Simms v. Acevedo

595 F.3d 774

Darryl SIMMS, Petitioner-Appellant, v. Gerardo ACEVEDO, Respondent-Appellee.

No. 07-2999.

United States Court of Appeals, Seventh Circuit.

Argued April 13, 2009.

Decided February 19, 2010.

Jerold S. Solovy, Rachel S. Morse (argued), Jenner & Block, Chicago, IL, for Petitioner-Appellant.

Michael R. Blankenheim (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before CUDAHY, POSNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Before us is Darryl Simms's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Like so many habeas cases, this one turns not on principles of constitutional or criminal law, but on state procedural requirements. At issue are two petitions that Simms filed in Illinois state court. If either was properly filed when Simms contends it was, his federal petition for habeas corpus is timely and should be addressed on the merits. But if not, Simms's federal petition is barred by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1), unless his circumstances merit equitable tolling of the limitations period.

Simms was convicted in 1985 of murder, aggravated criminal sexual assault, robbery, home invasion, and residential burglary. After a bench trial, he was sentenced to death. On appeal, his conviction was affirmed, but his sentence was vacated and the case was remanded to the trial court. On remand, he was again sentenced to death, this time by a jury. He appealed again and the case was remanded again because of a bad jury instruction. On remand, he was again sentenced to death by a jury. He appealed, the death sentence was affirmed, and certiorari was denied.

In 1995, while his appeals were pending, Simms filed a pro se petition for post-conviction relief in Illinois circuit court. In May 1997, he amended his petition, this time with the help of counsel. In August 1998, the petition was dismissed. Simms appealed to the Illinois Supreme Court and the court remanded the case, in August 2000, to the circuit court with instructions to hold an evidentiary hearing on Simms's Brady v. Maryland claims. In January 2003, Illinois's then-governor, George Ryan, commuted Simms's death sentence (and those of all Illinois's capital offenders) to a term of life imprisonment without the possibility of parole. Simms withdrew his Brady claims on June 22, 2004, before the evidentiary hearing was held; Simms states that he withdrew his petition because he did not want to jeopardize the commutation of his sentence. On July 7, 2004, the trial court entered an order acknowledging the withdrawal of Simms's claims in Illinois state court.

Apparently his fears regarding the commutation of his sentence were assuaged sometime around June 7, 2005, because at that point (although the exact date is not clear for reasons discussed below), Simms attempted to file a pro se petition for habeas relief in the Randolph County Circuit Court. Attached to the petition was an application to proceed in forma pauperis. Around three weeks later (once again, the time is indeterminate because the petition was never file stamped by the clerk), in a letter dated June 30, 2005, the Randolph County Circuit Court clerk returned Simms's petition because he had not submitted a filing fee or the necessary copy of his trust account balance to support his in forma pauperis application.

On July 1, 2005, the same day Simms received his rejected application, he resubmitted the pro se complaint for habeas relief. The court accepted the filing of the petition on this date. But, the trial court later dismissed the complaint on the merits; the dismissal was affirmed by the Illinois Appellate Court, Simms v. Uchtman, No. 5-05-0561 (Ill.App.Ct. June 5, 2006) (unpublished order), and the Illinois Supreme Court denied leave to appeal on November 29, 2006. Simms immediately filed a petition for rehearing but it was rejected by the clerk of the Illinois Supreme Court on December 29, 2006. By this point, Simms had already filed his federal habeas petition. He did so on December 7, 2006.

The federal petition was dismissed by the district court on a finding that it was untimely under the one-year statute of limitations established by AEDPA. 28 U.S.C. § 2244(d)(1). The court determined that Simms's one-year clock started on July 7, 2004, which was the day the Illinois trial court issued an order acknowledging that Simms had withdrawn his post-conviction claims.

The district court did not stop the clock until July 1, 2005, which the court found was the date Simms properly filed his complaint for state habeas relief. This was 358 days after the clock started—so at this point he had seven days left. The district court tolled the clock until November 29, 2006, which is when the Illinois Supreme Court denied Simms's petition for leave to appeal. The district court refused to toll Simms's limitations period for the petition for rehearing that Simms filed immediately after his petition for leave to appeal was denied by the Illinois Supreme Court.

Thus, on November 30, according to the district court, the clock started again and Simms filed his habeas appeal on December 7, 2006—eight days later. The district court therefore found that Simms had missed the deadline by one day. The court then considered whether the statute should be equitably tolled and found that it should not because Simms had not pursued his rights diligently. The court thus dismissed the petition as untimely and did not reach the merits. Simms appeals.

We review the decision to dismiss a habeas corpus petition as untimely de novo. Moore v. Knight, 368 F.3d 936, 938 (7th Cir.2004). Simms claims that the AEDPA limitations period should have been tolled during two periods—when his state habeas petition was sent to the Illinois circuit court clerk on June 7, 2005, and when his petition for rehearing was sent to the Illinois Supreme Court clerk on November 29, 2006. Both of these petitions, he argues, were properly filed; thus, under the terms of AEDPA, his federal petition is timely. See 28 U.S.C. § 2244(d)(2) (tolling the statute of limitations when "a properly filed application for State post-conviction or other collateral review ... is pending"). In the alternative, Simms argues that the district court abused its discretion in not applying the doctrine of equitable tolling to his petition.

I. Was the June 7, 2005 Petition Properly Filed?

Simms contends that he mailed his state habeas petition on June 7, 2005, and it should be deemed filed on that date under Illinois's mailbox rule. See People v. Saunders, 261 Ill.App.3d 700, 199 Ill. Dec. 349, 633 N.E.2d 1340, 1341-42 (1994). Simms argues that despite his failure to attach a copy of his trust fund ledger, the circuit court was required to accept his petition under Illinois law, and therefore it was properly filed. The rejection of the application, he argues, was in error.

Under Illinois law, the court clerk was required to "accept and file any complaint, appearance, or other paper presented by the applicant if accompanied by an application to sue or defend in forma pauperis, and those papers shall be considered filed on the date the application is presented." 735 Ill. Comp. Stat. 5/5-105(e). The "application" to sue is required to "be in writing and supported by the affidavit of the applicant." Id. 5/5-105(c). The court clerk relied on Administrative Order 90-7 of the Circuit Court of Randolph County, which requires inmates seeking to proceed in forma pauperis to submit a copy of their trust fund ledger as part of their affidavit. Because Simms did not include the trust fund ledger, the clerk rejected the application.

The Supreme Court has held that failure to comply with certain state law requirements does indeed render a petition improperly filed. Pace v. DiGuglielmo, 544 U.S. 408, 413, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (holding that untimely state postconviction motions are not considered "properly filed" for purposes of AEDPA). But see Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (holding that petitions for state relief that contain claims that are procedurally barred may still be properly filed). In Pace, the Supreme Court noted specifically that the formal requirements for most petitions are not entrusted to the clerk's discretion, but must be later determined by the judge. Pace, 544 U.S. at 415 n. 5, 125 S.Ct. 1807. The petitioner's argument in that case was that only petitions rejected by the clerk could be declared improperly filed under AEDPA.

Simms's argument is somewhat the inverse of the losing one in Pace. The clerk, he says, was required to file his petition whether or not it met the required form and therefore the petition should be considered filed when submitted to the clerk. To the extent that Simms argues that the period between the time the clerk received the petition and rejected it as improperly filed should be tolled, we can reject that out of hand. In Pace, the Supreme Court foreclosed such a contention. See Pace, 544 U.S. at 414, 125 S.Ct. 1807 (rejecting the notion that the "proper filing" of a petition is determined based on its acceptance by a clerk).

Simms, then, must be contending that the clerk erred by misinterpreting state law, which he says commanded the clerk to accept the petition, and that the petition was therefore properly filed as mailed on June 7. Notably, Simms does not offer evidence that he complied with the local rule on in forma pauperis petitions, and that the clerk overlooked his compliance. Instead, he argues that the clerk was required to accept the petition despite the deficiency and cites to Illinois law for the uncontroversial proposition that a local rule cannot trump state law. Vision Point of Sale, Inc. v. Haas, 226 Ill.2d 334, 314 Ill.Dec. 778, 875 N.E.2d 1065, 1080 (2007) (Circuit courts in Illinois are vested with the power "to adopt local rules...