court’s dismissal of the verse witness, only speculate who could about petition for writ of corpus, habeas and Ray might postage have had whether grant Remand with instructions to the writ 2004, April prison policy mail that and retry unless the state elects to peti- the testimony Ray’s did not contradict about days tioner within 120 of issuance of our receipts outgoing the issuance of for mail. final mandate or of the Supreme Court’s evidence, painted Ray Without the state as final mandate. “bright,” “sophisticated,” and experi- AED- litigant enced habeas familiar with MANION, Judge, Circuit concurring one-year period
PA’s limitations and the part, dissenting part. applicability mailbox Houston rule’s pro prisoner’s se purported filing that is actually received the court. Brand- I. liar, ed a what was to do? No amount Ray filed this habeas action in federal of evidence could have overcome hur- February court on Opinion at dle. The district court sided with the 996-97. The Ray’s district court denied only incorrectly state. But it did so after petition he appealed and to this court. placing proof Ray. the burden of on We Ray’s clearly This court that held estab previously Ray’s held that constitutional rights lished confrontation clause were vio rights during were violated his state court lated when the state court admitted co- trial. So we now reverse the district through police actors’ statements detec Ray’s petition court’s dismissal of as un- testimony tive’s trial. v. Boat timely, petition, reinstate the and remand (7th F.3d, 793, Cir.), wright, 592 grant this case with instructions to 2010). However, (Apr. amended after retry
writ unless the state elects to him. holding Ray’s rights constitutional concluding, violated, In we highlight an interest- had been this court remanded the ing irony in this case we think is case to the district to allow the dis relevant to our place decision to the bur- trict court to Ray’s determine whether ha proving den of petition untimeliness the state. beas had been timely filed. The difficulty The state notes the in government argued Ray’s has had had habeas obtaining evidence from and petition one-year about CCA had been filed after the Diamondback; run, it was met with unre- statute of limitations but had messages turned for “months.” This is claimed in petition his habeas attorney’s Imagine state’s office. statute of limitations had been tolled be difficulty, possible resistance, that a petition cause he had handed a state court pro likely se will face under simi- to a April social worker on lar ignore circumstances. To this practical mailing. This court concluded reality substance, is to elevate form over because the district court had dismissed procedure justice. merits, over Without a clear petition habeas before statutory giving government command to that effect from “an opportunity to AEDPA, light and in Supreme petition develop answer the the rec- clearly erroneous. 2004 were 798-99, ord,” required. remand was id. disagree; I the district Opinion at 1017. explained: this court Specifically, being far from findings, factual court’s yet had a has not government erroneous, by con- compelled were clearly the docu- challenge whether chance to implausibilities tradictions and are into the record Ray placed ments documentary evidence. story and the peti- authentic; the state court whether Moreover, mail- agree I while offi- by prison tion was ever received (and I concur in Part applies rule thus box were cials; Ray filed papers whether the that the opinion), disagree A the I II. law to under state sufficient proving state bore the burden relief; whether post- given purported had not Ray allegedly gave to whom *25 individual a worker on conviction motion to social authori- proper prison was a petition However, 27, contrary to the 2004. April Accordingly, we remand this case ty. that “after an evidentia- court’s conclusion government that the the district court so placed ry hearing, the district develop may opportunity have an Ray,” proving burden of timeliness If, after the record on this issue. record 995, in fact the district court did Opinion is de- fully developed, Ray’s petition is proof the burden of on the state and place directs timely, to be this Court termined concluded that the state had met its then grant petition court to the district finding clearly that was not burden. And corpus unless the for writ of habeas part I concur in Accordingly, erroneous. retry Ray within 120 chooses to State part. and dissent days. at 799.
Id. II. remand, the district court followed On evidentiary an He held our directive. Ray proving the burden of A. bears testified, Ray along with hearing at which tolling. (two from the employees three state agree I that the state bears burden library another involved with affirmative defense of the proving accounts). documentary Ray evidence The Bowen, of limitations. Gildon v. statute support of his claims of time- presented (7th Cir.2004). 883, But the 384 F.3d 886 evidence, into as were liness was admitted The state estab- state met this burden. Diamondback. Fol- prison policies not file his federal Ray lished that did evidentiary hearing, based on lowing the 2007, 28, February until petition habeas evidence, documentary testimony filing not within the one- and that this was concluded, as a factual the district court year statute of limitations because matter, Ray presented that the documents final conviction became on or about state testimony genuine and that his were The state further September 2003. The district court fur- was not credible. a Ray had not filed state established a given ther found that had not Smith petition, which could toll post-conviction April motion on post-conviction state limitations, until the statute of October mailing. 2004 for Thus, proved the state 2007. the district court Notwithstanding untimely. petition habeas directed, the court exactly what we did asserting exception is an credi- It is who today holds that the district court’s it is he of limitations and finding did to the statute bility finding and its proving bear the burden of worker on who should give the motion to social tolling. yet While this circuit has cult proving negative.” ad- task of Id. In proof case, dress the issue of the burden asserting who is 2244(d)(2), § tolling under 28 we issue, U.S.C. namely affirmative of an that he petitioner have held that the habeas bears gave post-conviction Smith motion proving equitable tolling. the burden of plac- The court is thus Buss, (7th v. Williams 538 F.3d ing on the state the more difficult task of Cir.2008). That this case involves statuto- proving negative not give did —that ry tolling equitable tolling and not is of no Finally, Smith the motion. principles apply: moment —the same I that proving negative would note party asserting an exception to the statute this context is even more difficult because of limitations’ affirmative defense bears Ray claims he handed the proving exception. burden of See violation of the policy Walker, 1013, 1019 also v. Zepeda 581 F.3d which stated: “All inmate mail will be (9th Cir.2009)(stating that peti the habeas processed through the institutional mail- tioner “bears the demonstrating burden of visitors, person, room. No either staff or period the AEDPA limitation was suf permitted bring in or take any out 2244(d)(2)). ficiently § tolled” under mail Opinion or article for an inmate.” *26 Smith, 1000. No one has been able to find
In that holding the state bears the bur- staff, but if she part prison proving den of she tolling, the court reasons “ would have known she permitted that ‘all was not being equal, else the burden [of reasons, to handle mail. proof] placed is better on For these party the with I easier dissent from the holding access to relevant court’s that the information.’ E.g., Nat’l Commc’ns Ass’n Inc. v. state bore the burden of proving AT&T the stat- (2d Cir.2001).” 124, Corp., 238 F.3d ute of 130 limitations was not tolled. Opinion at 1008. But analysis the court’s B. The district court held that ignores the remainder of what Nat’l proof. State bore the burden of general Commc’ns said: “The rule is that party that asserts the affirmative of an concluding After the state bore the issue has the burden of proving the facts proof, burden of the court concludes that essential to its claim.” Id. And “all else wrongly placed district court the bur- again being equal, courts should avoid re- den of proof Ray. Opinion at 1017. quiring party However, to shoulder the more diffi- the district holding court’s responds 1. The court that the more natural AT THIS FACILITY FOR COLLECTION OF reading of this rule is that no one can take MAIL IS AS FOLLOWS: Mail will be col- prison. Opinion mail into or out of the centrally lected from the located mail box 1011. But specifying addition that the Monday through Friday, (excluding holidays) processed through mail must be the mail- between 8:00 a.m. and 8:30 a.m.” See also room, procedures "post- Policy also discuss the ("Outgoing posted 16-1 mail will be mail,” ing outgoing stating of that: "OUTGO- within 24 hours of the time the mail was ING MAIL WILL BE DELIVERED facility by turned over to the the inmate/resi- FROM dent, added)). (emphasis THE ...” TO THE FACILI- Taken as a INMATE/RESIDENT whole, TY BY THE FOLLOWING procedures clarify prisoners these PROCEDURE: pick The outgoing up mail clerk will "facility,” must deliver mail from the mail to the member, centrally located mail box between 8:00 a.m. and not a centrally staff via the and 8:30 a.m. Mail will exception located mailbox. No be delivered to the is listed for post day office the same it is received those in administrative confinement even though mail clerk in policy the Diamondback includes a list of "ADDI- Correctional policy Facility mail room.” reiterates TIONAL PROCEDURES AT THIS FACILI- point stating later: "THE PROCEDURE TY” related to mail collection.
1021 27, 2004, to mail was not credible. April actually consistent proof the burden holding today. The dis- The court holds the district the court’s with the state did not finding Ray’s hold that error in tes- court did committed clear trict on toll- initially carry proof the burden finding and in timony incredible However, also ex- district court ing. given the social worker a state had not the bene- claiming that a plained motion on “initial rule had the mailbox fit of the mail. a sworn declaration presenting
burden
notes, we will reverse a
As the court
having
requirement of
forth the
setting
if
findings only they
factual
district court’s
official the document
handled]
the record
light
are
“implausible
prepaid.” The
postage
with
to be filed
Fran
Gorham v.
entirety.”
in its
viewed
agreed
court then
district
(7th Cir.1985).
zen,
F.2d
790
state,
shifted to the
the burden
point
Moreover,
recently
explained
as we
pris-
that once the
“Ray is correct
stating:
Smith,
v.
United States
668 F.3d
evidence,
Ray has
presents such
oner
(7th Cir.2012), “[s]pecial
given
deference is
respon-
here,
shift to the
the burden does
factual determina
to the district court’s
court,
it.” The district
dent
to refute
court had the
tions because the district
split
that there was a
though, recognized
testimony
opportunity to hear
ob
burden-shifting ap-
in the circuits on
”
the demeanor of witnesses....
serve
deci-
the Ninth Circuit’s
proach, between
Thus, because
of witness
“[d]eterminations
Carey, 273 F.3d
in Huizar v.
sion
great
deference
credibility are entitled
Cir.2001)
(9th
Eleventh Circuit’s
and the
”
[they]
virtually
‘can
never be clear error.’
Culliver,
different and the scheduled date transfer, or whether supporting In addition to highlighting the evidence documents were fraudulent. And the present, the state did not the court rea- Diamondback logs? mail Not in soned that: prevailed “The state in the the record. None of this evidence inis by district branding Ray court sophisti- the record. liar, prison litigant cated any without support evidence to those accusations.” Opinion at 1016. Opinion so; at 1016-17. That is not It is true that the state present did not district court had ample circumstantial evi- But evidence.2 the absence of this dence, below, length discussed at to con- entirely evidence is ques- irrelevant to the clude that was both a sophisticated tion of whether the district court was prison litigant Thus, and a liar. contrary clearly in finding Ray erroneous incredible to the portrayal, court’s this is not a case story his evidence and contradictory merely district court branding Ray a Yes, implausible. Smith or others liar. from might Diamondback have contradict- ed testimony, true, but the law does not It though, Supreme as the Court require prove direct evidence to clear, a fact— has made may not “insu- See, circumstantial evidence will suffice.3 late findings review denom- *28 e.g., Foods, Inc., Bloedorn v. Francisco inating 276 them credibility determina- 2. Diamondback has been closed and the v. Permanente Group, Long Medical antz Inc. attempts speak Plan, state’s with Disability former Dia- Term 687 F.3d 336-37 proved (7th mondback staff have Ray's Cir.2012) ("We futile. at- will disturb the dis- torney argument indicated at they oral that trict findings court’s factual after it has any have not made efforts to find Smith be- weighed unless, the evidence on both sides cause it is not their disagree burden. While I evidence, considering after all of the this 1019-20, proposition, supra with that see court is left with the definite and firm convic- assuming even the state bore the burden of tion that a made.”)(empha- mistake has been proof, inability its to obtain direct evidence If, of added). hand, sis on the other the court Ray's fraud does not insulate from a presented believes the evidence at the finding that he is not credible. hearing support does not a reasonable infer- giving ence that lied post- about Smith a motion, responds 3. wrong. The court conviction the that “the state court is did not As below, present Ray's even upon testimony, discussed circumstantial evidence testimony, which a factfinder reasonably poli- could have officials’ the Diamondback cies, based his doubts about testimony.” and extensive documentation Opinion case, presented at 1016. point prove If the court’s together is that his taken most of the contradicting Ray's evidence testi- created a reasonable inference that never mony (and came gave himself not the Smith a motion for fil- state), objection misplaced. ing. is See Mar- ” or City simply mentions without examination Anderson v. Bessemer tions.... contradiction. 564, 575, 105 S.Ct. 470 U.S. City, (1985). Supreme as the But L.Ed.2d 518 disagreement 3. The court’s Anderson, in explained Court further reasoning. the district court’s than “factors other demeanor there are go into decision and inflection [which] noted, As the district court detailed not to a witness. Docu- or believe whether substantial number the inconsistencies may objective contradict ments or evidence implausibilities Ray’s testimony and and story may itself story; or the holding witness’ In the district his evidence. internally implausible error, or be inconsistent court so court committed clear presents face a reasonable factfinder mentions these reasons but then [their] evidence, substituting Id. That ex- its own view of this not credit [them].” judgment its for the district court’s. This pre- have case and we in this actly what impermissible. v. Man- United States found. the district court cisely what Cir.1999) cillas, (7th 183 F.3d “Taking into court stated: consid- district (“Factual are clear findings reviewed for surrounding all of facts eration error, will and this Court not substitute its case, the Court does circumstances judgment for that of district court if Ray’s testimony that he handed not find there is in the record for the trial support motion §his 974.06 to Ms. Smith faet.”)(internal court’s findings citations 27, 2004, court fur- credible.” The district omitted).4 rejecting Ray’s ver- explained ther was sion of events because of “inconsistencies Ray’s impending a. transfer im- own documentation further to Wisconsin. concerning documenta- plausibilities ” instance, then response tion .... The district court detailed For district reasoning number and court’s that it curious substantial of inconsistencies Ray gave court motion which the court his Wisconsin state implausibilities, few of ing implausibili- response to the dissent illus- that the inconsistencies The court’s court's Ray’s story two further flaws in the review trates ties in and his evidence cannot First, reasoning: of the district court’s finding, support the district court’s factual quotes out of context to rea- court Anderson piece court each then isolates of evidence and (hat as) (what perceives son minor by in- one concludes that the individual one implausibilities Ray's or inconsistencies consistency implausibility is insufficient support story court’s factu- cannot the district support itself the district court’s factual finding internally they because are not “so al *29 See, findings. e.g., Opinion at 1014-15. implausible or on its face that a inconsistent However, piece sup- one of must no evidence not reasonable factfinder would credit it.” port finding; a factual rather the court must Anderson, Opinion 1013. But in the Su- take the entire record as a whole. v. Cf. Huff preme discussing Court was what was not UARCO, Inc., (7th 122 F.3d rather, support finding; required to a factual Cir,1997)(discussing standard in a discrimina- explaining Supreme Court was when a Thus, case). individually tion that some of credibility could be overturned determination moment; vagaries are minor is of no clearly the district court as erroneous. Had of the infer- court should have considered all credible, might Ray evidence not found flowing ences from the evidence in total. And internally “so inconsistent im- reach the total, the evidence was than sufficient more plausible its face” threshold conclude findings support the district court's factual clear that the district court committed error. Ray Ray that not that had was credible and Ray case the court But in this district found given a state motion to thus incredible and the court’s reliance on Second, misplaced. Anderson is conclud- to mail. it official mailing prison to Smith in Oklahoma for to Wis- that is an form. It con- service, year he to be space consin when was about trans- tains no and Wisconsin, the court retorts: The typographical ferred to contains numerous errors.” any not present evidence on did The court first notes that “no one testified at the prisoners facility would “whether pho- certificate of service was they were slated to be ny.” have known at 1014. Opinion explained But ” prison.... to a above, different transferred prove the state need not its case But 1016. testified: “We Opinion at with direct evidence. The court then ac- confinement to the knowledges typos was on administrative that the form had and weren’t—we weren’t allowed to unit. We any markings, lacked institutional but ex- they unit.... Because leave the problems noting: cuses by those “[t]he prisoners Wisconsin back from bringing document, typos in the lack any and its Oklahoma back to Wisconsin.” From this distinguishing like a letter- characteristics testimony, the district very head, court could were consistent with other official reasonably conclude that knew documents, he was unquestioned CCA authen- returning to Wisconsin while in confine- ticity, into introduced evidence ment and that it was that he strange would bearing Opinion the same defects.” mail to a decide to the motion Wisconsin 1014. But the district court considered Oklahoma, court from especially when he other forms and found “[e]ven supposedly get couldn’t to the mailbox in when compared to other official forms Oklahoma.5 which heading lack an institutional error, grammatical contain a the court re-
b. The form. Certificate of Service mains convinced that in both form and content the of Service certificate more like the Regarding Certificate looks him, product work of a given prison form had than a claimed Smith the district court the form rejects believed looked administration.” The court product like the work of a prisoner, noting: finding eyeball added based on own its signatures, “The certificate comparison documents, bears no other but here the than Ray’s, appears on plain white court again improperly substituting its paper no heading or other judgment indication own for the district court’s.6 responds any prison- The court typographi- normal document it contains er would want to file such critical motion cal errors. A reasonable inference from the delay, delay any poten- without to avoid appearance of this form is that was not a Smith, prison. Opinion tial provided release at 1016-17. by form but rather reasonable, If such an inference is then it is Ray. one created This inference becomes even more reasonable for the district court to stronger when Certificate of Service form Ray truly have inferred filed a mo- placed typed by to some next of the letters tion with the state court also which the district admitted years have waited more than two Ap- into evidence and which are included as inquire on its instance, status. (For pendices C. B and note the use "()" appropriate "[]" instead of the more *30 documents.) 6. in all eyeball Because the court its own Before the district relies on court, Ray attempted comparison reject of the two documents to overcome infer- findings, ence that he had created Ap- district court’s attached the Certificate of as pendix by tendering copy a Service a he A is of the Certificate form document had of Service Lisbon, Ray form claims he received from the New received from Smith. Wisconsin CCA, (not states). appears This form court to have been created on a from as the noted, form, typewriter Opinion and as the district court at 1013-14. This New Lisbon D, nothing reprinted Appendix contains to indicate it is an official has several as also any purchased not mailing, he had tion for that the finding Moreover, in addition to that responds court like a The postage. looked more of Service Certificate prison, evidence, a testimony than of Ms. by prisoner through form created state’s Ray’s found that also purchase post- court not the district Highley, that did the Certificate concerning testimony not establish did during age documentary other contradicted Service with the provide not Smith Ray did that that Ray testified Specifically, evidence. not rule out Highley “could because motion Certificate him the given had Smith post- that had retained possibility it out. But had filled that he and Service borrowed purchases, from earlier age noted, Ray referenced court the district prisoners, other received stamps from form by Mail” of Service the “Certificate friends family members or postage on letter to Smith first supposed in his Opinion at incarcerated.” who were he letter stated in that but June cross-exami- during that It is true Ray also men- it out. filled she had that that she could Highley nation testified in form of Service the Certificate tioned it was one possibility, but that rule out Staying Order Protective “Motion for his court could the district of evidence piece for Petition Petitioner’s Abeying [sic] And story. And evaluating Ray’s in consider Pursuant Filed Corpus of Habeas Writ record light in of other when considered 2254,” he stated and there § 28 U.S.C. testimony supported evidence, Highley’s Ray’s the form. signed had that Smith findings. Spe- court’s factual the district claim i.e., original from his story, change concerning the testimony Ray’s cifically, the Certificate had filled out that Smith mo- post-conviction state postage he form, version that his current Service other evidence. inconsistent with tion was Had form, significant. is filled had out court, that Ray testified district Before the could story, the state his changed he not on the state stamps for postage he used handwriting analysis, shown, through have gave purportedly he motion post-conviction form.7 completed the Ray had that and borrowed Smith, stating he some had concerning enough Testimony postage. make there sure c. a few a dis- gave it and Smith then postage evidence, provided also state there wasn’t case request bursement calling Highley, testimony of through the However, testimony this enough postage. that he story gave Ray’s question into Ray the affidavit with was inconsistent motion. Smith the February filed that during the time She testified affidavit, Ray stated In relief: habeas court mo- the state gave Smith supposedly it is minor n. while supra at 1023 pris- no official and has typographical errors inconsistency, it adds to the other inferences appearance heading. But its font finding court's factual supporting the district of Ser- Certificate significantly from the differ testimony incredible. The fact-finder could a reasonable And vice form. techni- difference who “it makes no created on also *31 given form. context, him that Smith had above, claimed see quoted out of is Anderson district found it placed postconvic- The court also “notewor- “personally [his] he (sic) (sic) to puruant 974.0614, thy Facility tion motion that the CCA Corporate post- along request with disbursement Policy governing does Diamondback not ” Smith,.... age in the hands of Tamara ‘Privileged Correspon- mention either a having mention of affixed made no Receipt’ dence form or ‘Certificate of High- stamps envelope. to Because form, By specify Mail’ but it does Service ley’s testimony possibility ruled out the privileged the form to be used when corre- stamps that a was made for disbursement an spondence is distributed to inmate.” given have around the time claimed to prison court while the The counters that motion, (i.e., story change this in Smith the policy giving mail does not mention placed claim that current he mail, receipt legal for outgoing the state motion) stamps greater takes on a on the produce pris- some other did Smith or significance. to prove on official that forms were not given. Opinion at But direct 1015. evi- policies. d. Diamondback’s is not required dence and Diamondback’s The court also discounts the state’s evi- policy addressing handling privi- concerning policies dence the mail Dia- leged correspondence circumstantial is evi- First, mondback. the court reasons that supports dence the district court’s nothing explains in the record whether the findings. policy factual That stated that Diamondback inmate mail policy “[a]ll incoming privileged correspondence processed will be through the institutional privileged staff member will distribute “[a] person, mailroom. No either staff or visi- correspondence using to inmates form 16- tors, permitted bring to take out or “AT Conversely, policy 1D.” FA- THIS any inmate,” mail an applies or article for mailing outgoing privileged CILITY” for administratively to prisoners while con- correspondence provided outgo- “[a]ll Opinion policy fined. at 1016. But the mail ing legal logged at the mailroom clearly states inmate More- “[a]ll mail.” it is The when received.” district court over, Ray’s testimony gave that he reasonably could infer from the fact that go motion to Smith because he could policy specified use of a implausible in light mailroom is of his log form to incoming privileged mail and testimony. Specifically, explain- other privileged its directive that outgoing mail ing give how he came the motion to mailroom, logged be that Diamond- Smith, Ray speaks leaving his lunch give prisoners back did not a Certificate of table, cell, going upstairs bringing to his Privileged Correspondence or a Service it envelope with the motion in down- form Receipt upon mailing privileged mail. stairs, going and then into a social work- er’s office with her. It is difficult be- Privileged Correspondence e. The prisoner lieve that a could roam with that Receipt. much freedom be able to walk to the office, social The court next worker’s but be unable to attacks the district walk with findings concerning the social worker to the central- court’s the Privileged ly located Correspondence mailbox mailroom.8 Receipt. district responds knowing 8. The because without wait she had to take another configured, how Diamondback this is "somewhere in the institution.” Based on pure speculation. Opinion testimony, But is reasonable infer that approached testified that when Smith could have taken to the likewise motion, give her the he had to mailbox central or mailroom. *32 explained that the testi- “[b]ased it was doubtful that court found that court Re- Correspondence mony, it is clear that the document Privileged had a ever response, In signed by Smith. Nedbal for ceipt [Corrections Officer] form handed “Ray offered conclusorily states: a the court have been photocopying could document for his essentially uncontested reason an attempt in an to manufacture he created prison library or produce it: the failure evidence to corroborate his additional system the after mail lost document post-convic- that he his state claim handed library copying.” staff it to the for gave mailing tion motion Smith for adds at The court then Opinion 1014. 27, 2004.” The district court further found remotely “The contra- only that: evidence detail in described the which “[t]he testimony might dictory was the that this Request document the Disbursement time both Offi- during have been the first beyond a suggested purpose simple a form that Ms. Martin’s tenure cer Nedbal’s and a for request thirty-cent for disbursement been lost. copy request prisoner’s .had the photocopying.” although And form re- Martin Nedbal and Ms. But as Officer instructions,” the “detailed librarian quires confirmed, if only know prison required detail con- testified “the library it to the staff prisoner reported i.e., copying, the directions for cerned prison official. So or some other sides, copies, legal one or two number of certainly possible Ray’s requested the document or letter size—not to be Opin- first to be copies were not the lost.” The court “Li- copied.” district added: continues, saying at 1014. The court ion expected de- brary personnel were Privileged Correspon- if Ray’s even authenticity of the termine the documents lost, first Receipt to be was dence copying. They submitted screened evidentiary establish an “that fact does not appropriateness material for to insure Ray manufactured finding basis to a different inmate.” it did relate Receipt] [Privileged Correspondence Moreover, prison were not allowed officials about it.” fabricated a fictitious tale legal they mainly to read materials — rea- at The court further Opinion 1014. name of inmate looked to ensure the Martin Nedbal and Ms. sons Officer the document. Based on this tes- matched policy required pris- “testified that timony, Ray’s court found district to describe detail the documents oners lost claim that officials the Privi- ‘sus- they copying anything submit for Correspondence Receipt unconvinc- leged by supervi- be reviewed picious’ would amply supported This ing. finding sor,” included suspicious and that items the evidence. match description where the did not ones flagged no one its content. But dissent, response In to the 1014. Opinion review. submission for speculative leap go “[I]t states: takes credibility testimony And this “lent further mere fact that described the from the had, lost, a Ray’s claim that he but CCA request the disbursement document Opinion Smith.” receipt signed by Ms. to the in a lot of detail conclusion form Opinion it.” at 1014. that he fabricated conclusion, though, court’s flows uncontest- being “essentially Far from misunderstanding Spe- its record. ed,” strenuously challenged the state cifically, the court confuses Disburse- found that story and the district court Photocopy Request form with lost ment [prison “Ray’s officials] evidence requesting A Request form. Privileged Correspondence Receipt forms, both but complete must unconvincing.” photocopy The district [are] form *33 form, Photocopy it is Request the and not out correctly filled and to screen materials form, the Request copying Disbursement which for for appropriateness, no similar must include “detailed instructions as to review of the Request Disbursement form copied.” required; rather, what is to according be But it was the was li- the (contained Request procedures brary record), Disbursement form and not the in the Photocopy Request responsibility merely form that de- the librarian’s was excruciating purport- scribed in the Request detail the authorize Disbursement form Privileged Correspondence indicating ed the Receipt, charged correct amount stating: then route it appropriately. Officer Ned- bal and Librarian testimony Martin’s A
TWO COPIES OF CORRECTIONS evidentiary the hearing confirmed these CORPORATION OF AMERICA Nedbal, facts. And Officer approved who PRIVILEGED CORRESPONDENCE form, the Request Disbursement said he BY RECEIPT FORM SIGNED CCA merely “glanced'at” the “Reason for Re- SMITH, SOCIAL WORKER RE- Later, quest.” when librarian MY GARDING PLACING MY 974.06 screened document submitted for IN HER MOTION APRIL HANDS copying, the compare librarian would document to general description, i.e., And typed description that detailed Mail Ray put “CCA Form Receipt,” in the purported Privileged content of the Photocopy Moreover, Request form. Correspondence Receipt form in the blank testified, Librarian Martin further while entitled: for Request.” “Reason The Dis- merely she would scanning be the docu- Request bursement required form also description ment and contained in the Pho- prisoners to state the “Individual Items Request form, tocopy person “[t]he mak- Requested,” typed and here “2 merely ing copies have read that in Copies of CCA Form.” Then in the Photo- ” more detail.... Ray had previously form, copy Request Ray described the in the library, worked he knew so how the form “2 simply copies as: Mail a CCA processed. were forms Form Receipt/Please’ copies send the I response have The court’s to this is requested to me “the fact through the institu- required tional librarians were not you.” mail. Thank to affir- matively verify authenticity of docu- That Ray included such (including detail copied to be ments does not create a rea- that the purported Privileged Correspon- sonable inference that the document was dence Receipt by form signed was therefore a fake or Opinion nonexistent.” he placed stated that the state court I agree. at 1014. The mere fact that a 27, 2004), motion in hands her librarian was not required verify Request Disbursement form when the authenticity of the copied document to be form merely asked for the “Reason for does create an inference that the docu- Request,” and not in Photocopy Re- ment was therefore a fake or nonexistent. quest form, significant for two reasons. fact But this does mean the form First, found, and as the district court there for copying might submitted not have been is no provide reason to such in the detail the one described inRay the Disburse- Request merely Disbursement which Request ment form. served to request thirty-cent disburse- ment photocopying. Second, while the question Then the is whether the other librarian responsible reviewing was evidence allows for the reasonable infer- Photocopy form Request it was ensure ence that the Privileged Correspondence them, Third, Ray gonna yes.” fake. make testi- Receipt form nonexistent got his hands the fact that fied once Namely, And does: *34 form, Privileged Correspondence Receipt of the con- the extensive details included thought copy was to a copied in the his first make the document to be tent of the lost, form, it was Request supposedly but in the document and after Disbursement form, explained important copy the a reason- he how was. Request creates Photocopy record, Yet, Ray gave according invent to the that he did so to inference able Privileged Correspon- the inference that Officer Nedbal the support to evidence form, Receipt Privi- Disbursement Re- been in existence a dence there had once form, Request Photocopy Request form Correspondence quest form and leged 18, 2010, Sunday. he which was a stating given April that had on signed by Smith no motion mail- the fact that there is mail for Besides her (and Ray delivery Sunday is even on thus did not ing in 2004. This inference it), immediately Photocopy request copy that in the Re- Librari- stronger given “ Sundays Ray ‘Please’ the an Martin did not work on and quest form wrote send she to the requested through copy I to me the because needed screen copies have Ray’s paperwork requests, mail.” There was no reason would need to institutional Monday until Photocopy Request on be held when she returned. Ray for to state the in Ray library to had the he wanted the form returned And worked and he form that proce- of the system, length mail testified about some through him the institutional requests, he copy to create a dures related to so knew premeditated plan absent a things processed.9 the full well how would be purported trail to establish that paper Request Ray’s things, under version of he Privileged Correspondence form Thus extremely over possession mail.” handed of this and then was “lost the existed First, document to Officer Nedbal so that Photocopy Request form does crucial the sitting he could be a basket behind specify how it left not ask the desk, library opposed it handing materials returned. the photocopied wants the Second, waiting Martin and personally Librarian the evidence creates reasonable had, copy in the the to made and handed back the for be inference librarian then, Ray though recog- him. And even personally Ray completed handed past, (and purported Ray specify importance thus needed nized the copies Receipt form, Privileged Correspondence the via copies that he wanted returned Request form possibility). Photocopy mail to he wrote “ the institutional avoid copies requested the I have knew case and ‘Please’ send The librarian about through mail.” copies for Mr. to me the institutional Giv- testified “we did lots of Ray for importance claimed Ray.” Martin also testified that en the Librarian document, it reasonable to Ray copy purported her re- personally had handed usually purported took the Privi- past infer quests in the and she form to Correspondence Receipt completed copies. Ray leged also picked up knew that, library Sunday because he when he past testified there Martin was not copies, “she Librarian asked Librarian Martin ask him about the form10 have gonna then make—she couldn’t screen them she was, library put working library only Nedbal he and thus Officer 9. Besides — paperwork in a basket. making process copies, knowing the Martin was not also testified that Librarian might talk to Martin 10. That Librarian day brought the forms to the there on the copy request if it to her he handed about copy waited; made for him Moreover, while he just wasn’t pro- requested that he copies to be sent vided a description detailed of the sup- via institutional mail so that he could claim posed content of purported Privileged it was lost in the mail. These inferences Correspondence Receipt in the Disburse- are further strengthened when re- ment Request form. Ray’s strange Also sponse purported to the missing Privileged request to have this important form re- Correspondence Receipt form is consid- through turned system, mail ered: filed an Request Information and then inexplicable its disappearance, *35 form seeking information about sup- create an inference that the form never posed form, missing noting that Nedbal existed. There are several additional signed the Disbursement Form and Photo- pieces which, of evidence when taken to- copy Request form “verifying that the doc- gether, further create a reasonable infer- placed ument I in his hands matched what ence that there was no Privileged Corre- I wrote on those forms.” later wrote spondence fact, Receipt. In totality of the warden asking my “for original copy of the evidence Ray’s makes story entire ut- the CCA form to be found and returned to terly implausible. First, as the district me as soon possible as or provided be explained, court Ray had never mentioned a copy the memo that Mr. Lines sent to of the Privileged Correspondence Receipt in matter, about this so I could staff forward any of his documentation April 18, until my e-mail attorney, so he could 2010. And that only was after this court prove copies that the [sic] alone with the granted had his habeas petition on the original copy was some placed how missed merits, but remanded to the district court given (Em- wrong [sic] to the inmate.” for a determination on whether peti- added.) phasis together, Taken all of this tion timely. Yet had specifically evidence up to adds create a very reason- referenced the “Certificate of Service by able and natural inference that Ray had Mail” form in his first purported letter to written a description detailed in the Dis- on June in his “Motion bursement Request form because he knew for Protective Order Staying And Abeying no one would review the detail contained [sic] Petitioner’s Petition for Writ of Habe- that form and then requested he the copies Corpus Filed Pursuant to 28 U.S.C. be through returned prison sys- mail 2254,” § which he filed with his habeas tem so that he feign could their disappear- on February 2007. Ray even ance and later use the forms as noted in bold that he had attached a copy evidence that he had a Privileged Corre- of the Certificate of Service to his spondence motion Receipt form signed by Smith (and Smith). stated that it was signed by which purported verified the mailing of the also copies attached three let- motion. This ters he claims he sent conclusion is not a to Smith asking speculative her leap, but rather to confirm is based on the that she had in- mailed his reasonable motion ferences flowing from the the state pieces various court. The district court aptly evidence, record which put together when stated the absurdity “Yet, of this: he failed form a pretty clear mosaic showing what to even reference the one document [the happened. Privileged Correspondence Receipt] which
personally is given reasonable to infer time, Another printed "LexisNexis.” she had interest she Ray’s had taken in case. She had off a “bio” and the page Ray's Facebook called library down to the from his hous- pro attorney bono given Ray. them to ing unit to show him this court’s decision on accepts if his account that staff.” And even one corroborated supposedly other than his signature testimony that he allowed one of his in- bore someone’s reasonably in- district court own.” mate later helpers who was transferred to the evidence that because ferred from possession a different institution to retain mentioning importance knew the document, nothing a crucial pre- such Mail form the Service Certificate mentioning him from least it in vented surely have also filings, previous filings. of his one Privileged Correspondence mentioned the Privileged failure mention the truly Receipt if one had existed.11 until Correspondence Receipt form after more, though. The district There is this court the case to the dis- remanded Ray’s explanation for court also found that suspect. trict court But extremely “Privileged to mention the Cor- his failure mentioning excuse for not earlier form is in- respondence Receipt” earlier presents greater implausibility an even The district plausible. and not consistent *36 Ray’s story than entire the district court Ray explained that had “testified Here, recognized. the district court mis- helping who him that another inmate was it Ray read the record when stated that it trans- possession had in his when he was “that another inmate who was testified institution, and it to a different ferred possession him had in his helping it when when) (he’s not that wasn’t until later sure he to a different institu- was transferred Ray to it was returned him.” And claimed (he’s tion, it wasn’t until later sure habeas did federal law he not understand when) that it him.” Actu- was returned to form, Ray but the of the significance examination, ally, Ray on direct testified legal proceedings. The was well-versed questioning attorney, under from his own Ray that the fact that district court added opinion that once the Circuit’s Seventh contempo- in motion filed “noted in bold a he April, trying came down “started to that the ‘Certif- raneously with his find inmate trying reach out to the who signed by ‘Tamara icate of Service’ was the institution with Smith,’ was transferred from importance he knew the shows that “I my further was by receipt.” Ray on the testified: signed someone of document (internal quotation reasoning.”) further omit- response: evidence “is 11. The court’s This C.I.R., ted); jump to simply insufficient to the conclusion v. Wisconsin Memorial Park Co. receipt not exist.’’ Cir.1958) that the must therefore (7th (“Frequently 255 F.2d 753 to Opinion But failure ever at 1015. the result of the ultimate issue is resolved as supposed Correspon- Privileged the mention drawing inferences from the evidence re- through years litigation Receipt dence of during in inference is ceived the trial. Trust the the that his first mention of form fact simply if there is a firm basis the belief that only held that his came after this court consti- starting judgment point the derived is for the violated, rights had been creates tutional specula- acceptable. The difference between very was no inference that there reasonable substantiality lies in the tion and inference receipt in instance. This is not such the first constituting premise. the Induc- evidence jumping using inferential to conclusions but reasoning premises tive constitute claims reasoning presented. from the evidence See the conclusions and in law some evidence for Device, 731 v. Article F.2d United States An probability and speak we like- terms Cir.1984) (7th (“[T]he reasoning 1262 premises the conclu- buttress lihood normally begins known facts process sions.”) response wrongly The also court’s for inferred facts from which form basis isolation, without refer- this fact in considers drawn. So which further inferences can be similarly which ence to the several other facts reasonably long is certain as the finder of fact inference, never was a created an inference there it not unreason- preliminary Privileged Correspondence Receipt. the basis for able use that inference as to 2010), you April 1, to mail trying get copy (Thursday, to for me and have So, given only original.” though Ray days get even was the Privi- back, represented by very leged Correspondence Receipt since competent now attor- Ray supposedly dropped copying it off for neys, supposed we are to believe that after Sunday, April reading Within those opinion, he took eighteen days, then, supposed we are upon it himself track down form. believe that first track was able to Ray’s attorney acknowledged he even was down other prisoner, though even loop, stating closing argu- out of the in his prisoner had been transferred more than that “quite frankly, ment I out when found years previously. three That itself had happened Privileged [with what challenge given would be a that in the two Correspondence Receipt] I was livid be- years surrounding litigation, I cause would have driven to Wisconsin himself was transferred to five different myself pick provide that form up and prisons.13 And remember was the Court.”12 “reaching one out”—he didn’t say absurdity even more obvious top-notch asked attorneys help, his everything when the timing is consid- if attorneys tracking were the ones ered. testified that down prisoner, they the former never transferred to another prison with the suggested would have the form be *37 Privileged Correspondence Receipt form Ray mailed to prison. who was still in helping Ray while petition, his habeas Ray Then would have us believe that he (Ray) and that he did not have the Privi- was able to prison- communicate with that leged Correspondence Receipt the time er; prisoner and that that a copy still had that he petition. Ray filed his habeas filed of Privileged Correspondence his Receipt 2007, the habeas in petition February years from than more three And ago. we which means that under Ray’s version of are to further that prisoner believe events, he lost possession of the form was able to send Ray— the document to 27, February sometime before 2007. It leaving prison undergoing one and thus April of years 2010-more than three delay any by proce- caused screening Ray later —when trying “started to reach dures—and then be Ray’s pris- received at trying on, out to find inmate.” Even if clear screening and be to delivered Ray began immediately Ray. search All eighteen of this in days, which infers, 12. quick The court concludes that it not easy, is unusual ther nor court it is Ray attempt would entirely to track down the overly reasonable to infer that an Privileged himself, Receipt Correspondence eager prisoner help would solicit his help attorney, attorney prisoner rather than elicit from his stat- to track down in another (also ing "attorney-client prison subject communication is unknown to a neither transfer to quick easy prison prison), nor new when the client is in because communications be- prisoners any and can be tween such transferred at time with be even slower little any and attorney, if more difficult. delaying notice to the further Opinion communication." at 1015. That ex- planation might Ray 2004, make sense if were at- 13. Ray In was transferred from tempting gather to evidence located within Bay May Diamondback to and Green then But, above, prison. the same as noted Bay Dodge; from Green followed prisoner needed to track down a Dodge who had a transfer from to Columbia and then February been transferred another more than to New from Columbia years Diamondback, previously. three If communications Lisbon. Other than the other attorney between a prisons his are nei- were all located in Wisconsin. less than six months- after And then the trict court came weekends.14 three included story This claims he first became aware that his conveniently it! lost motion was original utterly unbelievable. that filing filed in state court and not knowledge of Ray’s knowledge demonstrates his ‘detailed of habeas law. f. period only one-year limitation not court’s aspect of the district The final also the mail- petitions, federal habeas but reasoning the court attacks is governing tolling rule and the rules box finding assertion court’s district ” one-year period.’ govern- he did not understand law The corpus plausible. ing habeas fact, though, In the record is even more was no evidence court reasons that there damning than what the district branding court’s support the district filed habeas found. While his prison litigant. Opin- aRay sophisticated February signature dated The court first criticizes ion at 1016-17. line of the se Petition for Protective pro statement that the district court’s (sic) Staying Abeying Order Petition- legal materials when or three boxes two Corpus, Writ Habeas which accom- er’s Diamondback. The court then he was at petition, panied habeas November “Were these small shoe rhetorically asks: (And since filed Petition Febru- they or large moving boxes? Were boxes ary 27 must be November November multiple or filled with distinct documents 2006.) Ray signed that document less only unique a handful copies drafts after than two months he sent letter record concluding “[t]he ones?” before inquiring sup- the state court about his Opinion at 1015. say.” does In missing post-conviction motion. posed court, Ray’s pro Petition for Protective Order though, gives short shrift se (sic) reject- Abeying Petitioner’s Staying reason Writ *38 the district court’s other for Ray Corpus, Habeas demonstrated his Ray’s that he did not understand of ing claim law, knowledge of includ- corpus. Ray extensive habeas law habeas governing the limitations, one-year that statute of the ing the district court had testified before (At- rule, tolling principles. mailbox he the state court on October when wrote 2006, E 4, pro peti- as is that se inquire Appendix on the status of tached to motion, nothing question there is no he knew tion so that post-conviction Ray depth Ray’s knowledge.) had to of Thus habeas law and talked about federal clearly importance showing of ex- knew the no one about it. The district court post-conviction he had the state “Ray’s filing given that initial in the dis- that plained 1, April on nor knew the location of the The admits this conclusion is form 14. court that prisoner supposedly it. who had And then force,” says that "un- "not but then without Ray copying for on claimed he sent that form state, actually fortunately for the it did not 18, Thus, Sunday, April 2010. under support Opinion it.” produce any evidence to events, he testified to at the own version of as However, proven conclusion is at 1015. Privileged Correspon- evidentiary hearing, the Ray’s testimony. Specifically, by as detailed eigh- was Receipt form retrieved within dence above, Ray once Seventh testified that days. infer It is more than reasonable to teen opinion April, in he Circuit's came down timing implausibility of this from the sheer trying trying find the “started to reach out up, Ray thing especially the whole that made inmate who was transferred from the institu- difficulty prisoners light delay of in Thus, my receipt.” according to tion with trying when to communicate with their face testimony, pur- Ray's neither had the own he attorneys, as the itself infers. See own court Receipt Opinion at Privileged Correspondence 1014-15. ported 27, mailing argument requires “The state’s us to motion Smith for on be- 2004, Ray lieve that the time he wrote to the knew that mail- around box to a apply rule section 974.06 state court. Given de- Wisconsin Wisconsin, post-conviction motion filed in knowledge of habeas tailed law Novem- 2006, even when the that motion not received Ray is reasonable to infer ber that decide similarly knowledge in state court —issues we to- had detailed Octo- day impression.” of matter first ber the time he wrote the state Opinion at 1017. supposedly inquire court to about the sta- petition.15 tus of his state court theory requires nothing The state’s Rather, the sort. we all need to believe is theory Ray The state’s that 4, 2006, Ray that on knew that October he manufactured evidence. pursue could not habeas relief unless he for given The court’s last main rationale re- a state motion to jecting the district court’s official findings one-year factual within the statute only way Ray seems to be its view that undisputedly limitations.16 And Ray’s testimony not find credible is to had that knowledge November be- sophisticat- believe cause that is the signature “concoet[ed] date line pro ed se “Motion for Protective scheme October 2006 to assert a of his signed rule mailbox claim and Staying Abeying avert AEDPA’s Order And Petition- [sic] one-year Opinion time bar.” at 1016. er’s Corpus Petition for Writ of Habeas later, § court that view stating: reiterates Filed Pursuant to 28 2254.”17 U.S.C. implausi- 15. The court states is not "[i]t stressed he had written on June working 9, 2004, 15, 2005, ble that would obtain a knowl- September and June months, edge especially of habeas in two after again and then he learned after knowledge need such took on in- filed; motion had not been added also urgency creased when he learned that his he had then also written the warden. Opinion state motion never filed.” only then concluded that he "need show might plausible 1015. While it be (sic) 'extraordinary that an circumstances’ be- working knowledge obtained of habeas law in yond application control months, equally plausible two it is to infer equitable tolling necessary obtain feder- knowledge had that in October of al habeas review and he demonstrated due 2006 when he wrote letter to the state diligence trying rectify the matter.” It *39 given totality And court. the the of evidence only appointed was after counsel was that the indicating Ray in this case that concocted the theory equitable tolling of was abandoned. story giving post-convic- entire about the state equitable tolling Ray’s theory But was back in Smith, tion to this motion inference was more October 2006 when sent he the letter to the than reasonable. inquiring post- state court on the of his status explains why conviction motion. This also Ray 16. was also no need to There for foresee Ray would bother to send a letter to Smith holding this that ap- court's the mailbox rule and the warden after he "learned” that the plied ato state motion be- state court had received not his letter—to Ray relying theory cause wasn’t on that but diligence. bolster his claim of theory equitable tolling. on the of In this regard, say: the wrong court is also to "But support Ray 17. In of argue diligently his Motion for Protective does that he followed Order, Ray up the also submitted an during years with undated affida court the two vit, passed argued allegedly gave that which that there were "extraordi from the time he nary beyond pris Ms. Smith his motion to the he filed circumstances” control of time his second, supplemental application Opinion equitable tolling oner of motion.” for to Actually, though, Ray argue necessary 1017. did that obtain the federal habeas review. diligent. he been Ray’s knowledge In the affidavit he filed This affidavit also illustrated along pro petition, Ray tolling his se principle. habeas of the that easily Ray the Wisconsin court shows was been could have Everything else significance of the of completely aware could have created Ray back-filled: Smith, the factual supports to letter and to have mailed he claimed letters Service, documenta- finding Ray manufactured as the Certificate of as well post- support tion to non-existent state Similarly, them 2004. dated merely then motion. up to with the conviction much come it wouldn’t take prison a “Privi- pretending the lost idea of Additionally, the district court reasoned Receipt” during leged Correspondence in following up of diligence lack copying. post- about with the state clerk to he file Moreover, contrary purported to conviction motion the court’s con- 2006, 2004, sup- April there is no until October also evidence clusion that “without up sup- ports Ray the idea made believing” Ray concocted a basis 27, limitations, 2004, I posed April agree. motion. the statute of to avoid scheme truly filed a motion with the that Had circumstantial evidence ample there 2004, 2004, April state court in he would not April mailing Ray invented years in- have waited more than two “Privileged Corre- “loss” Allen, status. See quire on F.3d at Much of this evi- its Receipt.” spondence (“The may take into But there is 1198 district court was discussed above. dence instance, only any and all relevant circum- docu- account more. For still stances, including any diligence lack of on the October ment had notarized was part following in a up of Allen letter he sent to the Wisconsin of a rea- expected on manner that would be the status inquiring state court circumstances, in his gave person sonable supposedly motion he the notice was delivered why deciding notarized the whether asked he 2004. When authorities.”).18 Ray letter, to the tried “Because a court docu- he said it’s diligence by say- lack explain away It’s to the court. like going ment —it’s prisoners told merely ing But that he was other this was court document.” But as the to bother the court. district letter notarized. Yet he he wanted noted, very at the least post-con- aptly have court also the state attempt didn’t have had to contact the state explanation His motion notarized. viction know been trans- court to let it he had no and the existence makes sense transferred not ferred.19 And notary seal the October 2006 letter to on prisoner” delay inquiring such would not only support Allen the conclusion 18. Not does years. than a critical motion more two never it is reasonable infer post-conviction motion gave Smith a state characterizes failure The court inquire didn’t fact that notify court of his transfers as the state *40 filing years, the court's for more than two shortcomings litigant” "Ray’s pro se as a reasoning this a demonstrates own 1014, “simply Opinion which is insufficient explaining why a inference. In reasonable receipt jump to the conclusion that the to post-conviction prisoner might mail a state Opinion not at 1015. must therefore exist.” court, Wisconsin motion Oklahoma to a from things, Ray's of he was But under version being though knew was trans- even he he enough about the status of his mo- concerned Wisconsin, to the court reasons that ferred prisoners to it tion what do. And to ask other delay filing prisoner would “such normal to infer from that is more than reasonable (and consequently, delay his litigant a critical motion proa would at fact that even se prison), notify an potential indefi- the point release the court to court contact time,....” civil period Opinion as a matter of 1016. his transfers —not nite procedure, he received no- but to assure that Similarly, infer "a normal it is reasonable to just once, but four times between sup- prisoner would continue such a letter-writ- posed mailing of the motion in April 2004 ing campaign, absent a give desire to cre- and the first time Ray contacted the state dence to his story given earlier that he had court inquire petition in October petition. Smith the 2006. supra See at 1032 n. 13. end, yes, In we have to believe Moreover, the district court found im- Ray concocted a story the evidence —but plausible Ray’s claim that he sent three as a taken whole overwhelmingly supports, letters to Smith in an effort to confirm she perhaps even compels, that finding. It is mailed the motion to state court. Besides nearly also not sophisticated scheme noting that way there was no to tell from the court thinks isit and it also didn’t have appearance of the letters Ray whether 2004, to start back in but rather could have them, mailed the district court also found just been hatched a few months before it curious that would retain a copy of Ray turned to federal court for habeas a letter he supposedly sent to only relief. month after he handed her his state mo- tion, but did not keep copy of the motion III.
itself. The district court added that was noted, As the court holds that the dis- also curious stated in an affidavit (that trict court’s findings factual Ray was that he also wrote Diamondback regarding not credible and that Ray given had not his lost property on the same dates that Smith a appear motion for on his Smith, letters to but 2004) mailing 27, on April couldn’t clearly were remember if kept he a copy of erroneous. In reaching conclusion, those letters. The district court right though, the gives only these passing inconsistencies all men- rendered tion to Ray’s many of story questionable. It is inconsistencies and also unbe- implausibilities Ray’s lievable that story even though Ray and his sup- noth- heard ing posedly supporting from Smith in response to his documentation which purport- 1, 2004, ed letter, June district court upon he relied justify would continue its to write findings. to her on But 9, 2004, contrary September the court’s at- then even tempts after he to downplay had heard those anything inconsistencies from Smith for year, implausibilities, over a they he wrote to all call did her a third time into And, story question. June And aspects two then, after writing story the state were court and so unbelievable that supposedly learning alone they justify first time that the district court’s factu- filed, (1) motion was not al findings: claimed Ray’s claim of ignorance of again he that wrote to whom, Smith—from habeas law on October when he under events, his version of he never court, wrote to the state just when response received a also next month signed —and habeas warden, to find out happened what to his law, detailed habeas the statute of petition.20 It is utterly limitations, unbelievable that a rule, mailbox tice of what was happening to the motion. given that he had postconviction Smith the Likewise, it is reasonable infer that did motion on 2004. In all of the other court, not contact the notify even to it of his documents, and in his testimony before the *41 transfers, because he had never filed a motion court, district Ray stated he given had Smith court. the 27, April motion the 2004. 20. In both his letter to the warden and his Smith, supposed fourth letter to Ray stated (2) on its face that a reasonable Ray’s implausible claim tolling; and of principle
the
it.”).
not
factfinder would
credit
“Privileged
mentioned the
never
in his habe-
Receipt” form
Correspondence
regret consuming everyone’s
in
I
time
other earlier documentation
petition or
as
minutiae
the record. But
laying out the
of
helping
who had been
prisoner
because the
the court’s conclusion
the dis-
given
had
been
with his habeas
him
in finding
clear error
trict court committed
with that
another
to
transferred
in
Ray
finding
and
that he did
incredible
form
later that
was
form and then
give
not
the state
eighteen
27, 2004,
in
require,
necessary
it is
to
April
lost. That would
motion on
(and
inconsistencies,
attorneys)
many, many
con-
not his
be detail the
days,
tradictions,
Ray’s story,
and omissions
prisoner
the other
who
track down
able
highlighting the sheer im-
in addition to
copy
the form from
still have
of
of
plausibility
aspects
of several
sto-
years,
have the form
more than three
and
light
As these
ry
record.
details
prison sys-
out
successfully mailed
of one
show,
problem with the district court
another,
into
and once
and
tem
delivered
not that the district court branded him
retrieved,
prison mail.
lost in the
Rather, Ray’s problem
a liar.
is that the
implausibilities
I
these two
While believe
reviewed all of the
district court
evidence
are
to affirm the district
alone
sufficient
testify in
and
person
and heard
after
findings,
many
were
there
court’s factual
evidentiary hearing
found that he was
implausibilities
inconsistencies and
other
a liar. This conclusion was not based on
in reach-
upon by the district court
relied
improper
totality
on the
speculation, but
was not credible
finding
its
ing
flowing
inferences
from the
reasonable
post-
given
a state
and that
A thorough review of
record evidence.21
27,
April
to Smith on
conviction motion
this assessment.
cold record verifies
ignores
or
downplays
The court
2012.
record,
But
addition to
district
these,
all
together they
but
demon-
taken
watching Ray’s
court had the benefit of
finding that
that the district court’s
strate
hearing
try
explain
and
him
demeanor
Ray had not
inconsistencies,
was not credible and that
away
vagaries,
all
post-conviction motion
given
story.
Smith a state
Our
implausibilities
and
27,
2004 was well-
mailing
judgment
its
court should
substitute
See,
by
e.g.,
by doing
the evidence.
court’s
supported
for the district
so
Anderson,
575,
great lengths today
danger-
bore the burden of proving Ray had not
APPENDIX A *43 APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E *48 EQUAL EMPLOYMENT OPPOR COMMISSION, TUNITY Plaintiff-Appellant, v.
THRIVENT FINANCIAL FOR LUTHERANS, Defendant- Appellee. No. 11-2848. United States Court Appeals, Seventh Circuit. Argued Sept. 2012. Decided Nov. not be notes this form could infer that form, long demon- so as it cally (given the font and out filled typewriter by a to mail Ms. Smith large and had asked differing font strates sizes—some the use of It is Opinion at 1013-14. small), motion.” Service out his while the Certificate some who out filled it wouldn't matter true that have been. form could by truly given to it were form if mo- request mail out the response to his stating responds first 7. The court sup- story changed does But quoting tion. inconsistency then minor lying But, he is when port inference that an Anderson, as discussed Opinion at 1013.