Earl Wilson v. JOHN C. BATTLES , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4336
E ARL W ILSON ,
Petitioner-Appellant,
v.
J OHN C. B ATTLES , Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CV 7969—Wayne R. Andersen, Judge.
____________
A RGUED J UNE 3, 2002—D ECIDED S EPTEMBER 10, 2002
____________
Before B AUER , R IPPLE and K ANNE , Circuit Judges.
B AUER , Circuit Judge. Petitioner Earl Wilson was con-
victed of two counts of first degree murder and sentenced
to life imprisonment. He filed a petition for writ of habeas
corpus in the district court. The court dismissed his peti-
tion as untimely. Wilson appeals and we affirm.
BACKGROUND
Following a jury trial in the Circuit Court of Cook County,
Earl Wilson was convicted of two counts of first degree
murder and sentenced to life imprisonment. After an un-
successful direct appeal, Wilson filed a petition for post-

-- 1 of 6 --

2 No. 01-4336
conviction relief on October 11, 1991. The trial court dis-
missed this petition on February 4, 1997. The Illinois Ap-
pellate Court affirmed the dismissal of the post-con-
viction petition on August 11, 1999. Wilson then filed a
petition for leave to appeal (PLA) in the Illinois Supreme
Court. The supreme court entered an order denying Wil-
son’s PLA on December 1, 1999.
On December 20, 2000, Wilson filed a petition for writ
of habeas corpus in the district court. The court found
that the habeas petition was time-barred, but applied
the doctrine of equitable tolling to excuse the untimeliness.
The respondent filed a motion to reconsider, which the
district court granted, and Wilson’s petition was then dis-
missed as untimely. He appeals this dismissal.
ANALYSIS
The Anti-Terrorism and Effective Death Penalty Act
of 1996 (AEDPA) requires a state prisoner seeking fed-
eral habeas corpus relief to file his petition within one
year after his state conviction becomes “final.” 28 U.S.C.
§ 2244(d)(1)(A). The statute also provides that the time
during which an application for post-conviction relief
is “pending” shall not be counted toward the one-year
limitation period. 28 U.S.C. § 2244(d)(2). The issue of
whether a post-conviction petition is pending for habeas
purposes is governed by state law. Jefferson v. Welborn,
222 F.3d 286, 288 (7 th Cir. 2000) (holding that the Illi-
nois Supreme Court is “the master of its own procedural
rules”); see also Fernandez v. Sternes, 227 F.3d 977, 978
(7 th Cir. 2000) (whether a petition is properly filed and
thus AEDPA’s limitations period depends on state law).
We review a district court’s dismissal of a petitioner’s
habeas petition de novo. Anderson v. Litscher, 281 F.3d
672, 673 (7 th Cir. 2002).

-- 2 of 6 --

No. 01-4336 3
Illinois Supreme Court Rule 367 provides that a party
can file a petition for rehearing within 21 days after a
reviewing court’s ruling in a case. Wilson first argues
that the district court erred in dismissing his habeas
petition because his post-conviction petition remained
“pending,” for purposes of the habeas statute of limita-
tions, until the expiration of 21 days following the Court’s
PLA denial, during which time he was permitted to file
a petition for rehearing. The Illinois Supreme Court en-
tered an order denying his PLA on December 1, 1999
and Wilson asserts that this petition remained “pending”
until December 22, 1999, when the Illinois Supreme
Court lost jurisdiction to reconsider. Accordingly, he ar-
gues, his habeas petition was timely filed on December 20,
2000, because it was within the one-year AEDPA statute
of limitations period.
We agree with the district court that Wilson was re-
quired to file his habeas petition on or before December 1,
2000. For purposes of habeas review, an application for
collateral review is “pending” until it has “achieved final
resolution through the State’s post-conviction procedures.”
Carey v. Saffold, 122 S.Ct. 2134, 2138 (2002). In Illinois,
the case law is quite clear that the judgment of an Illi-
nois court of review is final on the day on which it is
entered. PSL Realty Co. v. Granite Inv. Co., 427 N.E.2d 563,
569-70 (Ill. 1981) (holding that a judgment is final when
entered; “the filing of a petition for rehearing does not
alter the effective date of the judgment of a reviewing
court, unless that court allows the petition for rehear-
ing, in which event the effective date of the judgment
is the date that the judgment is entered on rehearing”);
Brandon v. Caisse, 527 N.E.2d 118, 120 (Ill. App. Ct.
1988); People v. Dukes, 497 N.E.2d 351, 356 (Ill. App. Ct.
1986). Therefore, the judgment on Wilson’s post-convic-
tion petition became final when the Illinois Supreme
Court entered its order denying Wilson’s PLA—on Decem-

-- 3 of 6 --

4 No. 01-4336
ber 1, 1999. See, e.g., Hernandez v. Caldwell, 225 F.3d 435,
438 (4 th Cir. 2000); Guenther v. Holt, 173 F.3d 1328, 1331
(11 th Cir. 1999); Barnett v. Lemaster, 167 F.3d 1321, 1323
(10 th Cir. 1999) (holding that a post-conviction petition tolls
the one-year habeas time limit, only until the relevant
state supreme court denies certiorari). Any provision
allowing time for a rehearing petition has no bearing on
AEDPA’s one-year statute of limitations.
Wilson relies on case law from other circuits in which
courts have held that the term “pending” encompasses time
during which a petitioner could have sought further ap-
pellate review of a post-conviction petition. This argument
is misplaced. In Wilson’s case, further appellate review
was no longer available. Instead, the state supreme court
rendered a final judgment on his petition. Although his
petition could be resuscitated, further review by a higher
state court was no longer available and therefore, his
petition was no longer “pending.” Fernandez, 227 F.3d
at 979; see also, Gutierrez v. Schomig, 233 F.3d 490, 491
(7 th Cir. 2000) (holding that the one-year limitations peri-
od is not tolled during the ninety-day period that a
state post-conviction petitioner could have filed, but did
not file, a petition for certiorari review in the United
States Supreme Court). Habeas petitioners are not re-
quired to ask for a rehearing of the state court’s ruling
in order to fulfill the exhaustion requirement. O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). We agree with the
district court that “there is [sic] difference between giving
a petitioner credit for time needed to exhaust his state
court remedies prior to filing a federal case . . . and con-
tinuing to toll it after the state’s highest court has ruled.”
United States ex rel. Wilson v. Battles, 2001 WL 1064536
(N.D. Ill. Sept. 10, 2001).
Wilson asserts that the Illinois Supreme Court did not
render a “final judgment” on his PLA until the expiration
of the 21 days for the filing of a rehearing petition. This

-- 4 of 6 --

No. 01-4336 5
argument is without merit: the Illinois Supreme Court
did not render any judgment after its order on December 1,
1999. It should be noted, as well, that Wilson never both-
ered to file any such rehearing petition, so his insis-
tence that this provision has any relevance or affect on
the deadline is further undermined. Wilson’s state court
remedies were fully exhausted once the supreme court
entered its final judgment denying his PLA on December 1,
1999, and this triggered AEDPA’s statute of limitations.
The conviction became final for AEDPA purposes on
December 1, 1999, and his failure to file a habeas peti-
tion within one year from this date warranted the dis-
missal.
In the alternative, Wilson argues that the district court
should have applied the doctrine of equitable tolling
to excuse his untimeliness. He insists that his circum-
stances warrant equitable tolling because his untimely
petition was based on his attorney’s good faith confu-
sion about the filing deadlines and the fact that his peti-
tion was filed only 19 days late. We disagree.
Equitable tolling excuses an untimely filing when a
petitioner could not, despite the exercise of reasonable
diligence, have discovered all the information he needed
in order to be able to file his claim on time. Taliani v.
Chrans, 189 F.3d 597, 598 (7 th Cir. 1999). The statute of
limitations under AEDPA can, in appropriate exception-
al circumstances, be equitably tolled. Id. at 598; see also,
Johnson v. McCaughtry, 265 F.3d 559, 566 (7 th Cir. 2001).
Generally, a lawyer’s mistake is not a valid basis for
such equitable tolling. See Taliani, 189 F.3d at 598 (stat-
ing that “forcing the defendant to defend against the
plaintiff’s stale claim is not a proper remedy for negli-
gence by the plaintiff’s lawyer”). Moreover, if Wilson and
his attorney were unclear about the deadline, he “should
have filed by the earliest possible deadline, not the lat-
est.” Id. In addition, Wilson’s assertion that his petition

-- 5 of 6 --

6 No. 01-4336
was only 19 days late does not lend support to his posi-
tion; the length of the delay in filing has no bearing on
this analysis; equitable tolling will apply only to excep-
tional cases, regardless of how minimal the delay in filing.
See, e.g., United States v. Marcello, 212 F.3d 1005, 1010
(7 th Cir. 2000) (refusing to grant equitable tolling when,
due to attorney error, petitioner’s claim was filed only
one day late).
“Equitable tolling is granted sparingly” only when “ex-
traordinary circumstances far beyond the litigant’s con-
trol . . . prevented timely filing.” Id. We do not find any-
thing extraordinary about Wilson’s case. The district court
properly concluded that the doctrine of equitable tolling
was not applicable in Wilson’s case.
CONCLUSION
We hereby A FFIRM the district court’s dismissal of Wil-
son’s habeas petition.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-10-02

-- 6 of 6 --