Steven D. JOHNSON, Petitioner-Appellant, v. Brian FOSTER, Respondent-Appellee.
No. 13-2008.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 12, 2014. Decided May 6, 2015.
501
William L. Gansner, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.
Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
SYKES, Circuit Judge.
A jury convicted Steven Johnson of several state gun crimes arising out of a shootout in Milwaukee. He challenged his convictions in a state post-conviction motion, but the trial court denied the motion and the state court of appeals affirmed. Johnson had 30 days to petition for review by the Wisconsin Suprеme Court. He applied for a loan from the prison Business Office to help cover the cost of the paper, photocopying, and postage necessary to file the petition; Wisconsin law permits inmates to borrow up to $100 annually for that purpose. The Business Office denied his request, but Johnson contends that he met the eligibility requirements and the loan was unlawfully denied.
Johnson never filed a petition for review in the state supreme court. Instead, he sought federal habeas relief under
The district court rejected this argument, and we affirm. Johnson has not established that the denial of his loan аpplication was an objective, external impediment to his ability to comply with the state court‘s procedural rules or that it actually prevented him from petitioning for review in the Wisconsin Supreme Court. Moreover, Johnson‘s argument rests on his contention that the Business Office misinterpreted or misapplied prison policies governing the loan program. No state court has ruled on that question. For a federal habeas court to excuse a procedural default based on its own interpretation of a state prison рolicy—without guidance from the state courts—would be starkly contrary to the principles of federalism and comity that constrain all federal habeas review.
I. Background
On November 8, 2007, Steven Johnson exchanged gunfire with his ex-girlfriend‘s brother-in-law in the parking lot of a Milwaukee-area Family Dollar store. He was charged with four gun crimes under Wisconsin law. A jury found him guilty on all counts, and he was sentenced to 22 years in prison.
Johnson alleges in his federal habeas petition that two constitutional violations occurred during his state-court proceedings: First, the court refusеd to continue the preliminary hearing in order to give him time to hire the lawyer of his choice, and later it denied his multiple requests to represent himself.
Johnson attempted to raise these and other claims in a direct appeal. Because his filing was untimely, however, the trial court construed it as a motion for postconviction relief under
The appeal remained pending for well over two years. At some point Johnson sought reinstatement of his direct appeal rights but that motion was denied. In December 2011, while his appeal was still pending, he filed a premature
In early May 2012, Johnson applied for a loan from the prison Business Office undеr a state program that permits loans of up to $100 per year to assist prisoners in paying for the paper, photocopying, and postage needed to file legal documents. See
A review of your income and expenditures shows that you had deposits of $55.00 and canteen expenditures of $17.90 over the last 60 days. The canteеn purchases were primarily junk food. These funds could and should have been used to meet your legal needs.
We will reconsider your request to reinstate your legal loan at a future date. In the meantime, you may take advantage of the free weekly envelope/mailing for those who qualify.
Johnson never filed a petition for review in the Wisconsin Supreme Court. Accordingly, the district court denied his
Johnson filed a notice of appeal. A motions judge of this court construed the notice as a request for a certificate of appealability and authorized an appeal on the two constitutional claims mentioned above. The order also instructed the parties to address the issue of procedural default.2
II. Discussion
The first and ultimately dispositive question is whether Johnson‘s procedural default may be excused. We review the district court‘s ruling on that issue de novo. Miller v. Smith, 765 F.3d 754, 764 (7th Cir.2014).
Federalism and comity principles pervade federal habeas jurisprudence. One of these principles is that “in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner‘s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To protect the primary role of state courts in remedying alleged constitutional errors in state criminal proceedings, federal courts will not review a habeas petition unless the prisoner has fairly presented his claims “throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in post-conviction proceedings.” Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir.2014);
Procedural default is one application of the “adequate and independent state ground” doctrine: “When a state court resolves a federal claim by relying on a state law ground that is both inde-
As we‘ve noted, Johnson‘s direct appeal was deemed untimely, so the state trial court construed the filing as a post-conviction motion and denied it. Johnson appealed, and on April 19, 2012, the Wisconsin Court of Appeals affirmed. Under the state court‘s procedural rules, Johnson had 30 days from that date to petition the Wisconsin Supreme Court for review. See
A federal court may excuse a procedural default if the habeas petitioner establishes that (1) there was good cause for the default and consequent prejudice, see Murray v. Carrier, 477 U.S. 478, 491, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or (2) a fundamental miscarriage of justice would result if the defaulted claim is not heard, see Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The second ground is satisfied only when the claimed constitutional violation probably caused an innocent person to be convicted. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Johnson does not make that argument here. Instead he contends that his procedural default should be excused for cause and prejudice.
“Cause is defined as an objective factor, external to the defense, that impeded the defendant‘s efforts to raise the claim in an earlier proceeding.” Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir.2013) (internal quotation marks omitted). “Prejudice means an error which so infected the entire trial that the resulting conviction violates due process.” Id.
For example, wе recently said that confiscation of a prisoner‘s legal materials can establish cause for a procedural default. Weddington, 721 F.3d at 466; see also Buffalo v. Sunn, 854 F.2d 1158, 1165 (9th Cir.1988) (recognizing cause if a prisoner was denied access to his legal materials, in contravention of prison policy, during a lockdown). Other courts have recognized interference by prison officials as a cause to excuse a procedural default if the prisoner tendered his legal documents to the prison mailroom before the filing deadline, but they are not received by the court clerk until after the deadline has passed.4 See, e.g., Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir.2013); Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir.1999); cf. Ray v. Clements, 700 F.3d 993, 1006 (7th Cir.2012) (holding that the prison mailbox rule applies when determining whether a petitioner‘s state postconviction motion was properly filed for the purposes of triggering
The claimed impediment here—the Business Office‘s denial of Johnson‘s request for a legal loan—is not quite like any of these examples. To properly evaluate it, we need to clarify exactly what Johnson‘s “cause” theory is. After all, he “has no constitutional entitlement to subsidy to prosecute a civil suit.” Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003) (internal quotation marks omitted);5 see
Loans to prisoners for legal expenses are governed by
This is not the interpretation adopted by the Division of Adult Institutions (“DAI“), which has published loan-eligibility policies to guide prison administrators in implementing the program. DAI Policy # 309.51.01(II) provides that “[c]riteria used by facility staff to determine eligibility or ineligibility for a legal loan include, but are not limited to” ten listed factors. For example, the policy permits consideration of “[i]nmate account balances,” the “[n]ature of pending litigation and current legal needs,” and “[t]he inmate‘s history of repayment of legal loans.” DAI Policy # 309.51.01(II)(A), (E), (I). The Businеss Office‘s reason for denying Johnson‘s application comports closely with subsection (D) of the policy: “[r]ecent spending patterns, including canteen purchases, outside purchases, and funds to family.” Id. at (D) (emphasis added).
Johnson insists that he could not have been expected to manage his own finances “in anticipation of a legal need that did not exist at the time of his purportedly irresponsible canteen purposes.” If Johnson is suggesting that he had no general responsibility to manage his funds in anticipation of a forthcoming important legal need, he‘s incorrect: “[L]ike any other civil litigant, [an inmate] must decide which of his legal actions is important enough to fund.” Lindell, 352 F.3d at 1111. It‘s
Furthermore, to qualify as good cause to exсuse Johnson‘s procedural default, the denial of his loan application must have made the timely filing of a petition for review “impracticable” and it must be a factor “external” (that is, not attributable) to him. Even if we were to accept Johnson‘s argument that the Business Office misinterpreted or misapplied the loan-eligibility regulation and policy, it‘s not clear that the loan denial made it “impracticable” for him to file a petition for review or that it qualifies as a cause “external” to him.
Johnson argues that the denial of his loan application prevented him from filing a petition for review because he had depleted his own funds in reliance on the loan-eligibility criteria. See McCleskey, 499 U.S. at 497-98 (“For cause to exist, the external impediment ... must have prevented petitioner from raising the claim.“). In other words, the Business Office‘s misapplication of the eligibility criteria pulled the rug out from under him.
We‘ve rejected a similar reliance-based argument before, albeit under somewhat different circumstances. In Moore v. Casperson, 345 F.3d 474, 487 (7th Cir.2003), we held that a prisoner‘s reliance on circuit precedent later overturned by the Supreme Court was insufficient to establish cause to excuse a procedural default. We explained in Moore that the “subsequently overruled circuit decision ... did not actually impede the effort to comply with any state court rule” but rather “removed an incentive for compliance by indicating (erroneously) that a particular action was not necessary for federal habeas review purposes.” Id. In other words, reliance on legal precedent is not enough by itself; there must be a discrete, identifiable impеdiment to the prisoner‘s ability (rather than his motivation) to comply with the state‘s procedural rules. Applying the same understanding here, Johnson‘s purported reliance on the loan-eligibility criteria may help explain why he didn‘t keep a larger reserve in his account, but it did not impede his ability to file a petition for review in a concrete sense or otherwise make compliance with the state‘s procedural rules “impracticable.”
In addition to impracticability, Johnson must also show that the Business Office‘s loan denial was truly external to him and not attributable to his own actions. Johnson insists that under the DOC regulation and DAI policy, he was entitled to a loan; his canteen spending was not a proper reason to deny his request. The Business Office obviously disagreed. Who‘s right? The answer requires an interpretation and application of
Here, of course, no state court or administrative adjudicator has addressed Johnson‘s claim that the Business Office misinterpreted the loan-eligibility criteria. That‘s part of the problem. Johnson never sought review from, much less exhausted, the inmate complaint review system on this issue. See
Without a ruling from a state court or agency that the denial of his loan request was unlawful, we cannot conclude that Johnson‘s reliance on his ability to access a loan was well placed. If it wasn‘t, then his inability to file a petition was attributable to the risk he assumed by relying on his own unverified interpretation of the loan-eligibility criteria—not to any external interference by prison officials. Only a Wisconsin court or agency‘s interpretation of the state regulation and policy—or a concession by the State—could provide us with the authority to excuse Johnson‘s default on this ground. But since Johnson never presented the issue to any state authority for review, a federal habeas court cannot be the first to interpret the loan-eligibility requirements.
Finally, the record does not support a conclusion that the loan denial actually impeded Johnson‘s ability to file a petition for review in the Wisconsin Supreme Court. The prison trust-account statement in the record shows that Johnson had $25.80 in available funds as of May 14, 2012, the day his loan request was denied. It‘s not clear that this amount wouldn‘t cover the photocopying and postage expenses for a petition for review. As the district court noted, “[e]ven given Johnson‘s expenditures and withholdings, his prison trust account statement shows a
When asked about this issue at oral argument, Johnson‘s counsel replied that the record was “confusing” on this point but “there is some information” that Johnson “wasn‘t able to buy postage or anything with that money based on his current status.” This seems to suggest that Johnson was prohibited from accessing part or all of his account balance, but nothing in the record or the briefs supports that claim. We decline to cоnsider it.8
In sum, Johnson failed to ask the Wisconsin Supreme Court to review his constitutional claims before bringing them to federal court in a
AFFIRMED.