Elliot Ray v. Marc Clements

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3228

E LLIOT D. R AY,

Petitioner-Appellant,

v.

M ARC C LEMENTS,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 1:07-cv-00190-WCG—William C. Griesbach, Judge.

A RGUED A PRIL 20, 2012—D ECIDED N OVEMBER 19, 2012

Before B AUER, M ANION, and W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. In Elliot Don Ray’s first

federal habeas appeal we found that his constitutional

rights were violated when the state introduced out-of-

court statements made by individuals who did not

testify at his murder trial. But we remanded to give the

state the opportunity to assert a defense that Ray’s state

post-conviction motion was untimely. Ray v. Boatwright

(Ray I), 592 F.3d 793, 798-99 (7th Cir.), as amended (Apr. 1,

2 No. 11-3228

2010). On remand, and after an evidentiary hearing, the

district court placed the burden of proving timeliness on

Ray, finding that he did not timely give his state post-

conviction motion to a prison official for mailing, and

dismissed the petition.

On appeal, Ray argues that the district court erred by

placing the burden of proof on him, by not requiring

the state to put forth an affirmative case of untimeliness,

and by not applying the mailbox rule, which supported

his position that his state post-conviction motion had

been “properly filed” for the purpose of tolling AEDPA’s

limitations period. The state asserts that the mailbox

rule does not apply because the state procedural rule

under which Ray challenged his conviction does not

have a timeliness requirement, and even if the mailbox

rule does apply, the petitioner—not the state—bears the

burden of proof, and that Ray did not carry his burden.

We disagree and adopt the rule set forth by the majority

of our sister circuits that the prisoner mailbox rule

governs whether a state post-conviction document is

“properly filed” under the AEDPA limitations period

unless the state has clearly rejected it. Because Wisconsin

has not clearly rejected it, the mailbox rule applies

in this case.

Having so found, we address the second issue, which

is who has the burden of proof. Where a pro se prisoner’s

filing is not received by the state court, the habeas peti-

tioner must produce some evidence to support his

sworn statement of timeliness, and if this showing is

made, the burden shifts to the state to prove untimeliness.

No. 11-3228 3

Applying these rules to this case, we find that the state

failed to present competent evidence contradicting

Ray’s testimony and documents showing that he timely

gave his state post-conviction motion to a prison official

for mailing. The district court’s finding of untimeliness

was clearly erroneous because it ignored this lack of

evidence and was based on nothing more than con-

jecture and speculative doubt, allowing the state’s

conclusory arguments to carry the day. We therefore

reverse and remand with instructions to grant Ray’s

habeas petition unless the state elects to retry him

within 120 days.

I. BACKGROUND

As we detailed more thoroughly in our previous

opinion, Ray was convicted in Wisconsin on state

counts of reckless homicide, party to a crime, and reck-

lessly endangering the safety of another. Ray I, 592 F.3d

at 794-96. His conviction resulted from a retaliatory

shooting on 29th Street in Milwaukee, Wisconsin that

left an eleven-year-old girl dead and two other people

injured. At Ray’s criminal trial, the state called Detective

Daniel Phillips to describe a signed statement that

Ray gave during his interview with police. The detec-

tive primarily read from Ray’s statement. But he also

recounted his own out-of-court statements informing

Ray that two co-actors had implicated Ray in the shoot-

ings. Detective Phillips testified:

Ray was then confronted with numerous state-

ments made by co-actors that they were present

[at the] shooting on 29th Street and so was Ray.

4 No. 11-3228

Ray then stated “those stupid niggers shouldn’t

be talking and they can’t talk for me.”

When confronted with statements by [Miriam

Myles] that Ray was shooting a nine-millimeter

on 29th Street [and] in a statement by Sylvester

Townsend . . . that Ray had a .45-caliber pistol[,]

Ray then said “tell me which gun killed the

girl and I’ll tell you everything.”

Neither Miriam Myles nor Sylvester Townsend testi-

fied during Ray’s trial. But defense counsel did not object

to this incredibly damaging testimony. After his con-

viction, Ray raised five issues on direct appeal, including

a claim that Detective Phillips’s testimony violated his

right to be confronted with the witnesses against him.

The state appellate court ignored this claim, decided

that Detective Phillips’s testimony was not hearsay

because it was not offered to prove the truth of the

matter asserted, and affirmed Ray’s conviction. The

Supreme Court of Wisconsin denied Ray’s petition for

review on June 12, 2003.

Ray then sought state post-conviction relief under

Wisconsin Statute section 974.06. That statute provides:

“After the time for appeal or postconviction remedy . . . has

expired, a prisoner in custody . . . claiming the right to

be released upon the ground that the sentence was im-

posed in violation of the U.S. constitution . . . may

move the court which imposed the sentence to vacate, set

aside or correct the sentence.” Wis. Stat. § 974.06(1).

Importantly, a section 974.06 motion for relief “is part of

the original criminal action, is not a separate proceeding

No. 11-3228 5

and may be made at any time.” Id. § 974.06(2). Ray’s

request for relief under section 974.06 was eventually

denied on October 16, 2006.

Ray filed two separate pro se petitions for writ of

habeas corpus in the federal district court on February 28,

2007. The district court summarily dismissed Ray’s peti-

tions, exercising its authority under Rule 4 of the

Rules Governing Section 2254 Cases,1 finding that Ray

did not set forth a cognizable constitutional or federal

law claim. But the court granted Ray’s request for a

certificate of appealability to resolve Ray’s confrontation

clause claim. On appeal, we held that “the evidence

presented by the prosecution delivered to the jury state-

ments by named co-actors, not available for cross-exam-

ination, accusing Ray of the very crimes with which

he stood charged” and “the evidence was a clear viola-

tion of Ray’s constitutional right of confrontation.” Ray I,

592 F.3d at 795-96. The state petitioned for rehearing

en banc, raising a timeliness defense. We denied the

petition, but on April 1, 2010 we issued an amended

opinion remanding this case to the district court “so that

the government may have an opportunity to develop the

record on this issue” because the record contained “no

1

Rule 4 “enables the district court to dismiss a petition sum-

marily, without reviewing the record at all, if it determines

that the petition and any attached exhibits either fail to state a

claim or are factually frivolous.” Small v. Endicott, 998 F.2d

411, 414 (7th Cir. 1993). Under this procedure, the govern-

ment might not learn about the petition until a certificate

of appealability is granted.

6 No. 11-3228

evidence . . . to support the government’s assertion” of

untimeliness. Id. at 799.

On remand, the district court held a status conference

to decide how to proceed. The state did not request

additional discovery or alert the district court of any

difficulties it had experienced in obtaining relevant

evidence. The state filed a motion to dismiss Ray’s

petition as untimely. Ray countered with a motion for

summary judgment. After reviewing the parties’ briefs,

the district court denied both motions, scheduled an

evidentiary hearing, and ordered Ray to testify in sup-

port of his claim that “the mailbox rule exception to the

statute of limitations defense applies.” The court also

ruled that Ray bore the burden of proving that his

petition was timely.

The record before the district court, as it existed prior

to the evidentiary hearing, included Ray’s sworn

affidavit detailing his claim that on April 27, 2004 he

gave his section 974.06 motion to Ms. Tamara Smith, a

Diamondback Correctional Facility social worker. Ray

averred that he gave Ms. Smith the motion, with prepaid

postage, for mailing to the Wisconsin Circuit Court

of Milwaukee County. He maintained that Ms. Smith,

in turn, gave him two receipts: a “Certificate of Service

by Mail” receipt, which he signed, and a “CCA Privileged

Correspondence Receipt,” 2 which she signed. Ray’s

affidavit also described his efforts to obtain informa-

tion from Ms. Smith regarding the processing of his mail.

2

CCA” refers to Corrections Corporation of America.

No. 11-3228 7

On June 1, 2004 and September 9, 2004, Ray wrote letters

to Ms. Smith asking her to verify that she sent his

section 974.06 motion to the court. He then wrote her a

third letter on June 15, 2005, requesting the same infor-

mation. Finally, according to Ray, after not hearing

back from Ms. Smith, he sent a notarized letter to the

Milwaukee clerk of court on October 4, 2006 to determine

the status of his motion. The court informed Ray that it

had no record of his post-conviction motion ever being

filed, so he immediately submitted a supplemental pro se

motion, which the court denied on October 16, 2006.

The pre-evidentiary-hearing record contained no evi-

dence contradicting Ray’s sworn testimony.

On July 28, 2011, the district court held an evidentiary

hearing. Before beginning, the court clarified that even

though the general rule is that the party asserting an

affirmative defense, like untimeliness, bears the burden

of proving the defense, Ray had invoked an exception

to the defense so the burden rested with him to prove

that the exception applied. The court noted that Ray

“has made the required presentation of sufficient

evidence . . . to conclude that he has raised [the mailbox

rule] issue. . . . [T]he state disputed it, not based on

specific facts but inferentially, they argued that the evi-

dence he has supporting his position is not credible.

I have concluded that we need a factual hearing on

that.” The hearing, according to the court, was con-

ducted to “assess [Ray’s] credibility.”

The evidentiary hearing began with testimony from

Corrections Officer John T. Nedbal. He worked in the

library of New Lisbon prison, where Ray was incar-

8 No. 11-3228

cerated when he allegedly lost the signed CCA receipt

after giving it to the prison library staff for photocopy-

ing. Officer Nedbal quoted the library policy as requiring

inmates to “identify[] material to be copied,” which he

understood to mean that inmates were expected to

describe precisely what they wanted copied. Officer

Nedbal testified that he would “look [] over” the descrip-

tions and instructions provided by the prisoner and then

“send it to . . . get their copies,” but if he noticed anything

“suspicious” about the materials submitted he would talk

to the prisoner and contact a supervisor if necessary.

Officer Nedbal explained that he was only permitted to

“glance” at a prisoner’s “legal stuff,” so he did not read

prisoners’ legal materials. He stated that he had “glanced

at” the disbursement form Ray provided with his copy

request. That form contained a “reason for request sec-

tion,” in which Ray wrote, “Two copies of a Corrections

Corporation of America Privileged Correspondence

Receipt form.”

On cross-examination, Officer Nedbal explained that

Ray’s copies were, to his knowledge, the first requested

copies that had ever been lost during the three years

that he worked in the library. He agreed that the only

basis for believing that the copies had been lost was

Ray’s claim that he did not receive them. Other than

the “photocopy request,” which served as a de facto

receipt for prisoners and the prison, Officer Nedbal had

no other means of verifying that Ray’s original document

and requested copies had never been delivered.

Ray then called Lynn Martin to testify. Ms. Martin

served as the librarian at New Lisbon since the fall of

No. 11-3228 9

2007. She explained that she would have screened the

documents that Ray submitted for photocopying and

flagged anything that looked suspicious for a supervisor’s

review. According to Ms. Martin, if the materials “went

over to be copied” then she did not notice anything

suspicious about them. Ms. Martin admitted that she

was not aware of any other prisoner’s copies being lost,

but she said that the only way the library would know is

if the “inmate came and let us know.” In her opinion,

the prison would not have taken steps to look for the

copies—including circulating an internal memo, and

interviewing individuals who were responsible for

the copying—if Ray’s copies had never been made.

Ms. Martin stated that she checked the “lost in mail”

option on an information request form she received

because she believed that the photocopies were made

and there was no evidence that Ray actually received them.

During her cross-examination, Ms. Martin explained

that she would identify a document as suspicious if it

“had someone else’s name on it,” but she also looked at

“various other” indicators of suspiciousness. She said

she believed Ray’s documents were lost because his

request was not flagged as suspicious and he claims to

have never received the documents. The prison did not

have an internal tracking procedure to verify receipt of

requested copies, nor did it require prisoners to sign

any type of receipt upon delivery. Looking at library

records, Ms. Martin confirmed that an inmate with the

initials “A.S.” completed Ray’s photocopy request on

April 19, 2010. Finally, Ms. Martin testified that Ray

had previously worked in the library between February

and September 2008.

10 No. 11-3228

On redirect, Ms. Martin corroborated Officer Nedbal’s

statement that prisoners were required to detail what

they wanted copied, not just the number of copies they

were requesting or their preference for how the copies

would appear (e.g., double-sided, scaled, etc).

The state solicited testimony from Michelle Highley, a

financial specialist at Green Bay Correctional Institu-

tion since September 2009. Her responsibilities included

maintaining records on inmates’ trust accounts. Inmate

trust accounts show purchases made during incarcera-

tion. Ms. Highley testified that Ray’s account did not

show any purchases between April 1 and June 14, 2004,

so if he sent mail during that period, as he claims

he directed Ms. Smith to do, he did not purchase the

envelopes or postage from the prison’s “commissary.”

Ms. Highley conceded, on cross-examination, however

that Ray might have purchased those items before April 1,

borrowed stamps and envelopes from other inmates,

or received them by mail from family members. On

redirect, Ms. Highley testified that Ray had been trans-

ferred to Green Bay Correctional Institution on April 30,

2004 and he had “zero” dollars “cash on arrival.”

Ms. Highley did not dispute that he might have

previously purchased stamps or obtained them by al-

ternative means.

Ray served as the final witness at the evidentiary hear-

ing. He began by reaffirming the veracity of his previously

submitted affidavit. He explained that in April 2004

he was incarcerated at the Diamondback Correction

Facility in Oklahoma. Diamondback did not have a sepa-

No. 11-3228 11

rate system for legal mail; inmates could give legal mail

to the prison officials or put it directly in the regular

mail. Ray explained that on April 27, 2004 he did not

have access to the regular mail system because his

prison unit was on “administrative confinement,” so

prisoners were prohibited from leaving the unit. During

lunchtime, Ms. Tamara Smith, one of the prison’s social

workers, “came in the unit.” Seeing Ms. Smith, Ray

“stopped eating went upstairs to [his] cell, grabbed

[his] . . . manila envelope with [his section] 974.06

[motion] in it and brought it downstairs” to give it to

her. After telling Ms. Smith that he needed her to send

“legal mail” on his behalf, Ray and Ms. Smith went into

“the social worker office” where she proceeded to

look through the cabinets before finding and giving

Ray two forms to complete. The first form, according

to Ray, was a certificate of service by mail. The second

was a CCA privileged correspondences receipt, which

Ms. Smith allegedly signed.

Ray testified that he had been relying on fellow

inmates for help with his legal affairs and that he did not

produce the CCA receipt initially because one of those

inmates had it when the inmate was transferred to

another prison. Ray testified that, relying on the advice

of other inmates, he only followed up with Ms. Smith—and

not the state court directly—because he was concerned

that the court might get irritated and summarily dismiss

his petition. Ray allegedly sent Ms. Smith three letters

to obtain information about his post-conviction motion,

the first on June 1, 2004, the second on September 9, 2004,

and the last on June 15, 2005. He retained copies of each.

12 No. 11-3228

But after not hearing back from Ms. Smith for nearly

two years, Ray decided to contact the state court directly.

He claims to have waited so long because he thought

there might have been some sort of delay in his mail

reaching Ms. Smith: “staff members in other institutions . . .

[t]hey get a letter . . . from an inmate, they’ll put it to

the side until they keep piling up. . . .” So in October 2006,

Ray sent a notarized letter to the Circuit Court of Mil-

waukee County requesting information about the status

of his section 974.06 motion. After being informed that

no such motion was received or pending, Ray filed a

supplemental section 974.06 motion, which the court

denied on October 14, 2006. Ray subsequently sent

Ms. Smith a letter on November 1, 2006 asking about

his original motion and explaining that the court had

never received it. He also wrote the warden to

complain about Ms. Smith’s mishandling of his mail.

According to Ray, after we issued our opinion in

April 2010, he began reaching out to try to find the

inmate who had his CCA receipt. After finally tracking

down the receipt, Ray sought to make copies for

himself and his recently retained attorney. However, the

prison library failed to deliver his requested copies and

did not return his original document. So Ray sought

advice from Ms. Martin. She apparently knew about

Ray’s case because she “call[ed] him down to the library to

show” him on “LexisNexis the decision” we issued in

April 2010. Ray explained to Ms. Martin that he thought

it was extremely important to find the document.

The state confronted Ray with Diamondback’s “Com-

munication Mail and Visiting” policy, which had been

No. 11-3228 13

in effect during April 2004. Section 6(a) of the policy

states: “All inmate mail will be processed through

the institutional mailroom. No person, either staff or

visitors, is permitted to bring in or take out any mail or

article for an inmate.” Ray maintained that he could

not take mail to the mailroom because his unit was

on administrative confinement, and despite the written

policy, inmates were allowed to give mail to the prison

officials. Although the policy said nothing about receipts

for outgoing privileged mail—but it did describe such

receipts for “incoming” correspondences—Ray swore

that Ms. Smith gave him a receipt for his outgoing mail.

Pointing to the prison mail logs to buttress his claim,

Ray testified that all outgoing legal mail was supposed

to be logged, prisoners do not have access to the mail

logs, and the prison refused to produce (or submit into

evidence) logs from the relevant dates, including the

date he gave his motion to Ms. Smith.

The district court offered both sides an opportunity to

make closing arguments. Ray’s counsel summarized

Ray’s evidence and argued that “[f]or the State to prevail

in this situation, you have to believe that in October 2006,

Mr. Ray had figured out . . . AEDPA and the tolling

provisions . . . then began to manufacture evidence in

2006 . . . to deal with the federal petition that had not

even been filed assuming that a State petition, which

he had just found out had not been received, was going

to be denied. It is an extraordinary amount of prescience

on the behalf of Mr. Ray who, until recently, did not

even have his [general equivalency diploma].”

14 No. 11-3228

The state closed by raising a series of questions about

Ray’s version of the events. It began by refuting a sug-

gestion by Ray’s counsel that it had been derelict in

obtaining evidence from Diamondback. Counsel ex-

plained, “I have made numerous phone calls to CCA . . .

[and have been] met with voicemails and unreturned

calls for months now. I have done everything that I can

think of to do to get more information from CCA on

what their policies were.”

The state then argued that Ray is “a very bright indi-

vidual” and “it strains credibility” to believe that he

could not understand AEDPA’s statute of limitations.

Counsel continued, “So I do not think that it is beyond

the realm of possibility that . . . Mr. Ray learned of the

one year time limit, learned that he had passed it and

started with his collateral stuff and then at some point

made these letters . . . .” The state’s attorney further

argued that “it seems incredible” that Ray would give

Ms. Smith his section 974.06 motion right before he

was going to be transferred to Wisconsin, and that “a

Privileged Correspondence form would be given to an

inmate in outgoing mail” and “a Certificate of Service . . .

would be, you know, full of spelling and grammatical

errors.” Counsel repeatedly stated that Ray’s evidence

“does not make a lot of sense,” especially “given

Diamondback’s policy, where it clearly states that mail

is not to be given to staff members.” Before concluding,

the state’s attorney reiterated that Ray has “shown

through many filings that he is clearly a bright and

capable individual” and “I do not think that these sup-

posedly arcane rules of habeas corpus are lost on

No. 11-3228 15

him” because AEDPA “is not that complex” and “many

prisoners, and certainly Mr. Ray” are capable of under-

standing the statute. Finally, counsel in closing stated:

We know only from Mr. Ray that the copies

were missing or supposedly missing. We do not

know what was copied. No one knows what

was copied. The only statement about what was

copied comes from Mr. Ray.

The fact that he transferred between five prisons

in however many years and suddenly came

upon this form that was some sort of smoking

gun that he did not give to his attorney but

instead gave to prison officials, I just find all of

that incredible.

Hr’g Tr., 113-20, July 28, 2011.

On August 23, 2011, the district court issued an

order dismissing Ray’s habeas petition as untimely. The

court found that “Ray’s version of the events concerning

the filing of his state motion for post-conviction relief

is not credible.” The court’s decision closely paralleled

the state’s closing argument. Its findings were based on

the following: (1) Ray allegedly gave Ms. Smith his

motion “when he knew he was on his way back to Wis-

consin in a matter of days”; (2) Ray waited until October 4,

2006, to ask the clerk of the court” for information

about his motion; (3) Ray failed to take any action other

than sending Ms. Smith “nearly identical” letters; (4) the

“somewhat curious” nature of Ray “retain[ing] a copy of

a letter he sent only a month after he handed Smith

16 No. 11-3228

his motion for postconviction relief, but [he] did not

retain a copy of the motion itself”; (5) Ray’s certificate

of service “bears no signatures, other than Ray’s, and

appears on plain white paper with no heading or other

indication that it is an official prison form . . . [and]

[e]ven when compared with the official property request

form from Ray’s file, which also lacks an institutional

heading and contains a grammatical error . . . the certificate

looks more like the work product of a prisoner than a

prison administration”; and (6) Ray’s “knowledge of not

only the one-year limitations period for federal habeas

petitions, but also the mailbox rule and the rules

governing tolling of the one-year period” which was

demonstrated by his “two or three boxes of legal materi-

als.” Finally, the district court pinpointed Ray’s claim

that the signed receipt had been lost by the prison:

[I]t is clear that the document Ray handed CO

Nedbal for photocopying could have been a docu-

ment he created in an attempt to manufacture

additional evidence to corroborate his claim that

he handed his § 974.06 motion to Ms. Smith on

April 27, 2004. The detail in which Ray described

the document . . . suggests a purpose beyond a

simple request for a thirty-cent disbursement for

photocopying. . . . [Nedbal’s] signature . . . and

acceptance of the document for copying, under

the circumstances, cannot be reasonably viewed

as proof of what the document was. Having

worked in the library himself, Ray would have

known as much.

No. 11-3228 17

The district court concluded that Ray was not credible,

that he did not carry his burden of proving statutory

tolling, and that his petition was time barred. Ray appeals.

II. ANALYSIS

This appeal raises two questions that we have yet

to resolve in our circuit: first, whether the mailbox rule

applies to toll AEDPA’s one-year limitations period

when a prisoner delivers a Wisconsin section 974.06 post-

conviction motion to a prison official for mailing to

the state court; second, if the mailbox rule applies,

which party bears the burden of proof on the matter of

timeliness when the state court never receives the pris-

oner’s motion. Our review of these unsettled legal issues

is de novo. Simms v. Acevedo, 595 F.3d 774, 777 (7th Cir.

2010). We will then decide if the district court clearly

erred by finding that Ray did not give his section 974.06

motion to Ms. Smith on April 27, 2004 and that Ray’s

federal habeas petition was untimely. See Bintz v. Bertrand,

403 F.3d 859, 865 (7th Cir. 2005).

A. The Mailbox Rule Applies

In Houston v. Lack, the Supreme Court established the

“bright-line rule” that a pro se prisoner files a federal

notice of appeal, a prerequisite to federal appellate juris-

diction, at the moment the prisoner delivers it to a

prison official for mailing to the court. 487 U.S. 266, 275-76

(1988).This rule is colloquially known as the “Houston”

or “prison” mailbox rule. Jones v. Bertrand, 171 F.3d 499,

18 No. 11-3228

500 (7th Cir. 1999). The reasons for its existence are mani-

fold.

For starters, pro se prisoners occupy a unique position

in litigation. Unlike others, pro se prisoners cannot ac-

tively monitor their pending case, they cannot personally

travel to the courthouse to ensure that their filings

have been timely received, and they cannot freely track

their mailings via consistent communication with the

court, or the enlisted mail carrier, to determine if

anything has gone awry. See Houston, 487 U.S. at 270-71.

Instead, a pro se prisoner must almost blindly rely on

“vagaries of the mail” and the scruples of prison offi-

cials. Id. at 271. “And if there is a delay the prisoner

suspects is attributable to the prison authorities, he is

unlikely to have any means of proving it, for his con-

finement prevents him from monitoring the process

sufficiently to distinguish delay on the part of prison

authorities from slow mail service or the court clerk’s

failure to stamp the notice on the date received.” Id.

In short, once a pro se prisoner’s filing leaves his

hands he loses control over its processing. Id.

Additionally, prisons are (or should be) equipped with

well-developed administrative procedures for “recording

the date and time at which they receive papers for mail-

ing.” Id. at 275. In light of the inherent prison-prisoner

power and information imbalance, prisons should be

able to “readily dispute a prisoner’s assertions that he

delivered the paper on a different date” by referencing

“prison mail logs,” for example, or other reliable indica-

tors of mailing established and controlled by the prison.

Id. “The prison will be the only party with access to at

No. 11-3228 19

least some of the evidence needed to resolve such ques-

tions—one of the vices the general rule is meant to

avoid—and evidence on any of these issues will be

hard to come by for the prisoner confined to his cell,

who can usually only guess whether the prison

authorities, the Postal Service, or the court clerk is to

blame for any delay.” Id. at 276.

Finally, the mailbox rule ensures that justice will be

properly served. See Jones, 171 F.3d at 502. Although

not always, our judicial system does recognize the com-

plexity of our prescriptive procedural rules and we often-

times relax those rigid requirements when a litigant

appears in federal court unrepresented. E.g., Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam) (“A document

filed pro se is to be liberally construed and a pro se com-

plaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by

lawyers.” (citation and internal quotation marks omit-

ted)); Castro v. United States, 540 U.S. 375, 381-82

(2003) (explaining that federal courts may recharacterize

a pro se litigant’s filing to avoid “unnecessary dis-

missal” and the “inappropriately stringent application” of

labeling requirements, or to better correspond to the

motion’s substance and legal basis). We have also taken

significant steps to ensure that prisoners’ filings are not

subject to the unrestrained whims of prison officials.

See Fed. R. Civ. P. 4(c); see also United States v. Craig, 368

F.3d 738, 740 (7th Cir. 2004) (“Today the mailbox rule

depends on Rule 4(c) . . . , [which] applies to ‘an inmate

confined in an institution’ . . . . A court ought not pencil

‘unrepresented’ or any extra word into the text of

Rule 4(c).”). The mailbox rule further counterbalances

20 No. 11-3228

the heavy weight that our procedural rules have

stacked against pro se prison litigants. In a just judicial

system, a pro se prisoner’s chance of success should not

be inextricably tied to his or her understanding and

familiarity with the nuance of procedure; it should

depend primarily on the substantive merits of the claim

being asserted. The mailbox rule facilitates merits ad-

judication by, under certain circumstances, removing

one—but not all—of the complex procedural hurdles

standing in the pro se prisoner’s way. Because “[n]o

matter how far in advance the pro se prisoner delivers

his notice to the prison authorities, he can never be

sure that it will ultimately get stamped ‘filed’ on time,”

the mailbox rule renders this matter inconsequential in

the interest of justice. See Houston, 487 U.S. at 271.

With the rationale underlying the mailbox rule

squarely in our sights, we must decide as a matter of

first impression whether the rule applies to a Wisconsin

pro se prisoner’s section 974.06 post-conviction motion.

AEDPA requires a federal habeas petition to be filed

within one year from “the date on which the [state]

judgment became final by the conclusion of direct

review or the expiration of the time for seeking such

review.” 28 U.S.C. § 2244(d)(1)(A). “The one-year statute

of limitations can be tolled, however, if the petitioner

applies for ‘State post-conviction or other collateral

review’ of the judgment.” Price v. Pierce, 617 F.3d 947,

950 (7th Cir. 2010) (quoting 28 U.S.C. §2244(d)(2)). For

statutory tolling to apply, the state post-conviction

motion must be “properly filed.” 28 U.S.C. § 2244(d)(2).

No. 11-3228 21

That determination is governed by state procedural

law. Artuz v. Bennett, 531 U.S. 4, 8 (2000).

Ray filed his federal habeas petition on February 28,

2007. His state conviction became final on or about Sep-

tember 10, 2003, after the time expired for filing a petition

for writ of certiorari in the Supreme Court for direct

review of the state court’s judgment. See 28 U.S.C.

§ 2244(d)(1)(A); see also Anderson v. Litscher, 281 F.3d 672,

675 (7th Cir. 2002) (“[W]e believe that the ninety day

period during which a petition for certiorari may be

filed by a state prisoner falls within the meaning of

section 2244(d)(1)(A) for purposes of calculating when

the statute of limitations begins to run.”). Given the three-

year time difference between the state court’s final judg-

ment and Ray’s federal filing, Ray’s federal habeas

petition would be time barred absent tolling.3

The state, citing Wisconsin Statute sections 801.16(1)

3

Ray has not invoked the doctrine of equitable tolling, which

can toll AEDPA’s one-year statute of limitations period, but

demands that the petitioner demonstrate “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005). The “threshold necessary to trigger equitable

tolling is very high” and the doctrine applies only when

“extraordinary circumstances” outside of the petitioner’s

control prevent timely filing. United States v. Marcello, 212

F.3d 1005, 1010 (7th Cir. 2000). “Equitable tolling . . . asks

whether federal courts may excuse a petitioner’s failure to

comply with federal timing rules, an inquiry that does not

implicate a state court’s interpretation of state law.” Holland

v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2563 (2010).

22 No. 11-3228

and 809.80(3), argues that Ray cannot benefit from the

mailbox rule because Wisconsin requires “actual receipt”

by the court clerk for a document to be “properly filed,”

and Ray’s motion was not actually received before

AEDPA’s limitations period expired. The state also

argues that the mailbox rule should not apply where, as

here, a prisoner’s post-conviction motion may be filed

at any time. The state views section 974.06’s failure

to include a filing deadline as proof that Wisconsin

refuses to apply the mailbox rule in these circumstances.

We do not find the state’s arguments persuasive.

A majority of our sister circuits have held that unless

a state clearly rejects it, the Houston mailbox rule

governs whether a state post-conviction document is

“properly filed” under AEDPA. Compare Campbell v.

Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (California), and

Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009) (Louisiana),

with Howland v. Quarterman, 507 F.3d 840, 844-45 (5th

Cir. 2007) (Texas), and Vroman v. Brigano, 346 F.3d 598, 603

(6th Cir. 2003) (Ohio), and Adams v. LeMaster, 223 F.3d

1177, 1180 (10th Cir. 2000) (New Mexico). But see Fernandez

v. Artuz, 402 F.3d 111, 113-15 (2d Cir. 2005) (“New York’s

rejection of the mailbox rule does not preclude its ap-

plication by a federal court in tolling a federal statute of

limitations.” (emphasis original)); Anthony v. Cambra, 236

F.3d 568, 575 (9th Cir. 2000) (“the mailbox rule

applies with equal force to the filing of state as well

as federal petitions”). Two recent but divergent Fifth

Circuit cases illustrate this point. In Stoot, the Fifth

Circuit held that even though the Louisiana Supreme

Court had not considered the precise issue of whether

the mailbox rule applies when a pro se prisoner’s

No. 11-3228 23

pleading is mailed but not received, the state’s top

court “has adopted the holding and reasoning of Hous-

ton,” so the rule extended to that case. 570 F.3d at 671.

Stoot is distinguishable from the Fifth Circuit’s earlier

decision in Howland because Texas, the relevant state

there, unlike Louisiana, had clearly rejected the

mailbox rule. 507 F.3d at 844-45. The thread weaving

these disparate outcomes together is the manner in

which the underlying state’s procedural law treats pro se

prisoners’ post-conviction filings. See Artuz, 531 U.S. at 8.

We agree with the majority of our sister circuits and

hold that the mailbox rule applies to a state pro se pris-

oner’s post-conviction filings unless the state where the

prisoner was convicted has clearly rejected the rule.

Wisconsin procedural law is at issue here, and we

think it is clear that Wisconsin has fully embraced the

Houston mailbox rule. First, Wisconsin does not require

“actual receipt” for a post-conviction motion to be

deemed properly filed. The state’s principal citation,

Wis. Stat. § 801.16(1), simply states that court filings

“shall be made by filing them with the clerk of circuit

court.” And Wisconsin Statute section 809.80(3), which

says that the court clerk must “receive” a filing before

the applicable deadline for it to be “timely,” does not

apply to pro se prisoners. See Wis. Stat § 809.80(3)(e).

Instead, a pro se prisoner’s petition is filed “on the

date that the confined person delivers a correctly ad-

dressed petition to the proper institution authorities

for mailing,” provided that the prisoner files a “certifica-

tion or affidavit setting forth the date on which the

24 No. 11-3228

petition was delivered to the proper institution

authorities for mailing.” Id.

Second, the Supreme Court of Wisconsin made its

endorsement of the Houston mailbox rule abundantly

clear in State v. Nichols, 635 N.W.2d 292, 295-96 (Wis.

2001). In that case, the court, persuaded by Houston’s

rationale, applied the mailbox rule to a pro se prisoner’s

state certiorari action. Id. at 298 (“We are persuaded by

the rationale in Houston”). It doing so, the court

explained that it was not “mandat[ing] any particular

procedure that [pro se prisoner] litigants must follow,”

but “a certificate of service or affidavit of mailing . . .

would create a rebuttable presumption that the prisoner

had delivered his or her petition to the proper prison

authorities on the particular day certified.” Id. at 299.

The state dismisses Nichols because it addressed

tolling the time for petitioning the state supreme court

for review after an appellate court’s affirmance. The

state correctly notes that section 974.06 motions are not

subject to any time requirements, but this does not mat-

ter. All of the concerns animating the Supreme

Court’s decision in Houston and the Supreme Court of

Wisconsin’s decision in Nichols apply with equal force to

pro se prisoner filings not subject to a time requirement.

A pro se prisoner’s unique litigation disadvantages do

not disappear when filing deadlines are eliminated.

Ray’s situation provides a perfect case in point—although

he fully complied with section 974.06, the state has at-

tacked his federal habeas petition as untimely. Notwith-

standing Wisconsin’s generous acceptance of section 974.06

No. 11-3228 25

post-conviction motions at any time, there are practical

(and in this case drastic) consequences for not filing

the motion within one year of the final judgment.

Suppose it was undisputed that Ray gave his post-

conviction motion to a prison official within AEDPA’s one-

year time frame but the state court received the docu-

ment one year and one day later due to some honest

oversight in the prison mail system. Accepting the

state’s position would leave Ray without a federal

forum to collaterally attack his conviction, unless he

could prove his entitlement to equitable tolling. Statu-

tory tolling would offer no reprieve because without the

benefit of the mailbox rule, Ray’s state motion was not

“properly filed” within AEDPA’s one-year period.

The state is comfortable with this result because sec-

tion 974.06 itself imposes no filing deadline. But we

are not. In our hypothetical, Ray’s inability to control and

monitor his mailings would be the reason for his habeas

misfortune. The Supreme Court established the Houston

mailbox rule to obviate such objectionable outcomes.

The gravamen of the state’s argument is that the mail-

box rule does not apply where a prisoner’s filing is not

subject to a timeliness requirement. The state reasons

as follows: the mailbox rule applies if there is a filing

deadline; Ray could file his state post-conviction at any

time, so the mailbox rule does not apply to Ray’s filing.

We reject this reasoning. Just because a pro se prisoner

can benefit from the mailbox rule to statutorily toll

AEDPA’s one-year period if a state filing is subject to a

deadline, it does not follow that the rule cannot apply

26 No. 11-3228

where the state imposes no such deadlines. A time limit

is only one “condition to filing” that a pro se prisoner

must abide to statutorily toll AEDPA with a “properly

filed” state post-conviction pleading. See Allen v. Siebert,

552 U.S. 3, 6 (2007) (“Whether a time limit is juris-

dictional, an affirmative defense, or something in

between, it is a ‘condition to filing’—it places a limit on

how long a prisoner can wait before filing a postconvic-

tion petition.” (citation omitted)). And the question of

whether a petition is “properly filed” remains a matter

of interpreting a federal statute. See Holland, 130 S. Ct.

at 2563. We defer to a state court’s interpretation of its

own procedural rules out of respect for the principles

of federalism. But the absence of state-imposed condi-

tions to filing under state law does not prevent us

from recognizing a document as “properly filed” under

AEDPA as a matter of federal law. See, e.g., Sulik v. Taney

Cnty, 316 F.3d 813, 815 (8th Cir. 2003) (holding that

Houston “applies regardless of the length of the limitation

period”); Lewis v. Richmond City Police Dep’t, 947 F.2d

733, 736 (4th Cir. 1991) (holding that the Houston

mailbox rule “provides that a statute of limitations has

the same practical effect on every pro se prisoner litigant

it governs” and “[t]he length of the time restriction in-

volved is irrelevant”).

Many courts, including the Supreme Court, have con-

sistently conveyed concerns about the pro se prisoner’s

unique litigation disadvantage, including his inability

to control and monitor documents that he sends to the

court. E.g., Houston, 487 U.S. at 270-71; Jones, 171 F.3d

at 500-01. As one means of addressing these concerns,

No. 11-3228 27

we will apply the mailbox rule to a prisoner’s state post-

conviction filings unless the state has clearly rejected

the rule. Because the Wisconsin Supreme Court held in

Nichols that the mailbox rule operates to “file” a pro se

prisoner’s court document when the prisoner delivers

it to a prison official for mailing, that pronouncement

governs. Nichols, 635 N.W.2d at 298. Ray, therefore, can

rely on the Houston mailbox rule to statutorily toll

AEDPA’s limitations period, even though Wisconsin

permits section 974.06 post-conviction motions to be

filed at any time.

B. The State Bears the Burden of Proving Untimeliness

Having decided that the Houston mailbox rule applies,

we turn to the burden of proof. It is well-settled that

AEDPA’s statute of limitations is a nonjurisdictional

affirmative defense. Day v. McDonough, 547 U.S. 198,

205 (2006). Generally, the party raising an affirmative

defense bears the burden of proof. See Gildon v. Bowen, 384

F.3d 883, 886 (7th Cir. 2004). The same is true in the

habeas context. See id. (“Since the period of limitations is

an affirmative defense, the state has the burden of

showing that the petition is untimely.”). Ray argues that

this axiom should end our inquiry, and that the state

should bear the burden of proving that his federal

habeas petition is untimely. But resolution of this issue

is not so straightforward.

The state identifies two potential problems with

applying the general rule to this case. First, tolling offers

28 No. 11-3228

one way around the statute of limitations and it makes

intuitive sense to require the party requesting tolling

to prove its appropriateness. The state finds support

for this argument in how courts allocate the burden

of proof in cases involving equitable tolling. E.g., Pace,

544 U.S. at 418. Second, in cases like this one, where

a petitioner’s purported filing is never received, the

state would be required to prove a negative: that the

petitioner did not give a prison official his petition

before AEDPA’s one-year limitations period ran.

We believe both concerns are overstated.

It is certainly true that the petitioner bears the burden

of proving “equitable tolling.” Id. But equitable tolling,

as its name suggests, is an appeal to equity. See Holland,

130 S. Ct. at 2563. It is not a matter of statutory inter-

pretation. As is almost always the case, the party seeking

equity must prove its entitlement to equity. See, e.g.,

Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204,

233 (2002) (Ginsburg, J., dissenting) (“As courts

in the common-law realm have reaffirmed: ‘Principles of

equity, we were all taught, were introduced by Lord

Chancellors and their deputies . . . in order to provide

relief from the inflexibility of common law rules.’ ” (citation

omitted)); Keystone Driller Co. v. Gen. Excavator Co., 290

U.S. 240, 244-45 (1933) (“The governing principle is ‘that

whenever a party who, as actor, seeks to set the judicial

machinery in motion and obtain some remedy, has

violated conscience, or good faith, or other equitable

principle, in his prior conduct, then the doors of the

court will be shut against him in limine . . . .’ ” (citation

omitted)); see also Robertson v. Simpson, 624 F.3d 781, 784

No. 11-3228 29

(6th Cir. 2010) (“The party seeking equitable tolling

bears the burden of proving he is entitled to it.”).

Statutory tolling, however, is quite different. Equity is

not involved, and blameworthiness is not relevant. See

Holland, 130 S. Ct. at 2561-62 (describing § 2244(d)(2)

tolling as of “a different kind” than equitable tolling).

Regardless of how diligent or dilatory a federal habeas

petitioner might be, AEDPA’s “one-year clock is

stopped . . . during the time the petitioner’s ‘properly filed’

application for state postconviction relief ‘is pending.’ ”

Day, 547 U.S. at 201 (quoting 28 U.S.C. § 2244(d)(2)).

Equitable tolling can be invoked only after a finding or

concession that the one-year period has expired. See

Cross v. Sisto, 676 F.3d 1172, 1175-76 & n.2 (9th Cir.

2012). So placing the burden on the party requesting

equitable tolling is functionally equivalent to first

finding that the federal petition is untimely and then

requiring the petitioner to prove that “equity” should

except or excuse such untimeliness. In this way, the

burden is rightfully on the petitioner, as the party

seeking application of an equitable exception to the

timeliness rule. Cf. Knox v. Cook County Sheriff’s Police

Dep’t, 866 F.2d 905, 907 (7th Cir. 1988) (“While the statute

of limitations is an affirmative defense, the burden of

establishing an exception thereto is on plaintiff.”).

Our section 2244(d)(2) statutory tolling inquiry is one

step removed from equitable tolling. It tells us which

days count toward the one-year limitations period. As

the statute itself puts it, the “time” that a properly filed

petition “is pending shall not be counted” toward

AEDPA’s limitations period. 28 U.S.C. § 2244(d)(2). We

30 No. 11-3228

think the state should have to prove that each of the

365 days it relies on for its affirmative defense

actually qualifies as a “countable” day under the stat-

ute. See Fleming v. Evans, 481 F.3d 1249, 1257 (10th Cir.

2007) (“The state bears the burden of proving that the

AEDPA limitations period has expired.”); Griffin v.

Rogers, 308 F.3d 647, 653 (6th Cir. 2002) (“[T]he party

asserting statute of limitations as an affirmative

defense has the burden of demonstrating that the statute

has run.”). We are particularly persuaded by the fact

that a petitioner “cannot bring a federal habeas claim

without first exhausting state remedies—a process that

frequently takes longer than one year,” so Congress, in

enacting section 2244(d)(2)’s statutory tolling provision,

explained “how the limitations statute accounts for the

time during which such state proceedings are pending.”

Holland, 130 S. Ct. at 2562. And “[t]o provide accurate

information about prior state court proceedings, most

habeas petitioners are forced to rely on state court

records . . . , [and it] is not the petitioner, but rather the

state that is in the best position to provide this informa-

tion.” Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084, 1088

(10th Cir. 2008); see also R. Governing § 2254 Cases 5(d)

(requiring a state to file, along with its answer, copies

of “the opinions and dispositive orders of the appellate

court relating to the conviction or the sentence”).

Traditionally, courts have placed the burden of proof

on the party in the best position to prove its case. See, e.g.,

Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461,

494 n.17 (2004) (“Among other considerations, alloca-

tions of burdens of production and persuasion may

No. 11-3228 31

depend on which party—plaintiff or defendant, petitioner

or respondent—has made the ‘affirmative allegation’ or

‘presumably has peculiar means of knowledge.’ ” (citation

omitted)). This principle of practicality has roots in com-

mon law. See United States v. Cont’l Ins. Co., 776 F.2d

962, 964 (11th Cir. 1985) (“[we adhere] to the common

law guide that the party in the best position to present

the requisite evidence should bear the burden of

proof”). And it just “makes sense to place at least some

of the burden on the parties with the best access to the

information.” Saleem v. Keisler, 520 F. Supp. 2d 1048, 1059

(W.D. Wis. 2007). So “all else being equal, the burden [of

proof] is better placed on the party with easier access to

relevant information.” Nat’l Commc’n Ass’n Inc. v.

AT&T Corp., 238 F.3d 124, 130 (2d Cir. 2001). In the

habeas context, the state is in the best position to prove

that the limitations period has run. It will “usually be

able to meet this burden by pointing to materials already

before the district court, namely, by pointing [to] the

petition itself,” or by presenting evidence that it can

easily access from the prison. See Griffin, 308 F.3d at 653.

When questions about AEDPA’s statutory tolling

arise, many of our sister circuits have employed a

“burden shifting” framework requiring the petitioner to

make a threshold evidentiary showing before shifting the

burden of proof to the state. E.g., Allen v. Culliver, 471

F.3d 1196, 1198 (11th Cir. 2006) (per curiam) (requiring

petitioner to make a prima facie showing of delivery

before shifting the burden to the state); Caldwell v. Amend,

30 F.3d 1199, 1203 (9th Cir. 1994) (same); see also Grady

v. United States, 269 F.3d 913, 916 (8th Cir. 2001) (“[u]nder

32 No. 11-3228

our jurisprudence, then, a prisoner seeking to benefit

from the prison mailbox rule must satisfy the require-

ments of Rule 4(c)”). Today, we follow their lead. If the

state raises an AEDPA statute of limitations defense,

the petitioner must come forward with some evidence

to support his claim that, with the benefit of the

Houston mailbox rule, 365 countable days have not

elapsed from the time his state-court judgment became

final to the time he filed his federal habeas petition. See

Allen, 471 F.3d at 1198. After the petitioner makes this

evidentiary showing, the burden shifts to the govern-

ment to prove that the limitations period has run. See id.

The state argues that the burden shifting framework

is inappropriate in cases like this one, where the court

never receives the prisoner’s purported filing. The Fifth,

Ninth, and Eleventh Circuits have each confronted this

issue. See Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir.

2001); Allen, 471 F.3d at 1198; Stoot, 570 F.3d at 671. Not

one has abandoned the burden shifting framework

under similar circumstances. To the contrary, they

each have applied the usual framework, limiting the

petitioner’s burden to that of making a threshold evi-

dentiary showing of timely delivery to a prison official

regardless of whether the purported filing was received

by the court. Allen, 471 F.3d at 1198. After the

petitioner makes this showing, ordinarily via a sworn

declaration or notarized statement, the burden shifts to

the state to prove untimeliness. E.g., Huizar, 273 F.3d

at 1223-24; Allen, 471 F.3d at 1198.

In Huizar, the petitioner gave prison officials his state

habeas petition for mailing. He wrote to the state court

No. 11-3228 33

to get an update about two months later, but received

no response. Twenty-one months later, he wrote again.

In his second letter, he detailed his previous attempt to

file his petition and requested that the court investigate

the matter. One month later, the petitioner received the

court’s response informing him that his petition had

never been received. The petitioner then filed a supple-

mental petition, which the court denied. The case

required the Ninth Circuit to decide for the first time

whether the mailbox rule “applies if the petition is never

received or filed by the court.” Huizar, 273 F.3d at 1222.

The petitioner argued that the “period from the date

he gave his first state petition to prison officials . . . to the

date it was denied . . . does not count toward AEDPA’s one-

year period.” Id. at 1223 (emphasis added). Agreeing

that Houston’s “rationale applies with equal force” in

cases where the court does not receive the purported

filing, the Ninth Circuit held that “[a] prisoner who

delivers a document to prison authorities gets the

benefit of the prison mailbox rule, so long as he diligently

follows up once he has failed to receive a disposition

from the court after a reasonable period of time.” Id.

at 1224. The court found as a matter of law that twenty-one

months is “not an unusually long time to wait for a

court’s decision,” but remanded the case to the district

court to give the “state . . . the chance to contest” whether

the petitioner “handed over his petition” when he

claimed to have done so. Id.

In Allen, the Eleventh Circuit applied the mailbox

rule despite the fact that the petitioner’s federal notice

of appeal was not received by the court. 471 F.3d at 1198.

34 No. 11-3228

The court disagreed with the Ninth Circuit’s imposition

of a diligence requirement because “[o]nce there has been

a finding of fact that a timely notice of appeal was in

fact delivered to the proper prison authorities . . . , there is

no room . . . for the operation of a diligence requirement.”

Id. It remanded the case, however, so the district court

could “inquire further as to the actual facts concerning

whether . . . a notice of appeal was delivered to the

prison authorities.” Id. In so doing, the Eleventh Circuit

explained that “both Houston and Fed. R. App. P. 4(c)”

suggest that “the burden of proof should be placed

upon the state if Allen files a sworn declaration or nota-

rized statement setting forth the date of deposit and

attesting that postage had been paid.” Id. at 1198-99 & n.2.

Notwithstanding the Ninth and Eleventh Circuits’ split

on the “diligence” requirement, both recognize that

Houston’s rationale supports placing the burden on the

state to prove untimeliness. The Ninth Circuit ap-

pealed to the practical disadvantages and fundamental

unfairness of putting the burden on the prisoner because

“ ‘prison officials may have an incentive to delay pris-

oners’ court filings, and prisoners will have a hard

time proving that the officials did so.’ ” Huizar, 273 F.3d

at 1223 (quoting Houston, 487 U.S. at 270-71). The

Eleventh Circuit found those same factors persuasive.

Allen, 471 F.3d at 1198 n.2 (citing Houston for the proposi-

tion that prisons have procedures in place and can

readily dispute a prisoner’s assertions of delivery). We

agree that the ultimate burden of proof in these cases

should rest with the state because the pro se prisoner

occupies a unique disadvantage, and he cannot control

No. 11-3228 35

or freely monitor documents that he directs to the court.

See Houston, 487 U.S. at 275-76. The burden shifting frame-

work we adopt today reflects the state’s “superior access

to the proof.” Int’l Bros. of Teamsters v. United States, 431

U.S. 324, 359 n.45 (1977) (“Presumptions shifting

the burden of proof are often created to reflect judicial

evaluations of probabilities and to conform with a

party’s superior access to the proof.”). It is also con-

sistent with Congress’s overarching goals for AEDPA,

which includes maintaining federal-state comity,

securing the finality of the judicial process, and expedi-

tiously handling habeas proceedings. As the Supreme

Court recently made clear, AEDPA’s goals are often

well served by empowering district court judges with

discretion to reach the substantive merits of a habeas

petition. Cf. Day, 547 U.S. at 208 (holding that “consider-

ations of comity, finality, and the expeditious handling

of habeas proceedings” are better served by permitting

judges to exercise discretion in each case to decide

whether to sua sponte dismiss on statute of limitations

grounds or reach the merits of the petition).

We pause to address the state’s argument that our

allocation of the burden in this way would require it

to prove a negative. This argument has only superficial

appeal. “Proving a negative” suggests requiring the

state to do the impossible—that is, to exclude the peti-

tioner’s delivery of his filing to a prison official from

the realm of all possibility. But the state is not required

to prove to a statistical certainty that the petitioner

did not hand his document to a prison official on the

date that he claims to have done so, and parties are re-

36 No. 11-3228

quired to make similar showings all the time in litiga-

tion. Indeed, the very merits of a statute of limita-

tions defense depends on a showing that the complainant

did “not” file a lawsuit in time. See, e.g., Kilgore, 519 F.3d

at 1088-89 (“[A] heightened pleading requirement

would be inconsistent with other aspects of the habeas

scheme, which recognize the practical difficulties peti-

tioners face in bringing their claims.”). There can be no

doubt that the state is in a better position to show that

a prisoner did not give his petition to a prison official

for mailing than the prisoner is in to prove that he did.

See Pliler v. Ford, 542 U.S. 225, 232 (2004) (“[Timeliness]

calculations depend upon information contained in

documents that do not necessarily accompany the peti-

tions.”). As the Houston Court emphasized, the pro se

prisoner hands his petition “over to prison authorities

who have well-developed procedures for recording

the date and time at which they receive papers for

mailing and who can readily dispute a prisoner’s asser-

tions that he delivered the paper on a different date.”

Houston, 487 U.S. at 275-76. The state “will be the only

party with access to at least some of the evidence needed

to resolve such questions.” Id. It could, for example,

produce “prison mail logs” or present the (likely non-

adverse) testimony of the prison official who allegedly

handled the prisoner’s mail. As for the pro se prisoner

confined to his cell, “evidence on any of these issues

will be hard to come by” and he can “only guess

whether the prison authorities, the Postal Service, or

the court clerk is to blame for any delay.” Id. This is “one

of the vices the [mailbox] rule is meant to avoid.” Id.

No. 11-3228 37

We should not forget that it is the state, vis-à-vis

the prison, that determines how prison mail is handled

in the first place. The state could require its prisons to

implement detailed intake and outgoing procedures

for prisoner mail, including signatures on receipt,

copies of envelopes addressed to the court, or other

mechanisms aimed at closely tracking prisoner mail. We

see no reason why a prison’s failure to institute such

procedures should serve to penalize pro se prison liti-

gants. Instead, it reinforces our belief that “the

prison [should bear] the burden of showing that

the prisoner should not be entitled to the benefits of

Houston’s dispensation.” See Thomas v. Gish, 64 F.3d 323,

325 (7th Cir. 1995). This is so because the prison could, if

it wanted, adopt these or similar procedures. Its failure

to do so leaves the pro se prisoner bearing the risk that

his document will be mishandled, but without the

means of proving his case. Since it has control over the

prison mail policies, control over prisoner mail, and

control over the prisoner himself, the state should bear

the burden of proving that a pro se prisoner’s federal

habeas petition is untimely. See Washington v. United

States, 243 F.3d 1299, 1301 (11th Cir. 2001) (per curiam)

(“[A] prisoner’s pro se § 2255 motion is deemed filed

the date it is delivered to prison authorities for mail-

ing” and “the burden is on prison authorities to prove

the date a prisoner delivered his documents to be

mailed. Absent evidence to the contrary in the form of

prison logs or other records, we will assume [the peti-

tioner’s claim is true].”). To the extent the state feels it

is tasked with “proving a negative,” it can allay

38 No. 11-3228

those concerns by implementing procedures to better

track and document its prisoners’ outgoing mail. See id.

The partial dissent (hereinafter the “dissent”) suggests

that placing the burden on the state is particularly trouble-

some in this case because the prison policy forbade

staff from handling mail for an inmate. (See post at 58-59.)

But this interpretation of prison policy is simply incor-

rect. The policy relied upon by the dissent, “All inmate

mail will be processed through the institutional mailroom.

No person, either staff or visitors, is permitted to bring in

or take out any mail or article for an inmate,” is more

naturally read to mean that mail coming in or out of the

prison cannot be delivered through anything other than the

institutional mailroom (i.e., inmates cannot directly give mail

to visitors for placement into a mailbox outside of prison).

Furthermore, another provision in the same section of

the prison policy expressly provides, “At no time will

an inmate/resident be involved in the collection,

handling, or distribution of mail,” which necessarily

means that staff are responsible for collecting or

handling inmate mail, likely for security reasons. In

any event, the state proffered no evidence to contradict

Ray’s testimony that he was allowed to give outgoing

mail to staff for delivery to the mailroom, which is

entirely consistent with the above interpretation.

We recognize the need to identify some limiting princi-

ple. Otherwise, as the state correctly points out, a pris-

oner’s purported filing might be “properly filed” or

“pending” for years without anyone knowing. To

avoid this, we think the petitioner’s requisite evidenti-

No. 11-3228 39

ary showing should be exacting. The prisoner’s sworn

declaration should identify the who, what, when, where,

how, and why of his alleged delivery to a prison offi-

cial. And in cases where the purported filing is not re-

ceived by the court, the petitioner must supply a

sworn declaration attesting to these facts plus some

other corroborating evidence. This “other evidence” can

be documentary (for example, copies of the filing, post-

marked envelope, or other correspondences). Or, it may

be testimonial. But once the pro se prison litigant

adduces such evidence, he has done all that is required.

The burden then shifts to the state to show untimeliness.

We also reject the Ninth Circuit’s “diligence” require-

ment. We agree with the Eleventh Circuit that a

prisoner’s lack of diligence cannot operate to unfile a

filed document. See Allen, 471 F.3d at 1198. And re-

quiring prisoner diligence is inconsistent with the

spirit of the Houston mailbox rule. The whole point is that

the prisoner is not at liberty to freely monitor his corre-

spondences from mailing to delivery. How might a pris-

oner follow up with the court? With additional mailings?

If prison officials are dead set on preventing a prisoner

from filing court documents, they probably will interfere

with the prisoner’s ability to diligently follow up on

previously sent but not received filings, and if they are

completely incompetent the petitioner’s follow-up mail

will also likely not be delivered. Under either circum-

stance, the diligence requirement would nullify

the rule. We do not accept results so inconsistent

with Houston.

40 No. 11-3228

“[T]he potential for fraud does not justify obligating

truthful prisoners to prove that they mailed their [court

documents] when the prison authorities do not provide

them with means for verification.” Dole v. Chandler,

438 F.3d 804, 813 (7th Cir. 2006) (exhaustion of state

grievance procedures in prisoner § 1983 case). Accord-

ingly, we hold that in cases where the pro se prisoner’s

post-conviction motion is not received, the petitioner

must submit a sworn statement and some evidence to

support his claim that he timely delivered the filing to

a prison official, but once he satisfies this evidentiary

showing, the burden shifts to the state to prove that

his federal habeas petition is untimely.

C. The State Did Not Carry Its Burden

To summarize what we have accomplished so far, the

Houston mailbox rule operates to “file” a pro se prisoner’s

state post-conviction motion under AEDPA’s statutory

tolling provision unless the state has clearly rejected the

rule. This rule applies even if the filing is not subject to

a deadline under state procedural rules and regardless

of whether the petitioner’s purported filing is actually

received by the court. But if the filing is not received, the

petitioner bears the initial burden of identifying (by a

sworn declaration in compliance with Fed. R. App. P. 4(c))

the who, what, when, where, how, and why of his

timely delivery to a prison official and providing some

additional corroborative evidence. Once the petitioner

makes this evidentiary showing, however, the burden

shifts to the state to prove that the federal habeas

No. 11-3228 41

petition is untimely. With these legal issues settled, we

now address the merits of Ray’s appeal.

The district court found that Ray was “not credible” and

that he did not give Ms. Smith his section 974.06 motion

on April 27, 2004. It made this determination despite

Ray’s sworn declaration, live testimony, myriad sup-

porting documents, and the corroborating testimony of

two prison employees. The court, adopting the state’s

argument, dismissed Ray’s testimony and evidence as

products of an elaborate fraud designed by a “sophisti-

cated” individual to circumvent AEDPA’s one-year

limitations period.

We review the district court’s findings of fact for

clear error. Bintz, 403 F.3d at 865. “A factual finding

is clearly erroneous when, after reviewing the com-

plete record, we are left with the definite and firm con-

viction that a mistake has been committed.” Holleman

v. Cotton, 301 F.3d 737, 741-42 (7th Cir. 2002) (citation

and internal quotation marks omitted). We will reverse

if the district court’s findings are “implausible in light

of the record viewed in its entirety.” Gorham v. Franzen,

760 F.2d 786, 790 (7th Cir. 1985) (citation and internal

quotation marks omitted). But if there “are two

permissible views of the evidence, the [district court’s]

choice between them” will not be disturbed. Anderson

v. City of Bessemer City, 470 U.S. 564, 573 (1985). The

dissent notes that “ ‘[s]pecial deference is given to the

district court’s factual determinations because the district

court had the opportunity to hear the testimony and

observe the demeanor of witnesses . . . .’ ” (Post at 61

42 No. 11-3228

(quoting United States v. Smith, 668 F.3d 427, 430 (7th Cir.

2012)); see also id. at 100 (“the district court had the

benefit of watching Ray’s demeanor . . .”).) We agree. But

here the district court made no finding concerning Ray’s

demeanor or presentation, and instead based its “credibil-

ity” finding on nothing more than a string of speculative

doubts, none of which were based on any competent

contradictory evidence presented by the state, as

we explain below.

We begin by reviewing Ray’s evidence. Before the

evidentiary hearing, Ray submitted a sworn declaration

describing the who, what, where, where, why, and how

of the events that made his filing timely under Houston.

Ray swore, under penalty of perjury, that he gave his

state post-conviction motion to Ms. Tamara Smith,

an undisputed prison official, during “lunchtime” on

April 27, 2004. He alleged that he gave Ms. Smith his

motion “downstairs” in his prison unit and the two

proceeded into the “social worker’s office” where she

searched for, located, and provided him two docu-

mentary receipts. He also explained “why” he gave

Ms. Smith his motion instead of using the prison mail

system: his unit was on administrative confinement

and the prisoners had no access to the regular mail

system at the time. The dissent asserts, “It is difficult to

believe that a prisoner could roam with that much

freedom and be able to walk to the social worker’s office,

but be unable to walk with the social worker to the cen-

trally located mailbox or the prison mailroom.”

(Post at 73.) But this doubt is based purely on specula-

tion about how Diamondback was configured, and what

No. 11-3228 43

its specific administrative confinement policies were.

Absent actual evidence, it is not implausible to believe

that prisoners are entitled to access their social workers

during periods of administrative confinement but not the

mailroom.

The documents Ray provided corroborated his testi-

mony. He kept and produced copies of the letters he

allegedly sent Ms. Smith on June 1, 2004, September 9,

2004, June 15, 2005, and November 1, 2006. He offered a

copy of the certificate of service that she allegedly

pulled from a cabinet in the social worker’s office and

gave him to sign after he gave her his post-conviction

motion. The dissent emphasizes the discrepancy be-

tween Ray’s testimony that he filled out the certificate

of service form, and other documents in which Ray

refers to the certificate of service form as being filled out

or signed by Ms. Smith. (See post at 70.) But this minor

discrepancy does not render Ray’s story “so internally

inconsistent or implausible on its face that a rea-

sonable factfinder would not credit it.” Anderson, 470

U.S. at 575. The dissent argues that, “[h]ad [Ray] not

changed his story, the State could have shown, through

handwriting analysis, that Ray had completed the form.”

(Post at 70.) But it makes no difference who tech-

nically filled out that form, so long as it demonstrates

that Ray had asked Ms. Smith to mail out his motion.

The typos in the document, and its lack of any distin-

guishing characteristics like a letterhead, were con-

sistent with other official CCA documents, of unques-

tioned authenticity, that Ray introduced into evidence

bearing the same defects. And no one testified that

44 No. 11-3228

Ray’s certificate of service was phony. In comparing

these forms, the district court “remain[ed] convinced

that in both form and content the certificate looks more

like the work product of a prisoner than a prison ad-

ministrator,” and the dissent argues that we have improp-

erly substituted our judgment for the district court’s.

(See post at 69.) Such substitution might be improper if the

district court had a sound basis for arriving at

this conclusion, such as actual testimony about the

falsity of the form or the high grammatical standards

to which prison forms adhere. But the district court’s

only basis was its own eyeball comparison of the docu-

ments, and upon review of the documents on appeal,

we conclude that they are not so inherently dissimilar

that a factfinder could reasonably conclude that one is

a fake, while the other is not.

Although the CCA receipt that Ms. Smith reportedly

signed was not in the record, Ray offered an essentially

uncontested reason for his failure to produce it: the

prison library or mail system lost the document after

he gave it to the library staff for copying. The only evi-

dence remotely contradictory was the testimony that

this might have been the first time during both

Officer Nedbal’s and Ms. Martin’s tenure that a

prisoner’s copy request had been lost. But as both

Officer Nedbal and Ms. Martin confirmed, the prison

would only know if the prisoner reported it to the

library staff or some other prison official. So it is

certainly possible that Ray’s requested copies were not

the first to be lost. Even if they were, that fact does not

establish an evidentiary basis for finding that Ray manu-

No. 11-3228 45

factured the CCA receipt or fabricated a fictitious

tale about it. The state could have, but did not, put

Ms. Smith on the stand to dispute Ray’s claims.

Finally, in addition to offering his own sworn testi-

mony and corroborative documents, Ray presented the

testimony of two prison employees, Officer Nedbal

and Ms. Martin. While both admitted that they could

not be certain that the documents that Ray claims to

have been lost were actually lost or contained the

original receipt that Ms. Smith allegedly signed, they

also testified that prison policy required prisoners to

describe in detail the documents they submit for copying

and anything “suspicious” would be reviewed by a

supervisor. Included on the list of “suspicious” requests

were submissions with descriptions that did not match

its contents. But no one flagged Ray’s submission for

review. The testimony of both Officer Nedbal and

Ms. Martin lent further credibility to Ray’s claim that

he had, but lost, a CCA receipt signed by Ms. Smith.

The dissent defends at length the district court’s specula-

tive basis for finding that the privilege correspondence

receipt was entirely fabricated. (See post at 74-89.) The

following points of response are in order. First, it takes

a speculative leap to go from the mere fact that Ray

described the document in the disbursement request

form in a lot of detail to the conclusion that he

fabricated it. Second, the fact that librarians were not

required to affirmatively verify the authenticity of docu-

ments to be copied does not create a reasonable

inference that the document was therefore a fake or

nonexistent. Third, the dissent joins the district court

46 No. 11-3228

in critiquing Ray’s shortcomings as a pro se litigant,

such as Ray’s less-than-perfect bookkeeping practices

or failure to cite the most convincing pieces of evidence

(e.g., the receipt) at specific stages of proceedings

(see also id. at 94-97 (noting failure to have state motion

notarized, failure to notify state court of prison transfers,

and failure to retain copies of certain documents)), but

that is simply insufficient to jump to the conclusion

that the receipt must therefore not exist. Fourth,

the dissent finds it incredible that upon obtaining rep-

resentation, Ray would take it upon himself to track

down the receipt, but as any pro bono attorney repre-

senting an overly eager prisoner client can attest, that is

not so inherently unusual, especially when attorney-

client communication is neither quick nor easy when

the client is in prison and can be transferred at any

time with little notice if any to the attorney, further de-

laying communication. Last, the dissent argues that it is

implausible that Ray would have been able to obtain

the receipt which was held by another inmate in

another prison in less than 18 days. (See also id. at 98-99.)

That theory is not without force, but unfortunately for

the state, it did not actually produce any evidence

to support it.

Ray’s sworn declaration, live testimony, documentary

evidence, and corroborating witnesses were more than

sufficient to shift the burden of proving untimeliness to

the state. The state’s evidence consisted of two things:

Ms. Highley’s testimony and the Diamondback Correc-

tion Facility’s prisoner mail policy. Ms. Highley had

no record of Ray purchasing postage during April 2004.

No. 11-3228 47

But her knowledge was limited to that specific time

frame. She could not rule out the possibility that Ray

had retained postage from earlier purchases, borrowed

stamps from other prisoners, or received postage from

family members or friends who were not incarcerated.4

The prisoner mail policy added nothing of substance.

Although Ray claims to have received a receipt for his

outgoing legal mail and the policy does not mention

issuance of receipts for such mail, the state did not

produce Ms. Smith or some other prison official to

counter Ray’s testimony that the prison had, and occa-

sionally provided, receipts.

The state did advance a number of arguments at

the evidentiary hearing. First, it labeled Ray a “sophisti-

cated” prisoner, with habeas expertise, because he had

“boxes” of legal documents. Were these small shoe

boxes or large moving boxes? Were they filled with

distinct documents or multiple drafts or copies of only

a handful unique ones? The record does not say. And

unlike the dissent, we do not find it at all inconsistent

4

The dissent asserts that Ray’s testimony about postage was

“inconsistent” with Ray’s affidavit attached to his habeas

petition, and that this somehow meant that Ms. Highley’s

testimony “supported the district court’s factual findings.”

(Post at 72.) But the assertion in Ray’s affidavit that he gave Ms.

Smith a disbursement request is not at all inconsistent with

Ray’s testimony that he gave Ms. Smith a disbursement request

and used stamps as postage. In any event, Ms. Highley’s

testimony simply doesn’t support the district court’s factual

findings as discussed above.

48 No. 11-3228

that Ray did not understand the law governing

federal habeas corpus when he wrote the state court on

October 4, 2006, but then filed a petition in federal

court purportedly demonstrating sophisticated knowl-

edge about habeas on November 27, 2006. (See post at 90-

91.) It is not implausible that Ray would obtain a

working knowledge of habeas in two months, especially

after the need for such knowledge took on increased

urgency when he learned that his state motion was

never filed. It is also not at all unusual for pro se

filings to contain sophisticated legal arguments, since

prisoners routinely rely on templates created by other

inmates when filing motions; indeed, Ray testified that

he was “relying off inmates to help.”

Second, the state accused Ray of concocting a sophisti-

cated scheme in October 2006 to assert a mailbox rule

claim and avert AEDPA’s one-year time bar. According

to the state, Ray made up the whole story about giving

his section 974.06 motion to Ms. Smith and receiving

two receipts (one signed) from her. He manufactured the

certificate of service and the letters that he swears he

sent Ms. Smith in order to support his bogus claim. Ray

then pursued his mailbox rule strategy in federal court

after the state appellate court denied his post-conviction

motion. Finally, after we found that his constitutional

rights had been violated during his criminal trial and

remanded to the district court to give the state an oppor-

tunity to rebut Ray’s claim of timeliness, Ray tricked

the prison staff into believing that they had copied and

lost a CCA receipt signed by Ms. Smith.

No. 11-3228 49

What the state did not do, however, was present evi-

dence in support of its theory. It did not produce Tamara

Smith, nor deny her existence. It is certainly possible

that, had she been called, Ms. Smith might have

testified that she has no recollection of April 27, 2004.

But it is equally likely that she might have flatly denied

Ray’s account, or—worse for the state—confirmed it.

Unfortunately, we can only speculate because the state

did not produce her. Nor did the state produce any of

Diamondback’s former employees to explain if and

how the mail policy applied when prisoners were admin-

istratively confined, whether receipts were provided

for outgoing legal mail, whether prisoners at the

facility would have known that they were slated to be

transferred to a different prison and the scheduled date

of transfer, or whether Ray’s supporting documents

were fraudulent. And the Diamondback prison mail

logs? Not in the record. None of this evidence is in the

record. The dissent agrees that the state did not present

the above evidence, but notes that the “law does not

require direct evidence to prove a fact—circumstantial

evidence will suffice.” (Post at 63; see also id. at 63 n.2

(state’s “inability to obtain direct evidence of Ray’s

fraud does not insulate Ray from a finding that he is not

credible”).) But the state did not even present circum-

stantial evidence upon which a factfinder could have

reasonably based his doubts about Ray’s testimony.

The dissent argues that, based on Ray’s testimony that

he was in administrative confinement because “they

was bringing Wisconsin prisoners back from Oklahoma

back to Wisconsin,” the district court “could very rea-

50 No. 11-3228

sonably conclude that Ray knew he was returning to

Wisconsin while in confinement and that it was

strange that he would decide to mail the motion to a

Wisconsin court from Oklahoma . . . .” (Post at 67-68.)

But even if Ray did know that he was returning to Wis-

consin (and nothing shows he knew when he would

be transferred), the fact that a prisoner would want to

mail an important state post-conviction motion as

soon as it was ready is not so incredible such that the

district court could have reasonably discredited his

testimony. It is not clear how placing mail destined for

a Wisconsin address in a Wisconsin mailbox is so

superior to placing it in an Oklahoma mailbox, such

that any normal prisoner would obviously delay filing

such a critical motion (and consequently, delay his poten-

tial release from prison) for an indefinite period of time,

just for the opportunity to put that motion in a Wis-

consin mailbox.

In sum, the state prevailed in the district court by

branding Ray a sophisticated prison litigant and a liar,

without any evidence to support those accusations.

We think Ray’s counsel hit the nail on the head in his

briefs and at oral argument. The state’s argument

requires us to believe that Ray knew in 2004 that the

mailbox rule would apply to a section 974.06 post-convic-

tion motion filed in Wisconsin, even when the motion

is not received by the state court—issues that we

decide today as a matter of first impression. In 2004,

the only circuit authority for applying the mailbox rule

to statutorily toll AEDPA were the cases decided by the

Ninth Circuit. E.g., Caldwell, 30 F.3d at 1203. By that

No. 11-3228 51

time, however, the “diligence” requirement was also

firmly established in that circuit’s law. E.g., Huizar, 273

F.3d at 1222. But Ray does not argue that he diligently

followed up with the state court during the two years

that passed from the time he allegedly gave Ms. Smith

his motion to the time he filed his second, supple-

mental motion. We must also believe that Ray foresaw

that neither Ms. Smith nor anyone else from the

Diamondback Correctional Facility would testify at the

inevitable evidentiary hearing—surely Ray would have

known that Ms. Smith’s or another CCA official’s testi-

mony contradicting his claims likely would have pro-

vided evidence to support the district court’s dismissal

of his petition as untimely. All of this might in fact be

true, but without evidence there is no basis for

believing any of it.

There is no dispute that the district court placed the

burden of proof on Ray. This was error. Our review of the

record convinces us that the district court’s error was

not limited to the law, however. The state did not

submit any evidence to contradict Ray’s testimony and

evidence. And it certainly did not carry its burden of

proving that Ray’s federal habeas petition was un-

timely. Yet the district court found that Ray had concocted

an elaborate scheme to defraud the court and subvert

AEDPA’s limitations period, and it concluded that Ray’s

federal habeas petition was untimely filed. This conclusion

lacks an evidentiary basis. We have a “definite and firm

conviction” that the district court made a mistake; its

findings are clearly erroneous. See Harris v. Reed, 894 F.2d

871, 878 (7th Cir. 1990) (finding clear error where the

52 No. 11-3228

district court “construct[ed] a trial strategy supporting

[petitioner’s] counsel’s decision” not to call material

witnesses at the petitioner’s trial); Gorham, 760 F.2d at 795

(finding clear error in district court’s rejection of evidence

related to the petitioner’s waiver of his Miranda rights

because the state failed to “mention[] [the evidence] at the

suppression hearing” during the petitioner’s trial). The

dissent believes that we have “isolate[d] each piece of

evidence and then one by one conclude[d] that the individ-

ual inconsistency or implausibility is insufficient by itself

to support the district court’s factual findings” (post at 66-

67 n.4), but all we have done is demonstrate how the

district court discredited each piece of Ray’s evidence

based not on proof from the state, but on speculation.

Speculation piled on top of speculation does not a

factual finding make; zero plus zero still equals zero.

Ray’s constitutional rights were violated during his

criminal trial. There is no dispute about that. After we

remanded this case to the district court to decide

whether Ray’s federal habeas petition was untimely,

the state had over one year from the time our mandate

issued on April 13, 2010 until the evidentiary hearing.

This was more than enough time for the state to cull

together evidence sufficient to refute Ray’s claim and

make a persuasive case for untimeliness. The state ap-

parently “made numerous phone calls to . . . other CCA

prisons still operating in Oklahoma” but was met “with

voicemails and unreturned calls for months.” It did

“everything” it could think of “to get more information

from CCA on . . . their policies,” but was ultimately

unsuccessful. So the state appeared at the evidentiary

No. 11-3228 53

hearing with one witness, who could only speculate

about whether Ray might have had postage in April 2004,

and a prison mail policy that did not contradict

Ray’s testimony about the issuance of receipts for out-

going mail. Without evidence, the state painted Ray as

a “bright,” “sophisticated,” and experienced habeas

litigant familiar with AEDPA’s one-year limitations

period and the Houston mailbox rule’s applicability to a

pro se prisoner’s purported filing that is not actually

received by the court. Branded a liar, what was Ray to

do? No amount of evidence could have overcome

this hurdle. The district court sided with the state. But

it did so only after incorrectly placing the burden of

proof on Ray. We previously held that Ray’s constitu-

tional rights were violated during his state court trial. So

we now reverse the district court’s dismissal of Ray’s

petition as untimely, reinstate the petition, and remand

this case with instructions to grant the writ unless the

state elects to retry him.

In concluding, we highlight an interesting irony in

this case that we think is relevant to our decision to

place the burden of proving untimeliness on the state.

The state notes the difficulty it has had in obtaining

evidence from and about CCA and Diamondback; it

was met with unreturned messages for “months.” This is

the state’s attorney’s office. Imagine the difficulty, and

possible resistance, that a pro se prisoner will likely

face under similar circumstances. To ignore this prac-

tical reality is to elevate form over substance, procedure

over justice. Without a clear statutory command to

that effect from AEDPA, and in light of the Supreme

54 No. 11-3228

Court’s dictates in Houston, we reject the state’s

request that we do so here.

III. CONCLUSION

For the above-stated reasons, we R EVERSE the

district court’s dismissal of the petition for writ of habeas

corpus, and R EMAND with instructions to grant the

writ unless the state elects to retry the petitioner within

120 days of issuance of our final mandate or of the Su-

preme Court’s final mandate.

M ANION, Circuit Judge, concurring in part, dissenting

in part.

I.

Ray filed this habeas action in federal court on

February 28, 2007. Opinion at 5. The district court denied

Ray’s petition and he appealed to this court. This court

held that Ray’s clearly established confrontation clause

rights were violated when the state court admitted co-

actors’ statements through a police detective’s testi-

mony at trial. Ray v. Boatwright, 592 F.3d, 793, 798 (7th

Cir.), as amended (Apr. 1, 2010). However, after holding

that Ray’s constitutional rights had been violated, this

court remanded the case to the district court to allow

No. 11-3228 55

the district court to determine whether Ray’s habeas

petition had been timely filed. The government had

argued that Ray’s habeas petition had been filed after

the one-year statute of limitations had run, but Ray

had claimed in his habeas petition that the statute of

limitations had been tolled because he had handed a

state court petition to a prison social worker on April 27,

2004 for mailing. This court concluded that because

the district court had dismissed Ray’s habeas petition

on the merits, before giving the government “an oppor-

tunity to answer the petition and develop the record,”

id. at 798-99, remand was required. Specifically, this

court explained:

the government has not yet had a chance to chal-

lenge whether the documents Ray placed into

the record are authentic; whether the state court

petition was ever received by prison officials;

whether the papers Ray filed were sufficient

under state law to petition for post-conviction

relief; or whether the individual to whom Ray

allegedly gave his petition was a proper prison

authority. Accordingly, we remand this case to

the district court so that the government may

have an opportunity to develop the record on this

issue. If, after the record is fully developed, Ray’s

petition is determined to be timely, this Court

directs the district court to grant the petition for

writ of habeas corpus unless the State chooses

to retry Ray within 120 days.

Id. at 799.

56 No. 11-3228

On remand, the district court followed our directive.

He held an evidentiary hearing at which Ray testified,

along with three state employees (two from the prison

library and another involved with prisoner accounts).

The documentary evidence Ray presented in support of

his claims of timeliness was admitted into evidence, as

were prison policies from Diamondback. Following the

evidentiary hearing, based on the testimony and docu-

mentary evidence, the district court concluded, as a

factual matter, that the documents Ray presented were

not genuine and that his testimony was not credible.

The district court further found that Ray had not

given Smith a state post-conviction motion on April 27,

2004 for mailing.

Notwithstanding that the district court did exactly

what we directed, the court today holds that the

district court’s credibility finding and its finding that

Ray did not give the motion to a social worker on April 27,

2004 were clearly erroneous. Opinion at 51. I disagree;

the district court’s factual findings, far from being

clearly erroneous, were compelled by contradictions and

implausibilities in Ray’s story and the documentary

evidence. Moreover, while I agree the prison mailbox

rule applies (and thus I concur in Part II. A of the opin-

ion), I disagree that the state bore the burden of proving

that Ray had not given the purported state post-con-

viction motion to a social worker on April 27, 2004.

However, contrary to the court’s conclusion that “after

an evidentiary hearing, the district court placed the

burden of proving timeliness on Ray,” Opinion at 2, the

district court did in fact place the burden of proof on the

No. 11-3228 57

state and then concluded that the state had met its bur-

den. And that finding was not clearly erroneous. Ac-

cordingly, I concur in part and dissent in part.

II.

A. Ray bears the burden of proving tolling.

I agree that the state bears the burden of proving the

affirmative defense of the statute of limitations. Gildon v.

Bowen, 384 F.3d 883, 886 (7th Cir. 2004). But the state

met this burden. The state established that Ray did not

file his federal habeas petition until February 28, 2007,

and that this filing was not within the one-year statute

of limitations because Ray’s state conviction became

final on or about September 10, 2003. The state further

established that Ray had not filed a state post-conviction

petition, which could toll the statute of limitations, until

October 2007. Thus, the state proved that Ray’s habeas

petition was untimely.

It is Ray who is asserting an exception to the statute

of limitations and it is he who should bear the burden

of proving tolling. While this circuit has yet to address

the issue of the burden of proof for tolling under 28

U.S.C. § 2244(d)(2), we have held that the habeas petitioner

bears the burden of proving equitable tolling. Williams

v. Buss, 538 F.3d 683, 685 (7th Cir. 2008). That this case

involves statutory tolling and not equitable tolling is of

no moment—the same principles apply: The party as-

serting an exception to the statute of limitations’ affirma-

tive defense bears the burden of proving that exception.

58 No. 11-3228

See also Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir.

2009) (stating that the habeas petitioner “bears the

burden of demonstrating that the AEDPA limitation

period was sufficiently tolled” under § 2244(d)(2)).

In holding that the state bears the burden of proving

tolling, the court reasons that “ ‘all else being equal, the

burden [of proof] is better placed on the party with easier

access to relevant information.’ E.g., Nat’l Commc’n Ass’n

Inc. v. AT&T Corp., 238 F.3d 124, 130 (2d Cir. 2001).”

Opinion at 31. But the court’s analysis ignores the re-

mainder of what Nat’l Commc’n said: “The general rule

is that the party that asserts the affirmative of an issue

has the burden of proving the facts essential to its

claim.” Id. And “all else again being equal, courts

should avoid requiring a party to shoulder the more

difficult task of proving a negative.” Id. In this case, it is

Ray who is asserting the affirmative of an issue, namely

that he gave Smith a state post-conviction motion on

April 27, 2004. The court is thus placing on the state

the more difficult task of proving a negative—that Ray

did not give Smith the post-conviction motion. Finally,

I would note that proving the negative in this context

is even more difficult because Ray claims he handed the

petition to Smith in violation of the prison policy

which stated: “All inmate mail will be processed through

the institutional mailroom. No person, either staff or

visitors, is permitted to bring in or take out any mail

No. 11-3228 59

or article for an inmate.” 1 Opinion at 13. No one has

been able to find Smith, but if she was part of the prison

staff, she would have known she was not permitted to

handle prison mail. For these reasons, I dissent from

the court’s holding that the state bore the burden of

proving the statute of limitations was not tolled.

1

The court responds that the more natural reading of this rule

is that no one can take mail into or out of the prison. Opinion at

38. But in addition to specifying that the mail must be

processed through the mailroom, the procedures also discuss

the “posting of outgoing mail,” stating that: “OUTGOING

MAIL WILL BE DELIVERED FROM THE INMATE/RESI-

DENT TO THE FACILITY BY THE FOLLOWING PROCE-

DURE: The mail clerk will pick up the mail from the centrally

located mail box between 8:00 a.m. and 8:30 a.m. Mail will be

delivered to the post office the same day it is received by the

mail clerk in the Diamondback Correctional Facility mail

room.” The policy reiterates this point stating later: “THE

PROCEDURE AT THIS FACILITY FOR COLLECTION OF

MAIL IS AS FOLLOWS: Mail will be collected from the

centrally located mail box Monday through Friday, (excluding

holidays) between 8:00 a.m. and 8:30 a.m.” See also Policy 16-1

(“Outgoing mail will be posted within 24 hours of the time the

mail was turned over to the facility by the inmate/resident, . . .”

(emphasis added)). Taken as a whole, these procedures clarify

that prisoners must deliver outgoing mail to the “facility,” and

not a staff member, via the centrally located mailbox. No

exception is listed for those in administrative confinement

even though the policy includes a list of “ADDITIONAL

PROCEDURES AT THIS FACILITY” related to mail collection.

60 No. 11-3228

B. The district court held that the State bore

the burden of proof.

After concluding that the state bore the burden of

proof, the court concludes that the district court

wrongly placed the burden of proof on Ray. Opinion

at 51. However, the district court’s holding on the burden

of proof is actually consistent with the court’s holding

today. The district court did hold that the state did not

initially carry the burden of proof on tolling. However,

the district court also explained that a prisoner

claiming the benefit of the mailbox rule had the

“initial burden of presenting a sworn declaration setting

forth the requirement of having hand[ed] the prison

official the document to be filed with postage pre-

paid.” The district court then agreed with Ray that at that

point the burden shifted to the state, stating: “Ray is

correct that once the prisoner presents such evidence,

as Ray has here, the burden does shift to the respondent

to refute it.” The district court, though, recognized

that there was a split in the circuits on the burden-

shifting approach, between the Ninth Circuit’s decision

in Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001) and

the Eleventh Circuit’s decision in Allen v. Culliver, 471

F.3d 1196 (11th Cir. 2006) (per curiam), but concluded

that “regardless of which approach is applied here, the

Court finds on the evidence presented that Ray’s petition

was not filed within the one-year period allowed

under § 2244(d)(1).” Thus, the district court did place

the burden on the state and the court is wrong to say

that “[t]here is no dispute that the district court placed

the burden of proof on Ray.” Opinion at 51.

No. 11-3228 61

C. The district court did not commit clear error in

finding that Ray was not credible and in finding

that he had not given Smith a state post-conviction

motion on April 27, 2004, for mailing.

Even if the state bore the burden of proof, as this

court and the district court held, Ray still cannot prevail

because, as discussed below, the district court found,

following an evidentiary hearing, that Ray’s testimony

that he had given a state post-conviction motion to

Tamara Smith on April 27, 2004, to mail was not credi-

ble. The court holds that the district court com-

mitted clear error in finding Ray’s testimony incredible

and in finding that Ray had not given the social worker

a state post-conviction motion on April 27, 2004, to mail.

As the court notes, we will reverse a district court’s

factual findings only if they are “implausible in light of

the record viewed in its entirety.” Gorham v. Franzen, 760

F.2d 786, 790 (7th Cir. 1985). Moreover, as we recently

explained in United States v. Smith, 668 F.3d 427, 430

(7th Cir. 2012), “[s]pecial deference is given to the

district court’s factual determinations because the dis-

trict court had the opportunity to hear the testi-

mony and observe the demeanor of witnesses . . . .” Thus,

because “[d]eterminations of witness credibility are

entitled to great deference [they] ‘can virtually never be

clear error.’ ” United States v. Cox, 536 F.3d 723, 729 (7th

Cir. 2008) (quoting United States v. Blalock, 321 F.3d 686,

690 (7th Cir. 2003)).

Notwithstanding the extreme deference we owe the

district court’s credibility and factual findings, the court

62 No. 11-3228

concludes that the district court clearly erred. The

court justifies its conclusion in four main ways: (1) by

stressing all of the evidence the state did not present;

(2) by stating that the district court merely branded Ray

a liar; (3) by disagreeing with the district court’s reasons

for finding Ray and his story not credible; and (4) by

positing that the state’s theory that Ray manufactured

the evidence is implausible, or at least that there is no

evidence in the record for believing Ray manufactured

the evidence.

1. Evidence not presented by the state.

I address first the court’s emphasis on the evidence the

state did not present. The court first notes that Smith

did not testify, Opinion at 49, and then adds:

Nor did the state produce any of Diamondback’s

former employees to explain if and how the mail

policy applied when prisoners were administra-

tively confined, whether receipts were provided

for outgoing legal mail, whether prisoners at

the facility would have known that they were

slated to be transferred to a different prison and

the scheduled date of transfer, or whether Ray’s

supporting documents were fraudulent. And the

Diamondback prison mail logs? Not in the re-

cord. None of this evidence is in the record.

Opinion at 49.

No. 11-3228 63

It is true that the state did not present this evidence.2

But the absence of this evidence is entirely irrelevant to

the question of whether the district court was clearly

erroneous in finding Ray incredible and his evidence

and story contradictory and implausible. Yes, Smith or

others from Diamondback might have contradicted

Ray’s testimony, but the law does not require direct

evidence to prove a fact—circumstantial evidence will

suffice.3 See, e.g., Bloedorn v. Francisco Foods, Inc., 276 F.3d

2

Diamondback has been closed and the state’s attempts to

speak with former Diamondback staff have proved futile.

Ray’s attorney indicated at oral argument that they have not

made any efforts to find Smith because it is not their burden.

While I disagree with that proposition, see supra at 57-59, even

assuming the state bore the burden of proof, its inability to

obtain direct evidence of Ray’s fraud does not insulate Ray

from a finding that he is not credible.

3

The court responds that “the state did not even present

circumstantial evidence upon which a factfinder could have

reasonably based his doubts about Ray’s testimony.” Opinion

at 49. If the court’s point is that most of the evidence contradict-

ing Ray’s testimony came from Ray himself (and not the state),

that objection is misplaced. See Marantz v. Permanente Medical

Group, Inc. Long Term Disability Plan, 687 F.3d 320, 336-37 (7th

Cir. 2012) (“We will not disturb the district court’s factual

findings after it has weighed the evidence on both sides

unless, after considering all of the evidence, this court is left

with the definite and firm conviction that a mistake has been

made.”) (emphasis added). If, on the other hand, the court

believes that the evidence presented at the hearing does not

(continued...)

64 No. 11-3228

270 (7th Cir. 2001) (“An employer’s motive is a factual

matter which, like any other fact, may be proven by

direct or circumstantial evidence.”). Moreover, the mail

logs the court references, while not produced, would

have been completely useless because Ray testified that

he did not place the motion in the prison’s regular

mail system.

2. “Branding” Ray a liar.

In addition to highlighting the evidence the state did

not present, the court reasoned that: “The state prevailed

in the district court by branding Ray a sophisticated

prison litigant and a liar, without any evidence to

support those accusations.” Opinion at 50. That is not so;

the district court had ample circumstantial evidence,

discussed at length below, to conclude that Ray was

both a sophisticated prison litigant and a liar. Thus,

contrary to the court’s portrayal, this is not a case of

the district court merely branding Ray a liar.

It is true, though, as the Supreme Court has made clear,

that a court may not “insulate his findings from review

3

(...continued)

support a reasonable inference that Ray lied about giving

Smith a post-conviction motion, the court is wrong. As dis-

cussed below, Ray’s testimony, the prison officials’ testimony,

the Diamondback policies, and the extensive documentation

Ray presented to prove his case, taken together created a

reasonable inference that Ray never gave Smith a post-con-

viction motion for filing.

No. 11-3228 65

by denominating them credibility determinations . . . .”

Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).

But as the Supreme Court further explained in Anderson,

there are “factors other than demeanor and inflec-

tion [which] go into the decision whether or not to

believe a witness. Documents or objective evidence

may contradict the witness’ story; or the story itself may

be so internally inconsistent or implausible on [their]

face that a reasonable factfinder would not credit

[them].” Id. That is exactly what we have in this case

and precisely what the district court found. The district

court stated: “Taking into consideration all of the sur-

rounding facts and circumstances of this case, the

Court does not find Ray’s testimony that he handed his

§ 974.06 motion to Ms. Smith on April 27, 2004, credi-

ble.” The district court further explained it was

rejecting Ray’s version of events because of “[i]ncon-

sistencies in his own documentation and further

implausibilities concerning that documentation . . . .”

The district court then detailed a substantial number of

inconsistencies and implausibilities, a few of which

the court simply mentions without examination or con-

tradiction.

3. The court’s disagreement with the district

court’s reasoning.

As noted, the district court detailed a substantial

number of the inconsistencies and implausibilities in

Ray’s testimony and his evidence. In holding that the

66 No. 11-3228

district court committed clear error, the court mentions

these reasons but then presents its own view of this

evidence, substituting its judgment for the district

court’s. This is impermissible. United States v. Mancillas,

183 F.3d 682, 695 (7th Cir. 1999) (“Factual findings are

reviewed for clear error, and this Court will not

substitute its judgment for that of the district court if

there is support in the record for the trial court’s

findings of fact.”) (internal citations omitted).4

4

The court’s response to the dissent illustrates two further

flaws in the court’s review of the district court’s reasoning:

First, the court quotes Anderson out of context to reason that

(what the court perceives as) minor inconsistencies or im-

plausibilities in Ray’s story cannot support the district court’s

factual finding because they are not “so internally inconsistent

or implausible on its face that a reasonable factfinder would not

credit it.” Opinion at 43. But in Anderson, the Supreme Court

was not discussing what was required to support a factual

finding; rather, the Supreme Court was explaining when a

credibility determination could be overturned as clearly er-

roneous. Had the district court found Ray credible, the evidence

might not reach the “so internally inconsistent or implausible

on its face” threshold to conclude that the district court com-

mitted clear error. But in this case the district court found Ray

incredible and thus the court’s reliance on Anderson is mis-

placed. Second, in concluding that the inconsistencies and

implausibilities in Ray’s story and his evidence cannot

support the district court’s factual finding, the court isolates

each piece of evidence and then one by one concludes that

the individual inconsistency or implausibility is insufficient

(continued...)

No. 11-3228 67

a. Ray’s impending transfer to Wisconsin.

For instance, in response to the district court’s

reasoning that it was curious that Ray gave his

Wisconsin state court motion to Smith in Oklahoma for

mailing to Wisconsin when he was about to be trans-

ferred to Wisconsin, the court retorts: The state did not

present any evidence on “whether prisoners at the

facility would have known that they were slated to be

transferred to a different prison . . . .” Opinion at 49. But

Ray testified: “We was on administrative confinement

to the unit. We weren’t—we weren’t allowed to leave

the unit. . . . Because they was bringing Wisconsin pris-

oners back from Oklahoma back to Wisconsin.” From

this testimony, the district court could very reasonably

conclude that Ray knew he was returning to Wisconsin

while in confinement and that it was strange that he

would decide to mail the motion to a Wisconsin court

4

(...continued)

by itself to support the district court’s factual findings. See,

e.g., Opinion at 45-46. However, no one piece of evidence

must support a factual finding; rather the court must take the

entire record as a whole. Cf. Huff v. UARCO, Inc., 122 F.3d

374, 385 (7th Cir. 1997) (discussing standard in a discrimina-

tion case). Thus, that individually some of the vagaries are

minor is of no moment; the court should have considered all

of the inferences flowing from the evidence in total. And in

total, the evidence was more than sufficient to support the

district court’s factual findings that Ray was not credible and

that Ray had not given a state post-conviction motion to

Smith to mail.

68 No. 11-3228

from Oklahoma, especially when he supposedly

couldn’t get to the mailbox in Oklahoma.5

b. The Certificate of Service form.

Regarding the Certificate of Service form Ray claimed

Smith had given him, the district court believed the

form looked like the work product of a prisoner, noting:

“The certificate bears no signatures, other than Ray’s,

and appears on plain white paper with no heading or

other indication that it is an official prison form. It

contains no space for the year of service, and contains

numerous typographical errors.” The court first notes

that “no one testified that Ray’s certificate of service

was phony.” Opinion at 43-44. But as explained above,

the state need not prove its case with direct evidence.

The court then acknowledges that the form had typos

and lacked any institutional markings, but excuses

those problems by noting: “[t]he typos in the document,

and its lack of any distinguishing characteristics like

a letterhead, were consistent with other official CCA

documents, of unquestioned authenticity, that Ray intro-

duced into evidence bearing the same defects.” Opinion

5

The court responds that any normal prisoner would want to

file such a critical motion without delay, to avoid any delay

in his potential release from prison. Opinion at 50. If such an

inference is reasonable, then it is even more reasonable for

the district court to have inferred that had Ray truly filed a

motion with the state court in April 2004, he would not

have waited more than two years to inquire on its status.

No. 11-3228 69

at 43. But the district court considered the other forms

and found that “[e]ven when compared to other

official forms which lack an institutional heading and

contain a grammatical error, the court remains convinced

that in both form and content the certificate looks more

like the work product of a prisoner than a prison ad-

ministration.” The court rejects this added finding

based on its own eyeball comparison of the documents,

but here the court is again improperly substituting its

own judgment for the district court’s.6

6

Because the court relies on its own eyeball comparison of the

two documents to reject the district court’s findings, attached

as Appendix A is a copy of the Certificate of Service form

Ray claims he received from Smith. This form appears to have

been created on a typewriter and as the district court noted,

it contains nothing to indicate it is an official prison document

and it contains typographical errors. A reasonable inference

from the appearance of this form is that it was not a prison

form provided by Smith, but rather one created by Ray. This

inference becomes stronger when the Certificate of Service form

is placed next to some of the letters typed by Ray which the

district court also admitted into evidence and which are

included as Appendices B and C. (For instance, note the use of

“[ ]” instead of the more appropriate “()” in all of the docu-

ments.) Before the district court, Ray attempted to overcome the

inference that he had created the Certificate of Service form

by tendering a document he had received from the New Lisbon,

Wisconsin prison (not from the CCA, as the court states).

Opinion at 43. This New Lisbon form, reprinted as Appendix D,

also has several typographical errors and has no official

(continued...)

70 No. 11-3228

Moreover, in addition to finding that the Certificate of

Service looked more like a form created by a prisoner

than a prison, the district court also found that Ray’s

testimony concerning the Certificate of Service contra-

dicted other documentary evidence. Specifically, Ray

testified that Smith had given him the Certificate of

Service and that he had filled it out. But as the district

court noted, Ray referenced the “Certificate of Service

by Mail” form in his supposed first letter to Smith on

June 1, 2004, but in that letter he stated that she had

filled it out. Ray also mentioned the Certificate of Service

form in his “Motion for Protective Order Staying

And Abeying [sic] Petitioner’s Petition for Writ of

Habeas Corpus Filed Pursuant to 28 U.S.C. § 2254,” and

there he stated that Smith had signed the form.

Ray’s change in story, i.e., from his original claim that

Smith had filled out the Certificate of Service form, to

his current version that he had filled out the form, is

significant. Had he not changed his story, the state

could have shown, through handwriting analysis, that

Ray had completed the form.7

6

(...continued)

prison heading. But its font and appearance differ significantly

from the Certificate of Service form. And a reasonable fact-

finder could infer that this form could not be created on a

typewriter by a prisoner (given the font and the use of

differing font sizes—some large and some small), while the

Certificate of Service form could have been.

7

The court responds by first stating this is a minor inconsis-

tency and then quoting Anderson, Opinion at 43. But, as dis-

(continued...)

No. 11-3228 71

c. Testimony concerning postage.

The state also provided evidence, through the

testimony of Highley, calling into question Ray’s story

that he gave Smith the state post-conviction motion.

She testified that during the time that Ray supposedly

gave Smith the state court motion for mailing, he had

not purchased any postage. The court responds that

the state’s evidence, through testimony of Ms. Highley,

that Ray did not purchase postage during April 2004

did not establish that Ray did not provide Smith with

the motion because Highley “could not rule out the

possibility that Ray had retained postage from earlier

purchases, borrowed stamps from other prisoners, or

received postage from family members or friends who

were not incarcerated.” Opinion at 47. It is true that

during cross-examination Highley testified that she

could not rule out that possibility, but it was one piece

7

(...continued)

cussed above, Anderson is quoted out of context, see supra at 66

n.4, and while it is a minor inconsistency, it adds to the

other inferences supporting the district court’s factual

finding that Ray’s testimony is incredible. The court also

notes “it makes no difference who technically filled out

that form, so long as it demonstrates that Ray had asked

Ms. Smith to mail out his motion.” Opinion at 43. It is true

that it wouldn’t matter who filled out the form if it were

truly given to Ray by Smith in response to his request to mail

out the motion. But that Ray’s story changed does support

an inference that he is lying when he claimed that Smith

had given him that form.

72 No. 11-3228

of evidence the district court could consider in evaluating

Ray’s story. And when considered in light of other

record evidence, Highley’s testimony supported the

district court’s factual findings. Specifically, Ray’s testi-

mony concerning the postage for the state post-conviction

motion was inconsistent with other evidence. Before

the district court, Ray testified that he used stamps for

postage on the state post-conviction motion he pur-

portedly gave Smith, stating he had some and borrowed

a few to make sure there was enough postage on

it and then gave Smith a disbursement request in case

there wasn’t enough postage. However, this testimony

was inconsistent with the affidavit Ray had filed in Feb-

ruary 2007 with his petition for habeas relief: In that

affidavit, Ray stated that he “personally placed [his]

postconviction motion puruant (sic) to 974.06{4, (sic) along

with disbursement request for postage in the hands of

Tamara Smith, . . . . ” Ray made no mention of having

affixed stamps to the envelope. Because Highley’s testi-

mony ruled out the possibility that a disbursement was

made for stamps around the time Ray claimed to have

given Smith the motion, this change in story (i.e., Ray’s

current claim that he had placed stamps on the motion)

takes on a greater significance.

d. Diamondback’s policies.

The court also discounts the state’s evidence con-

cerning the mail policies at Diamondback. First, the

court reasons that nothing in the record explains whether

the Diamondback policy that “[a]ll inmate mail will be

processed through the institutional mailroom. No person,

No. 11-3228 73

either staff or visitors, is permitted to bring in or take out

any mail or article for an inmate,” applies to prisoners

while administratively confined. Opinion at 49. But the

policy clearly states “[a]ll inmate mail.” Moreover, Ray’s

testimony that he gave the motion to Smith because

he could not go to the mailroom is implausible in light

of his other testimony. Specifically, in explaining how

he came to give the motion to Smith, Ray speaks of

leaving his lunch table, going upstairs to his cell, bringing

the envelope with the motion in it downstairs, and

then going into a social worker’s office with her. It is

difficult to believe that a prisoner could roam with

that much freedom and be able to walk to the social

worker’s office, but be unable to walk with the

social worker to the centrally located mailbox or the

prison mailroom.8

The district court also found it “noteworthy that the CCA

Corporate and Facility Policy governing Diamondback

does not mention either a ‘Privileged Correspondence

Receipt’ form or a ‘Certificate of Service By Mail’ form,

but it does specify the form to be used when privileged

correspondence is distributed to an inmate.” The court

counters that while the prison mail policy does not men-

tion the giving of a receipt for outgoing legal mail, the

8

The court responds that without knowing how Diamondback

was configured, this is pure speculation. Opinion at 42. But

Ray testified that when he approached Smith to give her the

post-conviction motion, he had to wait because she had to

take another prisoner “somewhere in the institution.” Based

on this testimony, it is reasonable to infer that Smith could

have likewise taken Ray to the central mailbox or mailroom.

74 No. 11-3228

state did not produce Smith or some other prison

official to prove that forms were not given. Opinion at 47.

But direct evidence is not required and Diamondback’s

policy addressing the handling of privileged correspon-

dence is circumstantial evidence that supports the

district court’s factual findings. That policy stated that

for incoming privileged correspondence “[a] staff

member will distribute privileged correspondence to

inmates using form 16-1D.” Conversely, the policy “AT

THIS FACILITY” for mailing outgoing privileged corre-

spondence provided that “[a]ll outgoing legal mail is

logged in at the mailroom when it is received.” The

district court could reasonably infer from the fact that

the prison policy specified the use of a form to log in-

coming privileged mail and its directive that out-

going privileged mail be logged in the mailroom, that

Diamondback did not give prisoners a Certificate of

Service or a Privileged Correspondence Receipt form

upon mailing privileged mail.

e. The Privileged Correspondence Receipt.

The court next attacks the district court’s findings

concerning the Privileged Correspondence Receipt. The

district court found that it was doubtful that Ray ever

had a Privileged Correspondence Receipt form signed by

Smith. In response, the court conclusorily states: “Ray

offered an essentially uncontested reason for his failure

to produce it: the prison library or mail system lost

the document after he gave it to the library staff for copy-

ing.” Opinion at 44. The court then adds that: “The

No. 11-3228 75

only evidence remotely contradictory was the testimony

that this might have been the first time during both

Officer Nedbal’s and Ms. Martin’s tenure that a

prisoner’s copy request had been lost. But as Officer

Nedbal and Ms. Martin confirmed, the prison would only

know if the prisoner reported it to the library staff or

some other prison official. So it is certainly possible

that Ray’s requested copies were not the first to be lost.”

Opinion at 44. The court continues, saying that even if

Ray’s Privileged Correspondence Receipt was the first

to be lost, “that fact does not establish an evidentiary

basis for finding that Ray manufactured the [Privileged

Correspondence Receipt] or fabricated a fictitious tale

about it.” Opinion at 44-45. The court further reasons

that Officer Nedbal and Ms. Martin “testified that prison

policy required prisoners to describe in detail the docu-

ments they submit for copying and anything ‘suspicious’

would be reviewed by a supervisor,” and that sus-

picious items included ones where the description did

not match its content. But no one flagged Ray’s submis-

sion for review. Opinion at 45. And this testimony “lent

further credibility to Ray’s claim that he had, but lost, a

CCA receipt signed by Ms. Smith.” Opinion at 45.

Far from being “essentially uncontested,” the state

strenuously challenged Ray’s story and the district court

found that “Ray’s evidence that [prison officials] lost

his Privileged Correspondence Receipt form [are] uncon-

vincing.” The district court explained that “[b]ased

on the testimony, it is clear that the document Ray

handed [Corrections Officer] Nedbal for photocopying

could have been a document he created in an attempt to

76 No. 11-3228

manufacture additional evidence to corroborate his

claim that he handed his state post-conviction motion to

Smith for mailing on April 27, 2004.” The district court

further found “[t]he detail in which Ray described the

document in the Disbursement Request form suggested

a purpose beyond a simple request for a thirty-cent

disbursement for photocopying.” And although the

form requires “detailed instructions,” the librarian

testified that “the detail required concerned the direc-

tions for copying, i.e., number of copies, one or two

sides, legal or letter size—not the document to be

copied.” The district court added: “Library personnel were

not expected to determine the authenticity of the docu-

ments submitted for copying. They screened the material

for appropriateness and to insure it did not relate to

a different inmate.” Moreover, prison officials were not

allowed to read legal materials—they mainly looked to

ensure the name of the inmate matched the document.

Based on this testimony, the district court found Ray’s

claim that prison officials lost the Privileged Correspon-

dence Receipt unconvincing. This finding was amply

supported by the evidence.

In response to the dissent, the court states: “[I]t takes

a speculative leap to go from the mere fact that Ray

described the document in the disbursement request

form in a lot of detail to the conclusion that he

fabricated it.” Opinion at 45. The court’s conclusion,

though, flows from its misunderstanding of the record.

Specifically, the court confuses the Disbursement Re-

quest form with the Photocopy Request form. A prisoner

requesting a photocopy must complete both forms, but

No. 11-3228 77

it is the Photocopy Request form, and not the Disburse-

ment Request form, which must include “detailed in-

structions as to what is to be copied.” But it was in the

Disbursement Request form and not the Photocopy

Request form that Ray described in excruciating detail

the purported Privileged Correspondence Receipt, stating:

TWO COPIES OF A CORRECTIONS CORPORA-

TION OF AMERICA PRIVILEGED CORRESPON-

DENCE RECEIPT FORM SIGNED BY CCA SO-

CIAL WORKER SMITH, REGARDING MY PLAC-

ING MY 974.06 MOTION IN HER HANDS

APRIL 27, 2004.

And Ray typed that detailed description of the content

of the purported Privileged Correspondence Receipt

form in the blank entitled: “Reason for Request.” The

Disbursement Request form also required prisoners to

state the “Individual Items Requested,” and here Ray

merely typed “2 Copies of CCA Form.” Then in the Photo-

copy Request form, Ray described the form simply as:

“2 copies of a CCA Mail Form Receipt/’Please’ send the

copies I have requested to me through the institutional

mail. Thank you.”

That Ray included such detail (including that the pur-

ported Privileged Correspondence Receipt form was

signed by Smith and stated that he placed the state court

motion in her hands on April 27, 2004), in the Disburse-

ment Request form when the form merely asked for

the “Reason for Request,” and not in the Photocopy

Request form, is significant for two reasons. First, and

as the district court found, there is no reason to

78 No. 11-3228

provide such detail in the Disbursement Request

which merely served to request a thirty-cent disburse-

ment for photocopying. Second, while the librarian

was responsible for reviewing the Photocopy Request

form to ensure it was filled out correctly and to screen

materials for copying for appropriateness, no similar

review of the Disbursement Request form was required;

rather, according to the library procedures (contained in

the record), the librarian’s responsibility was merely to

authorize the Disbursement Request form indicating

the correct amount charged and then route it appropri-

ately. Officer Nedbal and Librarian Martin’s testimony

at the evidentiary hearing confirmed these facts. And

Officer Nedbal, who approved the Disbursement

Request form, said he merely “glanced at” the “Reason

for Request.” Later, when the librarian screened the

document Ray submitted for copying, the librarian would

compare that document to the general description, i.e.,

“CCA Mail Form Receipt,” Ray put in the Photocopy

Request form. Moreover, as Librarian Martin further

testified, while she would merely be scanning the docu-

ment and description contained in the Photocopy

Request form, “[t]he person making the copies would

have to read that in more detail . . . .” Ray had previously

worked in the library, so he knew how the forms

were processed.

The court’s response to this is “the fact that

librarians were not required to affirmatively verify the

authenticity of documents to be copied does not create

a reasonable inference that the document was there-

fore a fake or nonexistent.” Opinion at 45. I agree. The

No. 11-3228 79

mere fact that a librarian was not required to verify the

authenticity of the document to be copied does not

create an inference that the document was therefore a

fake or nonexistent. But this fact does mean that the

form submitted for copying might not have been the

one described by Ray in the Disbursement Request form.

Then the question is whether the other evidence

allows for the reasonable inference that the Privileged

Correspondence Receipt form was nonexistent or fake.

And it does: Namely, the fact that Ray included the

extensive details of the content of the document to be

copied in the Disbursement Request form, but not in

the Photocopy Request form, creates a reasonable

inference that he did so to invent evidence to support

the inference that there had once been in existence a

Privileged Correspondence Request form signed by

Smith stating that he had given her a state post-conviction

motion for mailing in April 2004. This inference is even

stronger given that in the Photocopy Request form Ray

wrote “ ‘Please’ send the copies I have requested to

me through the institutional mail.” There was no reason

for Ray to state on the Photocopy Request form that

he wanted the form returned to him through the institu-

tional mail system, absent a premeditated plan to

create a paper trail to establish that the purported Privi-

leged Correspondence Request form existed and then

was “lost in the mail.” First, the Photocopy Request

form does not ask the prisoner to specify how he wants

the photocopied materials returned. Second, the evi-

dence creates a reasonable inference that the librarian

had, in the past, personally handed Ray his completed

80 No. 11-3228

copies (and thus Ray needed to specify that he wanted

the copies returned via institutional mail to avoid that

possibility). The librarian knew about Ray’s case and

testified “we did lots of copies for Mr. Ray.” Librarian

Martin also testified that Ray had personally handed

her copy requests in the past and that she usually

picked up the completed copies. Ray also testified that,

in the past when he had asked Librarian Martin for

copies, “she screen them then she gonna make—she gonna

make them, yes.” Third, Ray testified that once he got

his hands on the Privileged Correspondence Receipt

form, his first thought was to make a copy of the docu-

ment and after it was supposedly lost, he explained

how important the copy was. Yet, according to

the record, Ray gave Officer Nedbal the Privileged Cor-

respondence Receipt form, Disbursement Request

form, and Photocopy Request form on April 18, 2010,

which was a Sunday. Besides the fact that there is no

mail delivery on Sunday (and thus Ray did not immedi-

ately request a copy of it), Librarian Martin did not

work on Sundays and because she needed to screen the

copy requests, Ray’s paperwork would need to be

held until Monday when she returned. And Ray had

worked in the library and he testified at length about

some of the procedures related to copy requests, so he

knew full well how things would be processed.9 Thus

9

Besides working in the library and thus knowing the

process for making copies, Ray also testified that Librarian

Martin was not there on the day he brought the forms to the

(continued...)

No. 11-3228 81

under Ray’s version of things, he handed over

possession of this extremely crucial document to

Officer Nedbal so that it could be left sitting in a

basket behind the library desk, as opposed to handing it

personally to Librarian Martin and waiting for the copy

to be made and handed back to him. And then, even

though Ray recognized the importance of the purported

Privileged Correspondence Receipt form, he wrote on

the Photocopy Request form “ ‘Please’ send the copies

I have requested to me through the institutional mail.”

Given the importance Ray claimed for the purported

document, it is reasonable to infer that Ray took

the purported Privileged Correspondence Receipt form

to the library on a Sunday because he knew that

Librarian Martin was not there and couldn’t ask him

about the form 10 or have the copy made for him while he

waited; and that he requested the copies to be sent via

institutional mail so that he could claim it was lost in

the mail. These inferences are further strengthened

when Ray’s response to the purported missing Privi-

9

(...continued)

library—only Officer Nedbal was, and he put the paperwork

in a basket.

10

That Librarian Martin might talk to Ray about the copy

request if he handed it to her personally is reasonable to infer

given the interest she had taken in Ray’s case. She had called

Ray down to the library from his housing unit to show him

this court’s decision on “LexisNexis.” Another time, she had

printed off a “bio” and the Facebook page for Ray’s pro

bono attorney and had given them to Ray.

82 No. 11-3228

leged Correspondence Receipt form is considered: Ray

filed an Information Request form seeking informa-

tion about the supposed missing form, noting that

Nedbal signed the Disbursement Form and Photocopy

Request form “verifying that the document I placed in

his hands matched what I wrote on those forms.” Ray

later wrote the warden asking “for my original copy of

the CCA form to be found and returned to me as soon

as possible or be provided with a copy of the memo that

Mr. Lines sent to staff about this matter, so I could forward the

e-mail to my attorney, so he could prove that the copies alone

[sic] with the original copy was some how missed placed [sic] or

given to the wrong inmate.” (Emphasis added.) Taken

together, all of this evidence adds up to create a very

reasonable and natural inference that Ray had written

a detailed description in the Disbursement Request

form because he knew no one would review the detail

contained in that form and then he requested the copies

be returned through the prison mail system so that he

could feign their disappearance and later use the prison

forms as evidence that he had a Privileged Cor-

respondence Receipt form signed by Smith which

verified the purported mailing of the April 27, 2004

state post-conviction motion. This conclusion is not a

speculative leap, but rather is based on the reasonable

inferences flowing from the various pieces of record

evidence, which when put together form a pretty clear

mosaic showing what happened.

Moreover, it wasn’t just that Ray provided a detailed

description of the supposed content of the purported

Privileged Correspondence Receipt in the Disbursement

No. 11-3228 83

Request form. Also Ray’s strange request to have this

important form returned through the prison mail

system, and then its inexplicable disappearance, create

an inference that the form never existed. There are

several additional pieces of evidence which, when taken

together, further create a reasonable inference that there

was no Privileged Correspondence Receipt. In fact, the

totality of the evidence makes Ray’s entire story utterly

implausible. First, as the district court explained, Ray

had never mentioned the Privileged Correspondence

Receipt in any of his documentation until April 18,

2010. And that was only after this court had granted

his habeas petition on the merits, but remanded to the

district court for a determination on whether the peti-

tion was timely. Yet Ray had specifically referenced

the “Certificate of Service by Mail” form in his first pur-

ported letter to Smith on June 1, 2004, and in his “Motion

for Protective Order Staying And Abeying [sic] Peti-

tioner’s Petition for Writ of Habeas Corpus Filed

Pursuant to 28 U.S.C. § 2254,” which he filed with his

habeas petition on February 28, 2007. Ray even noted

in bold that he had attached a copy of the Certificate of

Service to his motion (and stated that it was signed by

Smith). Ray also attached copies of the three letters he

claims he sent to Smith asking her to confirm that she had

mailed his motion to the state court. The district court

aptly stated the absurdity of this: “Yet, he failed to even

reference the one document [the Privileged Correspon-

dence Receipt] which supposedly corroborated his

account that bore someone’s signature other than his

own.” The district court reasonably inferred from the

84 No. 11-3228

evidence that because Ray knew the importance of men-

tioning the Certificate of Service by Mail form in the

court filings, he surely would have also mentioned the

Privileged Correspondence Receipt if one had truly

existed.11

11

The court’s response: This evidence “is simply insufficient to

jump to the conclusion that the receipt must therefore not

exist.” Opinion at 46. But Ray’s failure to ever mention the

supposed Privileged Correspondence Receipt through years

of litigation and the fact that his first mention of the form

came only after this court held that his constitutional rights

had been violated, creates a very reasonable inference that

there was no such receipt in the first instance. This is not

jumping to conclusions but using inferential reasoning from

the evidence presented. See United States v. An Article of Device,

731 F.2d 1253, 1262 (7th Cir. 1984) (“[T]he reasoning process

normally begins with known facts which form the basis for

inferred facts from which further inferences can be drawn. So

long as the finder of fact is reasonably certain of a pre-

liminary inference, it is not unreasonable to use that inference

as the basis for further reasoning.”) (internal quotation omit-

ted); Wisconsin Memorial Park Co. v. C.I.R., 255 F.2d 751, 753

(7th Cir. 1958) (“Frequently the ultimate issue is resolved as

the result of drawing inferences from the evidence received

during the trial. Trust in inference is simply the belief that

if there is a firm basis for the starting point the derived judg-

ment is acceptable. The difference between speculation and

inference lies in the substantiality of the evidence constituting

the premise. Inductive reasoning claims the premises con-

stitute some evidence for the conclusions and in law we

speak in terms of the probability and likelihood that the

(continued...)

No. 11-3228 85

There is more, though. The district court also found

that Ray’s explanation for his failure to mention the

“Privileged Correspondence Receipt” form earlier is

inconsistent and not plausible. The district court

explained that Ray had “testified that another inmate

who was helping him had it in his possession when he

was transferred to a different institution, and it

wasn’t until later (he’s not sure when) that it was

returned to him.” And Ray claimed he did not under-

stand federal habeas law or the significance of the form,

but Ray was well-versed in legal proceedings. The

district court added that the fact that Ray “noted in

bold in a motion filed contemporaneously with his

petition that the ‘Certificate of Service’ was signed by

‘Tamara Smith,’ shows that he knew the importance of

a document signed by someone on the prison staff.” And

even if one accepts his testimony that he allowed one of

his inmate helpers who was later transferred to a

different institution to retain possession of such a

crucial document, nothing prevented him from at

least mentioning it in one of his previous filings.

Ray’s failure to mention the Privileged Correspondence

Receipt form until after this court remanded the case to

11

(...continued)

premises buttress the conclusions.”) The court’s response

also wrongly considers this fact in isolation, without reference

to the several other facts which similarly created an infer-

ence that there never was a Privileged Correspondence Receipt.

86 No. 11-3228

the district court is extremely suspect. But Ray’s excuse

for not mentioning it earlier presents an even greater

implausibility in Ray’s entire story than the district

court recognized. Here, the district court misread the

record when it stated that Ray had testified “that

another inmate who was helping him had it in his pos-

session when he was transferred to a different

institution, and it wasn’t until later (he’s not sure

when) that it was returned to him.” Actually, Ray

testified on direct examination, under questioning

from his own attorney, that once the Seventh Circuit’s

opinion came down in April, he “started trying to

reach out trying to find the inmate who was transferred

from the institution with my receipt.” Ray further

testified: “I was trying to get a copy for me and to mail

you the original.” So, even though Ray was now repre-

sented by very competent attorneys, we are supposed

to believe that after reading the April 1, 2010 opinion,

he took it upon himself to track down the form. Ray’s

attorney even acknowledged he was out of the loop,

stating in his closing argument that “quite frankly, when

I found out what had happened [with the Privileged

Correspondence Receipt] I was livid because I would

have driven to Wisconsin myself to pick that form up

and provide it to the Court.” 1 2

12

The court concludes that it is not unusual that Ray would

attempt to track down the Privileged Correspondence Receipt

himself, rather than elicit help from his attorney, stating

“attorney-client communication is neither quick nor easy

(continued...)

No. 11-3228 87

The absurdity is even more obvious when the timing

of everything is considered. Ray testified that the

prisoner was transferred to another prison with the

Privileged Correspondence Receipt form while helping

Ray with his habeas petition, and that he (Ray) did not

have the Privileged Correspondence Receipt at the time

that he filed his habeas petition. Ray filed the habeas

petition in February 2007, which means that under

Ray’s version of events, he lost possession of the form

sometime before February 27, 2007. It was April of

2010—more than three years later—when Ray “started

trying to reach out trying to find the inmate.” Even if

Ray began that search immediately (Thursday, April 1,

2010), that would have given Ray only 18 days to get

the Privileged Correspondence Receipt back, since

Ray supposedly dropped it off for copying on Sunday,

12

(...continued)

when the client is in prison and can be transferred at any

time with little notice if any to the attorney, further delaying

communication.” Opinion at 46. That explanation might make

sense if Ray were attempting to gather evidence located

within the same prison. But, as noted above, Ray needed to

track down a prisoner who had been transferred to another

prison more than three years previously. If communications

between a prisoner and his attorney are neither quick nor

easy, as the court infers, it is entirely reasonable to infer that

an overly eager prisoner would solicit help from his attorney

to track down a prisoner in another unknown prison (also

subject to a transfer to a new prison), because communica-

tions between such prisoners would be even slower and more

difficult.

88 No. 11-3228

April 18, 2010. Within those eighteen days, then, we are

supposed to believe that Ray was first able to track

down the other prisoner, even though that prisoner

had been transferred more than three years previ-

ously. That by itself would be a challenge given that in

the two years surrounding Ray’s litigation, Ray himself

was transferred to five different prisons.1 3 And

remember Ray was the one “reaching out”—he didn’t say

that he asked his top-notch attorneys for help, and if

his attorneys were the ones tracking down the former

prisoner, they never would have suggested that the

form be mailed to Ray who was still in prison. Then

Ray would have us believe that he was able to communi-

cate with that prisoner; and that that prisoner still had

a copy of his Privileged Correspondence Receipt from

more than three years ago. And we are to further believe

that that prisoner was able to send the document to

Ray—leaving one prison and thus undergoing the delay

caused by any screening procedures—and then be

received at Ray’s prison, clear screening and be

delivered to Ray. All of this in eighteen days, which

13

In April 2004, Ray was transferred from Diamondback to

Green Bay and then in May 2005 from Green Bay to Dodge;

followed by a transfer from Dodge to Columbia and then in

February 2006, from Columbia to New Lisbon. Other

than Diamondback, the other prisons were all located in

Wisconsin.

No. 11-3228 89

included three weekends. 1 4 And then the prison conve-

niently lost it! This story is utterly unbelievable.

f. Ray’s knowledge of habeas law.

The final aspect of the district court’s reasoning that

the court attacks is the district court’s finding that

Ray’s assertion that he did not understand the law gov-

erning habeas corpus is not plausible. The court reasons

that there was no evidence to support the district

court’s branding Ray a sophisticated prison litigant.

14

The court admits that this conclusion is “not without

force,” but then says that “unfortunately for the state, it did not

actually produce any evidence to support it.” Opinion at 46.

However, this conclusion is proven by Ray’s testimony. Specifi-

cally, as detailed above, Ray testified that once the Seventh

Circuit’s opinion came down in April, he “started trying to

reach out trying to find the inmate who was transferred from

the institution with my receipt.” Thus, according to Ray’s

own testimony, he neither had the purported Privileged

Correspondence Receipt form on April 1, nor knew the

location of the prisoner who supposedly had it. And then

Ray claimed he sent that form for copying on Sunday, April 18,

2010. Thus, under Ray’s own version of events, as he testified

to at the evidentiary hearing, the Privileged Correspondence

Receipt form was retrieved within eighteen days. It is more

than reasonable to infer from the sheer implausibility of this

timing that Ray made the whole thing up, especially in light

of the delay and difficulty prisoners face when trying to com-

municate with their own attorneys, as the court itself infers.

See Opinion at 46.

90 No. 11-3228

Opinion at 50. The court first criticizes the district

court’s statement that Ray had two or three boxes of

legal materials when he was at Diamondback. The court

then rhetorically asks: “Were these small shoe boxes

or large moving boxes? Were they filled with distinct

documents or multiple drafts or copies of only a

handful unique ones?” before concluding “[t]he record

does not say.” Opinion at 47.

The court, though, gives short shrift to the district

court’s other reason for rejecting Ray’s claim that he did

not understand the law governing habeas corpus. Ray

had testified before the district court that when he

wrote the state court on October 4, 2006, to inquire on

the status of the post-conviction motion, he knew

nothing about federal habeas law and had talked to no

one about it. The district court explained that “Ray’s

initial filing in the district court came less than six

months after he claims he first became aware that his

original state post-conviction motion was not filed in

state court and that filing demonstrates his ‘detailed

knowledge of not only the one-year limitation period

for federal habeas petitions, but also the mailbox rule

and the rules governing tolling of the one-year period.’ ”

In fact, though, the record is even more damning

than what the district court found. While Ray filed his

habeas petition in February 2007, Ray dated the signa-

ture line of the pro se Petition for Protective Order

Staying and Abeying (sic) Petitioner’s Writ of Habeas

Corpus, which accompanied his habeas petition, Novem-

ber 27. (And since Ray filed the Petition in Febru-

No. 11-3228 91

ary 2007, November 27 must be November 27, 2006.)

Ray signed that document less than two months after

he sent the letter to the state court inquiring about his

supposed missing post-conviction motion. In Ray’s

pro se Petition for Protective Order Staying and Abeying

(sic) Petitioner’s Writ of Habeas Corpus, Ray demon-

strated his extensive knowledge of habeas law, including

the one-year statute of limitations, the mailbox rule, and

tolling principles. (Attached as Appendix E is that pro se

petition so that there is no question of the depth of

Ray’s knowledge.) Thus Ray clearly knew the importance

of showing that he had given the state post-convic-

tion motion to Smith for mailing on April 27, 2004, around

the time he wrote to the Wisconsin state court. Given

Ray’s detailed knowledge of habeas law in Novem-

ber 2006, it is reasonable to infer that Ray had similarly

detailed knowledge in October 2006, at the time he

wrote the state court to supposedly inquire about the

status of his state court petition.1 5

15

The court states that “[i]t is not implausible that Ray would

obtain a working knowledge of habeas in two months,

especially after the need for such knowledge took on in-

creased urgency when he learned that his state motion was

never filed.” Opinion at 48. While it might be plausible that

Ray obtained working knowledge of habeas law in two

months, it is equally plausible to infer that Ray had that knowl-

edge in October of 2006 when he wrote the letter to the

state court. And given the totality of the evidence in this case

indicating that Ray concocted the entire story about giving

the state post-conviction motion to Smith, this inference

was more than reasonable.

92 No. 11-3228

4. The state’s theory that Ray manufactured evi-

dence.

The court’s last main rationale for rejecting the district

court’s factual findings seems to be its view that the

only way to find Ray’s testimony not credible is to

believe that Ray “concoct[ed] a sophisticated scheme in

October 2006 to assert a mailbox rule claim and avert

AEDPA’s one-year time bar.” Opinion at 48. The court

reiterates that view later, stating: “The state’s argument

requires us to believe that Ray knew in 2004 that the

mailbox rule would apply to a section 974.06 post-con-

viction motion filed in Wisconsin, even when the motion

is not received by the state court—issues that we

decide today as a matter of first impression.” Opinion

at 50.

The state’s theory requires nothing of the sort. Rather,

all we need to believe is that on October 4, 2006, Ray

knew that he could not pursue habeas relief unless he

had given a state post-conviction motion to a prison

official within the one-year statute of limitations.1 6 And

16

There was also no need for Ray to foresee this court’s holding

that the mailbox rule applied to a state post-conviction

motion because Ray wasn’t relying on that theory but on the

theory of equitable tolling. In this regard, the court is also

wrong to say: “But Ray does not argue that he diligently

followed up with the state court during the two years that

passed from the time he allegedly gave Ms. Smith his motion

to the time he filed his second, supplemental motion.” Opinion

at 51. Actually, though, Ray did argue that he had been dili-

(continued...)

No. 11-3228 93

Ray undisputedly had that knowledge on November 27,

because that is the date on the signature line of his

signed pro se “Motion for Protective Order Staying And

Abeying [sic] Petitioner’s Petition for Writ of Habeas

Corpus Filed Pursuant to 28 U.S.C. § 2254.” 1 7 Everything

else could have easily been back-filled: Ray could have

created the letters he claimed to have mailed to Smith, as

16

(...continued)

gent. In the affidavit he filed along with his pro se habeas

petition, Ray stressed that he had written Smith on June 1, 2004,

September 9, 2004, and June 15, 2005, and then again after he

learned his state court motion had not been filed; he also

added that he had then also written the prison warden. Ray

then concluded that he “need only show that an ‘extra-

ordinary circumstances’ (sic) beyond control of prisoner for

application of equitable tolling to obtain the necessary

federal habeas review and he demonstrated due diligence in

trying to rectify the matter.” It was only after counsel was

appointed that the theory of equitable tolling was abandoned.

But equitable tolling was Ray’s theory back in October 2006

when he sent the letter to the state court inquiring on the status

of his post-conviction motion. This also explains why Ray

would bother to send a letter to Smith and the warden after

he “learned” that the state court had not received his let-

ter—to bolster his claim of diligence.

17

In support of his Motion for Protective Order, Ray also

submitted an undated affidavit, which argued that there

were “extraordinary circumstances” beyond control of prisoner

for application of equitable tolling to obtain the neces-

sary federal habeas review. This affidavit also illustrated

Ray’s knowledge of the tolling principle.

94 No. 11-3228

well as the Certificate of Service, and then merely dated

them 2004. Similarly, it wouldn’t take much to come

up with the idea of pretending the prison lost a

“Privileged Correspondence Receipt” during copying.

Moreover, contrary to the court’s conclusion that

“without evidence there is no basis for believing” Ray

concocted a scheme to avoid the statute of limitations,

there is ample circumstantial evidence that Ray

invented the April 27, 2004, mailing and the “loss” of the

“Privileged Correspondence Receipt.” Much of this

evidence was discussed above. But there is still more.

For instance, the only document Ray had notarized was

the October 4, 2006, letter he sent to the Wisconsin

state court inquiring on the status of the motion he sup-

posedly gave Smith in April 2004. When asked why

he notarized the letter, he said “Because it’s a court docu-

ment—it’s going to the court. It’s like a court document.”

But this was merely a letter and he wanted it notarized.

Yet he didn’t attempt to have the state post-conviction

motion notarized. His explanation makes no sense and

the existence of the notary seal on the October 4, 2006

letter to the Wisconsin court shows that Ray was com-

pletely aware of the significance of that letter and this

supports the factual finding that Ray manufactured

documentation to support a non-existent state post-con-

viction motion.

Additionally, the district court reasoned that Ray’s

lack of diligence in following up with the state court

clerk about the post-conviction motion he purported to

file in April 2004, until October of 2006, also supports

No. 11-3228 95

the idea that Ray made up the supposed April 27, 2004,

motion. I agree. Had Ray truly filed a motion with

the state court in April 2004, he would not have waited

more than two years to inquire on its status. See Allen,

471 F.3d at 1198 (“The district court may take into

account any and all relevant circumstances, including

any lack of diligence on the part of Allen in fol-

lowing up in a manner that would be expected of a rea-

sonable person in his circumstances, in deciding

whether the notice was delivered to the prison authori-

ties.”).18 Ray tried to explain away his lack of diligence

by saying that he was told by other prisoners not to

bother the court. But as the district court also

aptly noted, at the very least Ray would have had to

cont

This text is long and has been trimmed here. Open the source document for the complete record.