Gregory Scott Johnson v. DANIEL M C BRIDE , Superintendent, Maximum Control Facility

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1354
G REGORY S COTT J OHNSON ,
Petitioner-Appellant,
v.
D ANIEL M C B RIDE , Superintendent,
Maximum Control Facility,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. IP 98-963-C-Y/K—Richard L. Young, Judge.
____________
A RGUED A UGUST 10, 2004—D ECIDED A UGUST 20, 2004
____________
Before B AUER , E ASTERBROOK , and M ANION , Circuit
Judges.
E ASTERBROOK , Circuit Judge. A jury convicted Gregory
Scott Johnson of bludgeoning and kicking Ruby Hutslar to
death during a burglary; it found that Johnson set fire to
her home in an effort to conceal his crimes. The jurors
found aggravating circumstances and no mitigating circum-
stances; they recommended that Johnson be sentenced to
death. The trial judge agreed and imposed that penalty. The
Supreme Court of Indiana affirmed on direct appeal, 584
N.E.2d 1092 (Ind. 1992), and rejected Johnson’s collateral

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2 No. 04-1354
attack. 693 N.E.2d 941 (Ind. 1998). That decision became final
on June 26, 1998, so Johnson had until June 28, 1999, to
seek federal collateral review. 28 U.S.C. §2244(d)(1). (June 26,
1999, the end of the statutory year, was a Saturday; the
deadline therefore rolled forward to the following Monday.)
Johnson’s lawyer waited until June 25 to mail the petition
to the district court, which received and filed it on June 29.
Eventually the judge dismissed the petition as untimely.
Section 2244(d)(1)(A) provides that the petitioner has a
year from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review”; this language sets the outer limit
at June 28. Johnson contends that we should use
§2244(d)(1)(D) instead; this subsection starts the period on
“the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.” See Owens v. Boyd, 235 F.3d 356
(7th Cir. 2000). The “claim” presented in this federal collateral
attack is that Indiana violated the due process clause of the
fourteenth amendment by withholding evidence that Paul
Decker participated in the offense, something that (if true)
might have enabled Johnson to reduce the degree of his own
culpability. This is not a newly discovered claim; it is the
same claim presented in state court. (On the definition of a
“claim,” see Brannigan v. United States, 249 F.3d 584 (7th
Cir. 2001).) Indiana’s judiciary deemed it to be a bad one
because (a) Johnson did not contend in his confessions or at
trial that Decker played any role in the offense; (b) even
after trial no evidence has emerged that Decker partici-
pated. What Johnson now contends is that the police must
have suspected Decker, or they would not have sought a
judicial order to obtain hair samples that they compared with
hairs found at the crime scene. According to Johnson’s
current lawyers, the fact that the application for this order
has never been disclosed to the defense means that the
state is still hiding something and accordingly that the time

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No. 04-1354 3
to file a federal collateral attack has not started to run; that
won’t happen, Johnson maintains, until he receives the
application and thus learns why the police told the court
that they wanted to test Decker’s hairs.
Speculation about what the police may have thought early
in their investigation is some distance from knowledge that
the state had, yet concealed, material exculpatory evidence.
See United States v. Agurs, 427 U.S. 97, 108-10 (1976);
Mahaffey v. Schomig, 294 F.3d 907, 917 (7th Cir. 2002).
Testing showed that Decker was not the source of the hair.
This record does not suggest anything other than a pain-
staking investigation by the police. Johnson would have
known himself whether Decker participated; his role is not
something that the prosecutor could have concealed. A
desire to see more information in the hope that something
will turn up differs from “the factual predicate of [a] claim
or claims” for purposes of §2244(d)(1)(D). The district judge
therefore was right to use §2244(d)(1)(A) to identify the last
day Johnson had to get a collateral attack under way.
Counsel bungled the job in two ways. First, she waited
until the final business day of the statutory year. Prudent
lawyers act sooner, so that Murphy’s Law will not under-
mine a client’s interests. Second, counsel used first-class
mail rather than Federal Express or another service that
guarantees next-business-day delivery, or (better still) sending
a messenger to the courthouse to file in person. Apparently
counsel believed that use of the mails would add three days to
the time available. Yet Fed. R. Civ. P. 6(e) applies only to
documents “served” on opposing counsel, not to documents
such as complaints or notices of appeal that must be filed in
court. Nothing in the Rules Governing Section 2254 Cases
in the United States District Courts treats any document as
“filed” before actual receipt by the district court’s clerk.
Johnson concedes that his lawyer erred in supposing that
use of the Postal Service adds to the time available for filing
a petition. What he contended in the district court, and

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4 No. 04-1354
repeats here, is that lateness should be excused because
delay was counsel’s fault.
Johnson calls the argument one for “equitable tolling,”
which excuses delay when “despite all due diligence [the liti-
gant] is unable to obtain vital information bearing on the
existence of his claim.” Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 451 (7th Cir. 1990), relying on Holmberg v.
Armbrecht, 327 U.S. 392 (1946). Section 2244(d)(1)(D) codi-
fies that doctrine, which as we have already held does not
assist Johnson. Other events might justify delay, see Taliani
v. Chrans, 189 F.3d 597 (7th Cir. 1999), but only if they (a)
are unrelated to the tolling criteria built into §2244, and (b)
show interference with a prisoner’s ability to commence a
collateral attack. See Brooks v. Walls, 279 F.3d 518, 525
(7th Cir.), rehearing denied, 301 F.3d 839 (2002). No one
interfered with Johnson’s ability to pursue collateral relief
in a timely fashion. He wants us to treat his own lawyer as
the source of interference, but lawyers are agents. Their
acts (good and bad alike) are attributed to the clients they
represent. Pioneer Investment Services Co. v. Brunswick
Associates Limited Partnership, 507 U.S. 380, 396-97 (1993);
National Hockey League v. Metropolitan Hockey Club, Inc.,
427 U.S. 639 (1976); Link v. Wabash R.R., 370 U.S. 626,
633-34 (1962); Societé Internationale v. Rogers, 357 U.S. 197,
212 (1958). The sixth amendment creates an exception to
this principle for criminal prosecutions. Cuyler v. Sullivan,
446 U.S. 335, 344 (1980). Once trial and direct appeals have
run their course, however, neither the sixth amendment nor
federal law guarantees effective assistance of counsel for col-
lateral proceedings, not even in a capital case. See Coleman
v. Thompson, 501 U.S. 722, 752-54 (1991); Murray v.
Giarratano, 492 U.S. 1 (1989); 28 U.S.C. §2254(i). So it is as
if Johnson himself had made the decisions that led to the
delay.
Modrowski v. Mote, 322 F.3d 965 (7th Cir. 2003), illustrates
the point. Counsel filed a collateral attack one day late, and

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No. 04-1354 5
the prisoner insisted (just as Johnson does) that counsel’s
shortcomings should be treated as an excuse. Modrowski
contended that his (former) lawyer experienced “a series of
physical and mental ailments [that] prevented him from
working on the petition and filing it on time.” 322 F.3d at
966. We replied that
attorney incapacity is equivalent to attorney negli-
gence for equitable tolling purposes. We will not re-
visit our long-standing determination that petition-
ers bear ultimate responsibility for their filings, even
if that means preparing duplicative petitions: pe-
titioners, “whether in prison or not, must vigilantly
oversee the actions of their attorneys and, if nec-
essary, take matters into their own hands.” Johnson
[v. McCaughtry, 265 F.3d 559 (7th Cir. 2001)] at
566. Furthermore, no principled distinction exists
between incapacity and negligence for equitable toll-
ing purposes. Even if a prisoner diligently checks an
attorney’s references and disciplinary records, he
still cannot prevent the attorney from bungling his
case. Nonetheless, we hold the prisoner responsible
for his attorney’s bungling. Likewise, a prisoner
cannot prevent his attorney from becoming incapac-
itated, and there is no reason, however unfortunate
the result, not to hold the prisoner responsible in this
type of situation, as well.
322 F.3d at 968. Johnson’s situation is the result of a simple
gaffe by counsel; he has less claim to extra time than
Modrowski did.
Modrowski’s sentence was life imprisonment; Johnson
contends that prisoners under sentence of death should re-
ceive different treatment. Yet neither the text of §2244(d)
nor the principle that lawyers are agents for their clients
draws any distinction between capital punishment and
other sanctions. The Supreme Court held in Coleman and

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6 No. 04-1354
Giarratano that all prisoners, including those sentenced to
death, are responsible for their own legal affairs on colla-
teral attack and cannot demand a lawyer at public expense
or obtain relief from the shortcomings of their counsel. In
Coleman a prisoner’s post-conviction counsel filed his notice
of appeal in state court three days late; this default meant
that Coleman failed to exhaust available state remedies and
thus wiped out the prospects of collateral review in federal
court. The Supreme Court recognized that counsel was to
blame but enforced the default nonetheless, holding that
there would be no special dispensations in capital proceed-
ings.
To the extent Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir.
2001), suggests that attorneys’ errors in handling collateral
attacks against death sentences justify equitable tolling
even though the identical conduct in other cases would not,
it is hard to reconcile with Coleman, which the third circuit
did not mention. We agree with Rouse v. Lee, 339 F.3d 238,
251 (4th Cir. 2003) (en banc)—another capital case in which
counsel foolishly waited until the end to mail a petition and
believed that Rule 6(e) added three days to the statutory
filing deadline—that “[a]llowing consideration of the merits
of time-barred claims to creep into the equitable tolling
analysis lets petitioners effectively circumvent the statute
of limitations because the merits of their claims will always
be considered. This would enable petitioners who were in no
way prevented from complying with the statute of limita-
tions to create delay and undermine finality—two of the
reasons that precipitated enactment of the AEDPA statute of
limitations. [It is thus best never] to apply equitable tolling
based on a factor that had nothing to do with [a] failure to
file on time.” It is unnecessary to add to the discussion of
this subject in Rouse, 339 F.3d at 251-56.
Johnson enjoyed thorough consideration by the Supreme
Court of Indiana on both direct appeal and collateral attack.
To obtain another round of review in federal court, Johnson

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No. 04-1354 7
had to meet the statutory criteria. He did not do so, and we
are not authorized to excuse his non-compliance. The
statute itself holds out one last opportunity, however: if
exculpatory evidence should emerge, distinct enough to
create a separate “claim,” then §2244(b)(2)(B) could allow
Johnson to file a successive petition. (This subsection
applies when “(i) the factual predicate for the claim could
not have been discovered previously through the exercise of
due diligence; and (ii) the facts underlying the claim, if
proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the
underlying offense.”)
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-20-04

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