Petition for Writ of Certiorari — Ronnie L. Famous, Petitioner v. Larry Fuchs, Warden

Supreme Court briefNov 14, 2022

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No. 19-3227

Ronnie L. Famous,

Petitioner-Appellant,

Larry Fuchs, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:10-cv-00707 — William C. Griesbach, Judge.

Argued September 29,2021 — Decided June 29,2022

Before Easterbrook, Ripple, and St. Eve, Circuit Judges.

Ripple, Circuit Judge. In 1998, in Wisconsin state court, a

jury convicted Ronnie Famous of four counts of first-degree

sexual assault of a child and one count of exposing a child to

harmful material. The court sentenced him to 168 years of

confinement. Mr. Famous then challenged his convictions on

direct appeal. In 2001, the Wisconsin Court of Appeals

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No. 19-3227

- affirmed his convictions, and the Wisconsin Supreme Court

denied relief on November 27, 2001.1

Mr. Famous did not file a petition for certiorari in the

Supreme Court of the United States. The one-year statute of

limitations period under the Antiterrorism and Effective

Death Penalty Act ("AEDPA") therefore began to run on

February 25,2002, the date on which the time to file a petition

expired.2Mr. Famous failed to file a federal petition for habeas

corpus by the one-year deadline. When he finally filed his

petition on August 17, 2010, the district court dismissed it as

untimely, rejecting Mr. Famous's arguments that he was

entitled to the defenses of statutory and equitable estoppel.

We now affirm the judgment of the district court. The

court did not abuse its discretion in denying Mr. Famous the

defense of statutory estoppel. Mr. Famous failed to set forth

sufficient information to raise statutory estoppel to the State's

statute of limitations defense. Indeed, he failed to provide

even the information reasonably available to him. Given the

laconic nature of his submission, the district court also did not

abuse its discretion in denying Mr. Famous's request to take

further discovery on that issue.

The district court also did not abuse its discretion in reject

ing the defense of equitable tolling. The court did not clearly

err in concluding that, even excluding the period when his

appellate attorney allegedly retained his file, Mr. Famous still

had not filed his petition in a timely manner. The district

1 R.65 at 3.

2 See Sup. Ct. R. 13.1 (setting forth the ninety-day period for filing a peti

tion for certiorari in the Supreme Court of the United States).

No. 19-3227

court's decision that Mr. Famous's chronic mental illness did

not impede a timely filing also is supported by the record and

therefore is not clearly erroneous.

BACKGROUND

We begin-by setting out, in broad strokes, the legal land

scape and essential facts of the situation before us.

AEDPA imposes a one-year statute of limitations period

on habeas petitioners in custody pursuant to a state-court

judgment. 28 U.S.C. § 2244(d)(1). But the one-year statute of

limitations is tolled if the petitioner applies for state

postconviction relief or for other collateral review of the

judgment. § 2244(d)(2). Moreover, the statute of limitations

does not run if an "impediment to filing an application

created by State action in violation of the Constitution or laws

of the United States ... prevented [the petitioner] from filing."

§ 2244(d)(1)(B). Additionally, the doctrine of equitable tolling

also may apply to a habeas petition if the petitioner, here

Mr. Famous, demonstrates that he pursued his rights

diligently and that some extraordinary circumstance

nevertheless prevented him from timely filing. Socha v.

Boughton, 763 F.3d 674, 683 (7th Cir. 2014).

As we noted earlier, Mr. Famous's one-year statute of

limitations period under AEDPA began running on February

25, 2002. He therefore had until February 25, 2003, to file a

federal habeas petition. He did not file a petition in federal

3 See 28 U.S.C. § 2244(d)(1) ("A 1-year period of limitation shall apply

The limitation period shall run from the latest of—(A) the date on which

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No. 19-3227

court until August 17, 2010. He recognizes that he did not file

his petition by the statutory deadline but asserts that the

period should be tolled.

We now review the events between the denial of his direct

appeal from his state conviction and the filing of his federal

habeas petition in August 2010 that Mr. Famous claims affect

his filing deadline.

After the Wisconsin Supreme Court denied his request for

further direct review in November 2001, Mr. Famous's appel

late attorney retained his legal case file until June 2005. The

record reveals that, during this time, Mr. Famous sent four

letters to the attorney, asking for his file.4 On June 28, 2005,

Mr. Famous finally received his legal case file.5 He immedi

ately gave it to a jailhouse lawyer to help him prepare his ha

beas petition. The very next month, however, prison officials

confiscated Mr. Famous's file from the jailhouse lawyer when

they transferred that individual to a segregation unit. Mr. Fa

mous made several requests to prison authorities for his file,

but they did not return the material to him until April 30,

2007.6

the judgment became final by the conclusion of direct review or the expi

ration of the time for seeking such review[.]").

4 The letters are dated: February 12, 2002; June 16,2002; October 20, 2003;

November 27,2004. R.'53-l at 10,11,13,14.

5 R.53 at 19.

6 Id. at 19-20. Mr. Famous submitted letters and complaints to the prison,

which responded to him. The record indicates these letters and responses

were exchanged on these dates: October 15,2005; September 26, 2006; Oc

tober 3, 2006; October 13,2006. R.53-1 at 16-25.

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No. 19-3227

On June 18, 2007, Mr. Famous filed his first petition for

writ of habeas corpus with the Wisconsin Supreme Court, but

it was denied on August 14, 2007.7 After this denial, Mr. Fa

mous took no further action until June 2008. The record con

tains minimal information about this time. As we will discuss

later, the State asserts, and the district court agreed, that the

statute of limitations ran during this time; Mr. Famous main

tains that this period should be tolled because his severe men

tal illness prevented him from filing a petition in a timely

manner. 8

On June 16,2008, Mr. Famous attempted to file, in the Wis

consin circuit court, a second habeas petition, but was unsuc

cessful. Mr. Famous claims that a court clerk told him that he

needed to file additional papers with his petition before the

court would accept it.9 After doing as instructed, Mr. Famous

mailed the petition to a judge of that court on July 21, 2008.10

After some time had passed and he had failed to receive a re

sponse from the court, he withdrew the petition and filed it

7 The Wisconsin Court of Appeals noted in a 2009 decision, "WSCCA rec

ords indicate that in June 2007, Famous filed a petition for writ of habeas

corpus in the supreme court, which the court denied ex parte. We have no

information as to the substance of the petition or the basis for the denial."

R.50-4 at 3.

8 On appeal, Mr. Famous contends that he suffered a mental illness

throughout the entire period from February 2002 to August 2010. Appel

lant's Br. 22.

9 R.53-1 at 35-48.

10 R.53 at 23.

No. 19-3227

with the Wisconsin Court of Appeals on March 16, 2009.11

Mr. Famous's petition alleged that "his resentencing was ille

gal and unconstitutional, and that trial, postconviction, and

appellate counsel were ineffective for failing to address the

resentencing issue."12 The petition was denied on May 5,

2009.13

In its opinion denying Mr. Famous's petition, the Wiscon

sin Court of Appeals rejected his claims and directed him to

file a proper motion in the circuit court. The court noted that

Mr. Famous's resentencing was neither illegal nor unconsti

tutional.14 Next, the court quickly dispensed with several of

Mr. Famous's other arguments before turning to his assertion

that counsel's failure to address the resentencing issue had

denied him effective representation during every stage of

11 Id. at 23-24.

12 R.50-4 at 1-2.

13 The Wisconsin Court of Appeals recognized the difficulty in establish

ing the procedural history of this case. The court included this footnote in

their order:

"Famous' memorandum in support of his petition imparts little

procedural history, and he provides us with no records other

than the hearing transcripts from his 1998 sentencing and 2001

resentencing. We thus look to docket entries reported on the Wis

consin Circuit Court Access (WCCA) and Wisconsin Supreme

Court and Court of Appeals Access (WSCCA) websites, although

the docket entries provide little substantive data."

Id. at 2.

14 Mr. Famous was originally sentenced to life without parole but was

later resentenced to 168 years due to the improper application of a sen

tencing enhancement.

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No. 19-3227

trial, sentencing, and on appeal. The appellate court explained

that Mr. Famous must bring his ineffective assistance of trial

and postconviction counsel in the trial court either by a peti

tion for habeas corpus or by a motion under Wisconsin statute

§ 974.06.15 The court also addressed his claim that his appel

late counsel rendered ineffective assistance by failing to chal

lenge the resentencing issue. It noted that it had already con

cluded that his contention was not supported by law because

the failure to pursue a meritless course of action does not con

stitute deficient performance. After the denial, Mr. Famous

filed a petition for review with the Wisconsin Supreme Court,

but it was denied on August 17, 2009. His motion to recon

sider was also denied on September 3, 2009.

Mr. Famous took no further action until August 17, 2010,

when he filed his first petition for habeas corpus in federal

court. On October 28, 2010, he filed an amended petition and

a motion to stay his federal case so that he could pursue un

exhausted claims in state court.16The district court stayed the

15 Id. at 6-7.

16 The district court summarized his reasons for requesting the stay:

"Famous asserts that he failed to exhaust these claims for several

reasons. First, he states that he could not exhaust his claims be

cause his appellate counsel was ineffective. Famous indicates

that there was also delay caused by his appellate counsel's failure

to give him all of the files and documents promptly after his ap

peal concluded. Second, he contends that prison officials caused

a delay by confiscating his legal documents from the jail house

lawyer who was preparing documents for him inasmuch as he is

incompetent. Third, Famous asserts that he has very limited ac

cess to the law library. Finally, he reiterates that he was mentally

incompetent and unable to file his Wis. Stat. § 974.06 motion."

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No. 19-3227

federal case on January 31, 2011, to permit Mr. Famous to ex

haust state remedies.

After Mr. Famous exhausted his claims in state court pro

ceedings from 2013 to 2018, he filed a third amended habeas

petition in federal court, on February 13, 2019. The district

court screened the petition and ordered the State to respond.

On April 15, 2019, the State filed a motion to dismiss the peti

tion, asserting that it was untimely. Mr. Famous responded

with statutory and equitable tolling arguments. On October

10, 2019, the district court granted the State's motion to dis

miss. It concluded that Mr. Famous's petition was timebarred by AEDPA's one-year statute of limitations for filing a

habeas petition in 28 U.S.C. § 2244(d)(1)(A). Consequently, it

did not reach the merits of either of Mr. Famous's ineffective

assistance of counsel claims.

DISCUSSION

Our review of a district court's decision declining to apply

statutory or equitable estoppel is for abuse of discretion. See

Schmid v. McCauley, 825 F.3d 348, 350 (7th Cir. 2016) (citing

Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008)).17

R.22 at 3-4.

17 When a district court rules on the issue of equitable tolling and when

there is an obvious need for further record development, we have not ap

plied that deferential standard but have reviewed the matter de novo.

Schmid v. McCauley, 825 F.3d 348, 350 (7th Cir. 2016). For the reasons ex

plained later in the text, we do not think that such a situation is presented

here.

No. 19-3227

A. Statutory Tolling

We first address Mr. Famous's statutory tolling claim.

Mr. Famous submits that the prison law library failed to pro

vide him with a copy of the AEDPA statute and therefore he

was unaware of the one-year statute of limitations. He con

tends that by not providing him a copy of AEDPA's time lim

itations, the Green Bay Correctional Institution ("GBCI") pre

vented him from learning of the one-year limit and therefore

created an impediment under 28 U.S.C. § 2244(d)(1)(B). Mr.

Famous invites our attention to our decision in Estremera v.

United States, 724 F.3d 773, 776 (7th Cir. 2013). He submits that

the district court further abused its discretion in denying his

request for discovery to develop fully the factual circum

stances supporting his contention.

In rejecting this argument, the district court reasoned that

a petitioner's ignorance or misunderstanding of the law did

not constitute the extraordinary circumstances necessary for

equitable tolling. The State relies on the district court's ra

tionale. It further submits that the present case is not con

trolled by Estremera. In that case, the State points out, the pe

titioner alleged that he was in segregation and had no access

to the prison library during the entire period for which he

sought equitable tolling.

In Estremera, we held that "lack of library access can, in

principle, be an 'impediment' to the filing of a collateral

R.53 at 15 ("Because the GBCI law library did not provide a copy of

AEDPA's time limitations, which establishes the one-year period of limi

tation for filing of § 2254 petitions." [sic]).

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No. 19-3227

attack." Id. at 776.19 We joined two other federal circuits that

had reached the same conclusion. See id. at 111 (noting our

agreement with Egerton v. Cockrell, 334 F.3d 433, 438 (5th Cir.

2003), and Whalem/Hunt v. Early, 233 F.3d 1146,1148 (9th Cir.

2000) (en banc)). Like our sister circuits, however, we made

clear that whether a petitioner could invoke the statutory re

set provision depended on whether the petitioner could

demonstrate a need for access to the library. See id.

The district court correctly noted that, in general, a peti

tioner's lack of knowledge of governing legal rules does not

justify the invocation of statutory or equitable tolling. See Socha, 763 F.3d at 685; Arieta v. Battaglia, 461 F.3d 861, 867 (7th

Cir. 2006). Estremera, and its companions in other circuits, ar

ticulate the important qualifier to that general principle: The

State's creation or maintenance of an impediment to a peti

tioner's acquiring necessary information can excuse, under

extraordinary circumstances, legal ignorance that results

from that impediment.

Here, the district court did not analyze the present situa

tion through the lens of Estremera, but we cannot say that this

omission was fatal. Mr. Famous simply did not make an ade

quate showing that the library at GBCI had created an

19 Estremera v. United States, 724 F.3d 773, 776 (7th Cir. 2013) involved a

request for access to a prison library. Our case might well be characterized

as involving the adequacy of the prison's library resources. However, our

approval of Egerton v. Cockrell, 334 F.3d 433, 438 (5th Cir. 2003), a library

adequacy case and Whalem/Hunt v. Early, 233 F.3d 1146, 1147 (9th Cir.

2000) (en banc), also a library adequacy case, confirms that both accessi

bility and adequacy cases are subject to the same analysis. See Estremera,

724 F.3d at 777.

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No. 19-3227

impediment to his filing a timely petition. After Mr. Famous

filed his petition, the State raised in its response the statute of

limitations defense. Replying to the State's submission,

Mr. Famous simply stated that GBCI "did not provide a copy

of the AEDPA's time limitations."20 He further asked that he

be permitted to engage in discovery to show that the "law li

brary did not contain a copy of the AEDPA's time limitations

during [his] appeal process." 21

Even when we take into consideration his pro se status at

the time, Mr. Famous's terse allegation is insufficient to raise

the defense that an "impediment created by State action in vi

olation of the Constitution or laws of the United States" pre

vented his filing a petition in a timely manner.22 At the time

that he asserted this defense, Mr. Famous certainly could have

provided sufficient additional information that would have

assisted the district court in determining whether he had

faced a state-created impediment. But his reply lacks any such

information. He gave no description about the nature or ex

tent of his alleged deprivation. He left the district court to

guess as to whether he was complaining that the State did not

take the initiative in supplying him with such a copy, whether

20 R.53 at 15.

21 Id. at 16.

. 22 Like pro se complaints, pro se habeas petitions must be construed lib

erally. See Frazier v. Varga, 843 F.3d 258,262-63 (7th Cir. 2016) (citing Estelle

v. Gamble, 429 U.S. 97,106 (1976)). But even with this liberal construction,

pro se litigants still must offer an articulable basis for disturbing the dis

trict court's judgment. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.

2001).

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No. 19-3227

he ever asked for a copy, or whether the law library, although

making the statutory provision available for him to read,

simply did not provide a copy. He simply provides no infor

mation about his interaction with state employees at the

prison on this subject, assuming that there was some interac

tion.

Given the paucity of factual narrative as to information

that was within Mr. Famous's knowledge, the district court

was entitled to treat this allegation as legally insufficient to

sustain an assertion that the State had created a constitutional

impediment to a timely filing. Moreover, Mr. Famous's la

conic allegation, unaccompanied by information that the dis

trict court could reasonably expect to be within his

knowledge, did not, moreover, provide the district court with

sufficient information to permit it to make a reasoned judg

ment on the appropriateness of discovery or the permissible

scope of that discovery.24 Therefore, the district court did not

abuse its discretion by not applying statutory tolling.

23 Although Mr. Famous's petition was verified under oath, the reply,

submitted much later, was not. It therefore cannot constitute a sworn affi

davit. As we note in the text, moreover, such affidavit would be an insuf

ficient allegation of a state-created impediment to filing a timely petition.

24 "A habeas petitioner, unlike the usual civil litigant in federal court, is

not entitled to discovery as a matter of ordinary course." Bracy v. Gramley,

520 U.S. 899, 904 (1997). "Rule 6(a) [of the Rules Governing § 2254 Cases]

makes it clear that the scope and extent of such discovery is a matter con

fided to the discretion of the District Court." Id. at 909. To satisfy the two

requirements of the Rule 6(a) test, a petitioner must: "(1) make a colorable

claim showing that the underlying facts, if proven, constitute a constitu

tional violation; and (2) show 'good cause' for the discovery." Hubanks v.

Frank, 392 F.3d 926,933 (7th Cir. 2004). "'Good cause' exists when the facts

A/A /

No. 19-3227

Equitable Tolling

Mr. Famous also submits that his petition is not barred be

cause a combination of three factors entitles him to equitable

tolling. Specifically, Mr. Famous submits that several "ex

traordinary circumstances" required the application of equi

table tolling or at least an evidentiary hearing to explore the

underlying circumstances.

Mr. Famous first claims that he is entitled to equitable toll

ing because his appellate counsel retained his case file after

the Wisconsin Supreme Court denied his petition for review

on November 27,2001. Mr. Famous claims that he made many

attempts to obtain the file but did not receive it until June 28,

2005. He further states that, after he finally received the file

from his former counsel, he gave it to a so-called "jailhouse

lawyer" in July 2005 in an effort to seek assistance in filing his

petition. He then alleges that prison authorities confiscated

the file when they transferred the jailhouse lawyer to another

institution and that, despite his best efforts, he was unable to

retrieve" the file from authorities until April 2007. Finally,

Mr. Famous submits that his chronic mental health problems

justify the invocation of equitable tolling.

In its memorandum order dismissing Mr. Famous's peti

tion, the district court addressed each of Mr. Famous's con

tentions.

alleged, if fully developed, may entitle the petitioner to relief. The factual

allegations, however, must not be speculative or conclusory because dis

covery is not intended to be a fishing expedition." Higgason v. Lemmon,

6 F. App'x 433,436 (7th Cir. 2001) (cleaned up).

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No. 19-3227

With respect to the retention of the case file by appellate

counsel, the district court simply pointed out that, even as

suming the veracity of Mr. Famous's allegations, he still had

not established that he had diligently pursued his rights once

he was in possession of the file. Rather, the court simply re

marked that, here, such a retention, assuming that it had oc

curred, was not outcome-determinative because Mr. Famous

had not acted with reasonable diligence when he had posses

sion of the file. ;

Addressing Mr. Famous's turning the file over to the jailhouse lawyer, the court took the view that Mr. Famous had to

bear the responsibility for his loss of access because of that

inmate's subsequent transfer. The court did not address

whether Mr. Famous had made adequate efforts to retrieve

the file once it was seized by prison authorities.

Finally, after examining the medical records submitted by

Mr. Famous, the district court determined that, although

there was no question that Mr. Famous suffered from mental

illness (and suffered from such an illness even prior to his in

carceration), there was no evidence that he lacked the capacity

to address his legal rights during the period in question.

Because there was no evidence that Mr. Famous had acted

diligently even when he had possession of his file and because

the record did not support a finding that he was incapacitated

due to his mental illness, the district court concluded that the

invocation of equitable tolling was not appropriate.

We review the district court7 s decision not to apply equi

table estoppel for abuse of discretion. Mayberry v. Dittmann,

904 F.3d 525, 530 (7th Cir. 2018). In the course of our

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No. 19-3227

evaluation, we must accept the factual findings of the district

court unless they are clearly erroneous. 25

Although a district court's equitable decisions must be

governed by rules and precedents, it also must be sensitive in

applying those principles to hardships caused by unique and

unforeseen circumstances. As the Supreme Court noted in

Holland v. Florida, 560 U.S. 631, 650 (2010), "courts of equity

can and do draw upon decisions made in similar situations

for guidance. Such courts exercise judgment in light of prior

precedent, but with awareness of the fact that specific circum

stances, often hard to predict in advance, could warrant spe

cial treatment in an appropriate case." In Socha, we stressed

that this approach requires that a district court assess the to

tality of the circumstances facing the petitioner. 763 F.3d at

686.26

A petitioner is eligible for equitable tolling only when he

demonstrates that, although he pursued his rights diligently,

some "extraordinary circumstance" prevented his filing in a

timely manner. Id. at 683; see also Holland, 560 U.S. at 649. The

25 Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 324 (2015) ("Federal

Rule of Civil Procedure 52(a)(6) states that a court of appeals 'must not set

aside' a district court's 'findings of fact' unless they are 'clearly errone

ous.'") (cleaned up).

2^ Mr. Famous suggests that the district court did not view the circum

stances in their totality. See Appellant7s Br. 19. Because, with the exception

of Mr. Famous's mental condition, the situations at issue here occurred at

different times, the district court necessarily addressed each situation sep

arately. We do not believe that, on the facts of this case, the district court's

format evinces any lack of appreciation of the need to view the record as

a totality.

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No. 19-3227

petitioner has the burden to establish both requirements. Socha, 763 F.3d at 683.

In Socha, we held that failure to return a file to a client at'

the termination of representation, at least when the client

needed the file for further proceedings, is not the sort of "gar

den variety" attorney negligence incapable of supporting eq

uitable tolling. Id. at 686. But when a petitioner entrusts his

court papers to another prisoner, the petitioner continues to

bear the responsibility for any delay in filing. See Paige v.

United States, 171 F.3d 559,561 (8th Cir. 1999) ("No affirmative

misconduct on the prison's part lulled [the petitioner] into in

action."). Thus, Mr. Famous entrusted the jailhouse lawyer

"with his legal documents at his peril." United States v. Cicero,

214 F.3d 199, 205 (D.C. Cir. 2000) (finding no equitable tolling

was warranted where the petitioner gave his legal files to a

jailhouse lawyer whose placement in segregation resulted in

the loss of the files).

Like the district court, we assume that equitable tolling

might be available for the period when Mr. Famous alleged

that his appellate attorney had withheld his case file. How

ever, even indulging in the assumption that Mr. Famous did

not receive his file until June 2005, the record establishes that

he did not proceed with diligence when the file was within

his control. The court reasoned that, at bottom, Mr. Famous

simply had not acted diligently to initiate habeas proceedings

when he did have possession of his file.

Upon receipt of his file, Mr. Famous quickly gave it to a

jailhouse lawyer in July 2005 where it was then confiscated by

prison authorities. While we agree with the district court that

Mr. Famous must bear responsibility for the time the file was

in the hands of the jailhouse lawyer, we need not decide on

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No. 19-3227

this thin record whether the circumstances justified the State's

refusal to return the files once they were in the State's custody

and the State knew that Mr. Famous needed them. See gener

ally Cicero, 214 F.3d at 204 (noting that the petitioner in that

case had never asked prison officials to return the papers from

which he was separated during a lawful prison transfer). It is

sufficient to say that the district court was correct to hold that,

despite these problematic time periods, Mr. Famous still had

adequate time when he was in control of his file and did not

diligently pursue his legal rights.

Finally, Mr. Famous's contention that his mental illness

should excuse his delay is also insufficient. Mr. Famous in

vites our attention (as he did the district court's) to the chronic

mental illness that afflicted him throughout this period and,

indeed, earlier in his life. In the district court, he produced

medical documentation of his illness. The district court exam

ined this material and Mr. Famous's claim that he suffers from

"several severe disorders, including delusional disorder, par

anoid personality disorder, and depressive disorder, that

cause [him] to lose touch with reality." The court concluded

that the records did not support Mr. Famous's assertion that

his mental illness was sufficient to warrant equitable tolling

during the period when he had control of his files. The court

noted that, although the medical records established that

Mr. Famous had a "long [history] of psychotic symptoms and

delusional beliefs," it also recites that, in 2009, his thought

27 Following the return of his file from the jailhouse lawyer, Mr. Famous

remained in control of his file from 2007 to 2010 when he filed his federal

petition.

28 R.65 at 7.

APf- ft

No. 19-3227

processes were "well-organized" and that his functioning

was not "noticeably impaired."

At one point in its discussion of the psychiatric evidence,

the court recited that one clinician had remarked that Mr. Fa

mous "himself does not believe he has any type of mental

health issue." Read in context, however, it is clear that the

clinician made this statement to support the view that Mr. Fa

mous's failure to recognize his problem contributed to a poor

prognosis for improvement. Non-recognition by the patient is

a factor that makes "delusional disorders refractory to treatment." This subsidiary observation by the court therefore

has no support in the record and is clearly erroneous. But on

examination of the entirety of the district court's analysis of

the clinician evidence, it is clear that this misstep did not play

a fundamental role in the district court's assessment of the

record as to undermine its ultimate conclusion that "there

[was] no evidence that [Mr. Famous] was incapable of acting

upon his legal rights during the limitations period."32 A court

abuses its discretion "when its decision is premised on an in

correct legal principle or a clearly erroneous factual finding,

or when the record contains no evidence on which the court

rationally could have relied." Corp. Assets, Inc. v. Paloian,

368 F.3d 761, 767 (7th Cir. 2004). Here, the district court's de

cision was not premised on its misunderstanding of Mr.

29 id. at 8 (alteration in original) (citations omitted).

30 Id. (citing to R.53-1 at 27).

31 R.53-1 at 27.

32 R.65 at 8.

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Famous's prognosis, nor did it solely rely on its erroneous in

terpretation of the clinician's statement. We "can say 'with

fair assurance' that the judgment was not 'substantially

swayed by the error/" United States v. Robinson, 724 F.3d 878,

888 (7th Cir. 2013) (quoting Kotteakos v. United States, 328 U.S.

750, 765 (1946)). Instead, the district court looked at all of Mr.

Famous's submitted medical records and properly concluded

that none of them suggested he was incapable of filing a peti

tion over the more than eight-year time period. Indeed, the

same clinical evaluation that renders the poor prognosis for

delusional disorder also supports the district court's conclu

sion.

We have examined the medical reports submitted by

Mr. Famous and evaluated by the district court in the course

of making its decision. The determination of the district court

finds significant support in the record. Although the medical

documents do indicate that Mr. Famous suffers from a

chronic mental illness, the district court certainly was entitled

to conclude that his affliction did not impair his ability to file

a petition during the limitations period.

CONCLUSION

The judgment of the district court is affirmed.

AFFIRMED

33 The clinician noted the following about Mr. Famous's mental status:

"His thought process was well-organized and did not show signs of loose

associations ... or derailment that would be characteristic of thought dis

order/psychosis." R.53-1 at 26.

ft??- A

3$nttefr j&tates Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 28, 2020

Before

ILANA DIAMOND ROVNER, Circuit Judge

Mo. 19-3227

RONNIE L. FAMOUS,

Petitioner-Appellant,

SUE DeHAAN,

Respondent-Appellee.

Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 2:10-CV-00707-WCG

William C. Griesbach,

Judge.

ORDER

The district court dismissed as untimely Ronnie Famous's petition for a writ of

habeas corpus under 28 U.S.C. § 2254. After reviewing the district court's final order

and the record on appeal, we find that Famous has made a substantial showing of the

denial of his right to effective assistance of counsel under the Sixth Amendment.

See 28 U.S.C. § 2253(c)(2). The parties should address whether Famous's trial and

appellate counsel were ineffective for failing to investigate and present alibi-witness

testimony.

The parties also must address whether Famous is entitled to tolling of the oneyear deadline for the filing of his petition, or whether the petition was otherwise timely.

See Moore v. Battaglia, 476 F.3d 504 (7th Cir. 2007) (remanding for evidentiary hearing on

allegation that inadequate prison library amounted to state-created impediment to

filing); Holland v. Florida, 560 U.S. 631 (2010) (considering circumstances under which

attorney misconduct constitutes extraordinary circumstance warranting equitable

tolling); Davis v. Humphreys,

F.3d 497 (7th Cir. 2014) (concluding that mental

f\ff. 3

No. 19-3227

Page 2

incompetence can be basis for equitable tolling, and remanding for evidentiary hearing

to assess petitioner's abilities).

Accordingly, we GRANT Famous's request for a certificate of appealability.

Because the court would benefit from additional counseled briefing and oral argument,

we also sua sponte appoint counsel for Famous. An order designating counsel and

setting a briefing schedule will follow. Famous's December 2019 motion to vacate the

district court's judgment will be taken with the case.

nr?- &

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OP WISCONSIN

APPEAL MO. 2009 AP 649-W

U.S. DISTRICT

COURT

EASTERN

DISTRICT"*!

FTC ED

RONNIE FAMOUS

Petitioner,

2010 OCT 28 A ® 52

Case Mo. 1O-C-7O30NW.SANFIUPP0,CLERK

MAIL-REC'O

BYRAM BARTOW

Respondent.

NOTICE OF AMD MOTION FOR STAY AND ABEYANCE

To: Mr. J.B. VanUollen

Attorney General

Wisconsin Dept. Of Justice

P.O. Box 7857

Madison, WI 53707

NOTICE IS HEREBY GIVEN, that petitioner Ronnie Famous, moves

this court for a stay and to abet its decision on petitioners

writ of Habeas Corpus pending exhaustion. The grounds for this .

motion are:

1. Although petitioners enclosed First Amended Petition

contains both exhausted and unexhausted claims the petitioner

request that his mixed petition not be dismissed because

petitioner is seeking a stay and abeyance of the petition so that

the Federal Petition can be stayed while petitioner returns to

State Court to exhaust his unexhausted, claims.

2. The petitioner is filing the enclosed proposed Second

Amended Petition and Second proposed Amended Memorandum in

Support of petition, that temporarily deletes the un-exbausted

claims. Petitioner asks that the court file the Amended Petition,

conditional upon the court granting petitioners motion to stay

it while petitioner returns to State court to exhaust petitioners

un-exhausted claims. Petitioners agrees both to file his State

exhaustion petition and to return to Federal Court after

exhaustion is completed within 30 days or whatever other time

limit the court ma£ set; and upon returning to Federal Court

after completion of exhaustion petitioner will promptly submit

a third Amended Petition that will contain both the previously

exhausted claims in the Second Amended Petition which were

stayed, along with the newly exhausted claims.

3. Petitioner has been incarcerated since his conviction.

4. He is indigent and since his conviction no lawyer has been

appointed to represent the petitioner.

5. His law library services was very limited. He only .received

' 45 minutes once a week and he is toeing denied a legal loan.

6. Petitioners appellate counsel provided ineffective

FOR LEGAL assistance for not rasining the presented issues on

CORRESPONDENCE ONLY

-1-

0680 2 1 Case 2:10-cv-00707-WCG Filed 10/28/10 Page 1 of 2 Document 16

f\pp, c

direct appeal. There was also a delay.caused by appellate counsel ST

- failure to give petitioner all of the files and documents promptly

after the appeal was concluded.

7. Prison officals caused a delay when they confiscated all

of petitioners legal documents from a jail house lawyer named

Shaheed Madyun who was preparing petitioners State habeas' corpus

because petitioner was incompetent and unable at the time to

perpare his writ.

8. The trial clerk Rose Ann Lee and trial Court interfered

with and thwarted petitioners efforts to exhaust his claim

against his trial counsel when they sent petitioners writ of

habeas corpus back to him unfiled even after petitioner did as he

was instured by the clerk. They refused to accept petitioners

writ nor did they hold an evidentiary hearing.

9. Petitioner was mentally in competent at the time of his

earlier post conviction proceedings and his incompetency made him

unable to file his 974.06 motion in State Court. See State V.

Debra A.E. 188 wis. 2d 1 11 , 523 N.W. 2d 727, 736 (1 994), where

the court found the defendants incomoetency sufficient reason for

her failure to raise legal, issues at that time. Also at that time

petitioner met the test for incompetency that the Supreme Court

set .in Dusky V. United States 362 U.S. 402, 402 (1 960).

10. The petitioner is being denied a legal loan and therefore

can not send along his supporting Exhibits such as psychological

records Etc. See Exhibit 52 and petitioners motion for an order

that the State pay for legal expenses or grant petitioners legal

loan request, hi so see declaration in support of motion for an

order that State pay legal expenses.

11. In Rhines V. Weber, 124 S.Ct, 1528 (2005), the U.S. Supreme

Court upheld the discretion of the district court judge to order

stay and Abeyance as an alternative to a dismissal and here the

petitioner can show good cause for the failure to exhaust the

un-exhausted claims befor filing in federal Court. Also the

un-exhausted claims are potentially metitorious as required by

the Rhiners decision. Also see, e.g »t Kelly V. Small, 315 F.d

1063 (Sth Cir. 2003). Petitioners claims are meitorious because

they raise claims based on the violation of petitioners consti

tutional rights, and because the facts alleged in the petition if

taken as true, are sufficient to merit relief.

Any delay in exhausting petitioers claims is solely the result

of the facts alleged in his petition, memorandum and declaration,

and not the result of any intentionally dilatory (delaying)

litigation tactics.

Therefore pefTfioner request that this court grant his motion

for stay and Abeyance.

ate**'

day of October 2010.

Dated this

CC: File

Attorney General

Respectfully Submitted,

Ronnie Famous/Pro Se

*068021/WRC

P.O. Box 220

Winnebago, WI 54985

FOR LEGAL

CORRESPONDENCE ONLY

-2-

€680 2 1

Case 2:10-cv-00707-WCG Filed 10/28/10 Page 2 of 2 Document 16

flpp. c

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

RONNIE L. FAMOUS,

Petitioner,

Case No. 10-C-0707

BYRAN BARTOW

Respondent.

ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE AMENDED

PETITION (DOC. # 9), STRIKING SECOND AMENDED PETITION FOR WRIT OF

HABEAS CORPUS (DOC. # 13), GRANTING MOTION FOR STAY AND ABEYANCE

(DOC. # 16), DENYING AS MOOT MOTION FOR STAY AND ABEYANCE (DOC. # 3),

DENYING MOTION FOR AN ORDER THAT STATE PAY FOR LEGAL EXPENSE

OR GRANT LEGAL LOAN REQUEST (DOC. # 17), AND DENYING AS MOOT MOTION

FOR AN ORDER THAT STATE PAY FOR LEGAL EXPENSE OR GRANT LEGAL LOAN

REQUEST (DOC. #4)

On October 28, 2010, Ronnie Famous, filed an amended petition fora writ of

habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and

sentence were imposed in violation of the United States Constitution. Famous submits that

he was convicted following a jury trial in the Racine County Circuit Court of four counts of

first degree sexual assault of a child as a persistent repeater and one count of exposing a

child to harmful material as a repeater.

His petition states that he was sentenced on

December 4,1998, to life without parole and later resen.tenced to 168 years on January 21,

2000.

Famous is incarcerated at the Wisconsin Resource Center.

I. MOTION FOR STAY AND ABEYANCE

On August 17, 2010, Famous filed a habeas petition that did not comply with

Civil Local Rule 9(a)(1) (E.D. Wis.) requiring petitioners to file their requests for habeas

corpus relief on standard forms supplied by the Clerk of Court. In an August, 18, 2010,

Case 2:10-cv-00707-CNC

Filed 01/31/11

Page 1 of 5 Document 22

order, this court denied the initial petition and directed Famous to file an amended petition

on the standard forms. On October 28, 2010, Famous filed two amended habeas petitions

and a motion for stay and abeyance. The First includes five unexhausted claims that are

omitted from the Second Amended Petition. Famous’s Motion for Stay and Abeyance (Doc.

# 16), explains that his “First Amended Petition contains both exhausted and unexhausted

claims” and “requests] that his mixed petition not be dismissed because petitioner is

seeking a stay and abeyance...." He then goes on to advise that he “is filing the enclosed

proposed Second Amended Petition and Second proposed Amended Memorandum in

Support of petition that temporarily delete the un-exhausted claims. Petitioner asks that the

court file the Amended Petition, conditional upon the court granting petitioners [sic] motion

to stay it while petitioner returns to State court to exhaust petitioners [sic] un-exhausted

claims. . . . [A]nd upon returning to Federal Court after completion of exhaustion petitioner

will promptly submit a third Amended Petition that will contain both the previously exhausted

claims in the Second Amended Petition which were stayed, along with the newly exhausted

claims.” Mot. For Stay and Abeyance, p. 1. It is clear from this motion that Famous does

not desire to move forward on the Second Amended Petition, but filed it because he thought

he needed to do so to keep his case open. Obviously, Famous wants to proceed on the

petition that includes the exhausted and unexhuasted claims as his motion for stay and

abeyance makes clear. Because the court is accepting Famous’s First Amended Petition,

his motion for an extension of time to file an amended petition will be granted.

In Rhines v. Weber, the Supreme Court held that in certain circumstances

district courts may grant a stay and abeyance to habeas petitioners who have both

exhausted and unexhausted claims. 544 U.S. 269, 277 (2005). However, a stay and

-2-

Case 2:10-cv-00707-CNC

Filed 01/31/11

Page 2 of 5 Document 22

abeyance is appropriate only when “there was good cause for the petitioner’s failure to

exhaust his claims first in state court.” Id. Further, even if the court determines that there

was good cause for the failure to exhaust all claims first, “the district court would abuse its

discretion if it were to grant [petitioner] a stay when his unexhausted claims are plainly

meritless.” Id. Thus, under Rhines, Famous must demonstrate good cause for failing to

exhaust all claims timely, and the unexhausted claims must be meritorious. Id. See also

Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (“And, for nearly a decade, we have

informed the district courts that whenever good cause is shown and the claims are not

plainly meritless, stay and abeyance is the preferred course of action.")

In this case, Famous’s unexhausted claims include: ineffective assistance of

trial counsel relating to a Sixth Amendment violation of Famous’s right to represent himself

and due process violations related to his right to offer a defense and favorable testimony

at trial; ineffective assistance of appellate counsel relating to failure to address trial

counsel’s ineffectiveness and newly discovered evidence; and the trial court’s abuse of

discretion by impaneling an anonymous jury.

Famous asserts that he failed to exhaust these claims for several reasons.

First, he states that he could not exhaust his claims because his appellate counsel was

ineffective. Famous indicates that there was also delay caused by his appellate counsel’s

failure to give him all of the files and documents promptly after his appeal concluded.

Second, he contends that prison officials caused a delay by confiscating his legal

documents from the jail house lawyer who was preparing documents for him inasmuch as

he is incompetent. Third, Famous asserts that he has very limited access to the law library.

' Finally, he reiterates that he was mentally incompetent and unable to file his Wis. Stat. §

-3-

Case 2:10-cv-00707-CNC

Filed 01/31/11

Page 3 of 5

Document 22

ft/1/. 0

974.06 motion. Given this circuit’s preference for stay and abeyance, especially when

denial “will effectively end any chance at federal habeas review,” this court cannot say that

Famous fails to meet the Rhines standard. Assuming without finding that he was in fact

mentally incompetent and incapable of filing his Wis. Stat. § 974.06 motion until now, this

court cannot say that Famous’s ineffective assistance of counsel claims are meritless.

Consequently, his motion for stay and abeyance will be granted.

II. MOTION FOR AN ORDER THAT STATE PAY FOR LEGAL EXPENSE

OR GRANT PETITIONERS LEGAL LOAN REQUEST

On October, 28, 2010, Famous filed a motion asking this court to order the

Wisconsin Resource Center to pay his legal expense or grant his request for a legal loan.

The Wisconsin Department of Corrections legal loan provision provides:

DOC 309.51 Funds for legal correspondence and copying. (1)

Correspondence to courts, attorneys, parties in litigation, the

inmate complaint review system under ch. DOC 310 or the

parole board may not be denied due to lack of funds, except as

limited in this subsection. Inmates without sufficient funds in

their general account to pay for paper, photocopy work, or

postage may receive a loan from the institution where they

reside. No inmate may receive more than $200 annually under

this subsection, except that any amount of the debt the inmate

repays during the year may be advance to the inmate again

without counting against the $200 loan limit. The $200 loan

limit may be exceeded with the superintendent’s approval if the

inmate demonstrates an extraordinary need, such as a court

order requiring submission of specified documents. The

institution shall charge any amount advanced under this

subsection to the inmate’s general account for future

repayment. An inmate may be permitted to retain in the

inmate’s general account an amount of money specified, in

writing, by the bureau of adult institutions that is not subject to

repayment of the loan.

Wis. Admin. Code § DOC 309.51(1). Famous is responsible for managing his own legal

loan. The Seventh Circuit has confirmed that the DOC legal loan statute “is not intended

-4-

Case 2:10-cv-00707-CNC Filed 01/31/11

Page 4 of 5 Document 22

fiff- £

for the funding of prisoners’ suits.” Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir.

2003). In Lindell, the court explained,

the loans authorized by the statute are not ‘funds which are

disbursed or credited to an inmate’s account to be used as he

wishes’ but rather ‘simultaneous credits and debits ... for the

sole purpose of enabling prisoners to purchase ‘paper,

photocopy work, or postage’ on credit.’ And Lindell has ‘no

constitutional entitlement to subsidy,’ Lewis v. Sullivan, 279

F.3d 526, 528 (7th Cir. 2002), to prosecute a civil suit; like any

other civil litigant, he must decide which of his legal actions is

important enough to fund. Lucien v. DeTella, 141 F.3d 773,

774 (7th Cir. 1998). If he is able to convince Wisconsin to

extend him more credit for his legal endeavors, in apparent

violation of Wisconsin law, any debt arising from that extension

of credit will be a matter strictly between him and Wisconsin,

and not any business of the federal courts.

Id. Therefore

IT IS ORDERED that the motion for extension of time to file amended petition

(Doc. # 9) is granted and Famous’s Second Amended Petition for Writ of Habeas Corpus

(Doc. # 13) is stricken.

IT IS FURTHER ORDERED that the motion for stay and abeyance (Doc. #16)

is granted. Famous’s previously filed motion for stay and abeyance (Doc. # 3) is denied as

moot.

IT IS FURTHER ORDERED that the motion for an order that state pay for

legal expense or grant petitioner’s legal loan request (Doc. # 17) is denied. Famous's

previously filed motion for order (Doc. # 4) is denied as moot.

Dated at Milwaukee, Wisconsin, this 31st day of January, 2011.

BY THE COURT

Is! C. N. Clevert, Jr.

C. N. CLEVERT, JR.

CHIEF U.S. DISTRICT JUDGE

-5-

Case 2:10-cv-00707-CNC Filed 01/31/11

Page 5 of 5 Document 22

AO 450 (Kev. 5/85) Judgment in a Civil Case

United States District Court

EASTERN DISTRICT OF WISCONSIN

RONNIE L. FAMOUS,

Petitioner,

JUDGMENT IN A CIVIL CASE

Case No. 10-C-707

SUSAN NOVAK,

Respondent.

□

Jury Verdict. This action came before the Court for a trial by jury. The issues have been

tried and the jury has rendered its verdict

Decision by Court. This action came before the Court for consideration.

IT IS HEREBY ORDERED AND ADJUDGED that the petition is DENIED as

untimely and this action is DISMISSED. A certificate of appealability will be DENIED.

Approved:

s/ William C. Griesbach_________

William C. Griesbach, Chief Judge

United States District Court

Dated: October 10, 2019

STEPHEN C. DRIES

Clerk of Court

s/ Mara A. Corpus

(By) Deputy Clerk

Case 2:10-cv-00707-WCG Filed 10/10/19 Page 1 of 1 Document 66

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

RONNIE L. FAMOUS,

Petitioner,

Case No. 10-C-707

SUSAN NOVAK,

Respondent.

DECISION AND ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

Petitioner Ronnie L. Famous, who is currently incarcerated at Columbia Correctional

Institution, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that

his state court conviction and sentence were imposed in violation of the Constitution. In 1998,

Petitioner was convicted in Racine County Circuit Court of four counts of first-degree sexual assault

of a child and one count of exposing a child to harmful material. He was sentenced to 168 years of

confinement.. On August 17, 2010, Petitioner filed his petition for federal relief under 28 U.S.C.

§ 2254. The case was originally assigned to Judge Clevert, who granted Petitioner’s motion to stay

the case on January 31, 2011, so he could exhaust his state court remedies. Upon Judge Clevert’s

retirement, the case was reassigned on December 19,2018. OnFebruary 15,2019, the court lifted

the stay, screened the petition and ordered a response. On April 15, 2019, Respondent filed a

motion to dismiss the petition as untimely. For the reasons that follow, Respondent’s motion to

dismiss will be granted and the case will be dismissed.

fifP- £

Case 2:10-cv-00707-WCG Filed 10/10/19 Page 1 of 10 Document 65

BACKGROUND

The sexual assault charges against Petitioner were based upon the allegations of V.B., who

was ten years old at the time of the incident and eleven years old at the time of Petitioner’s trial.

The victim testified that, in May 1998, she and her family were at a house in which Petitioner and

others resided. She stated that when she went in Petitioner’s bedroom to try to calm her baby sister,

Petitioner entered the room with a television and VCR, barricaded the door with a dresser, showed

her a sexually explicit video, and sexually assaulted her. When the victim’s younger brothers

banged on the bedroom door, Petitioner removed the barricade and the victim went downstairs.

ANALYSIS

Respondent has filed a motion to dismiss the petition as untimely. As an initial matter,

Petitioner asserts that Respondent has waived the statute of limitations defense by not raising it

when the petition and motion for stay and abeyance were originally filed in 2010. But a respondent

to a habeas petition is not required to respond to the petition until after the court screens the petition

and orders a response. See Rule 4, Rules Governing § 2254 Cases (“If it plainly appears from the

face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district

court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition

is not dismissed, the judge must order the respondent to file an answer, motion, or other response

within a fixed time ....”). In this case, the court screened the petition on February 15, 2019, and

directed Respondent to either file an appropriate motion seeking dismissal or answer the petition

within 60 days. Respondent subsequently filed the instant motion tp dismiss on April 15, 2019.

In short, the court finds that Respondent has not waived the statute of limitations defense and will

consider the merits of the motion.

(iff- £

Case 2:10-cv-00707-WCG Filed 10/10/19 Page 2 of 10 Document 65

The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year statute

of limitations, for filing a habeas petition in federal court. A state prisoner seeking federal relief

under 28 U.S.C. § 2254 must generally file his petition within one year of “the date on which the

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).

Petitioner was convicted of the charges following a November 1998 jury trial, and he

subsequently pursued a direct appeal of his conviction. The Wisconsin Court of Appeals affirmed

his convictions in 2001, and the Wisconsin Supreme Court denied Petitioner’s petition for review

on November 27, 2001. Because Petitioner did not file a certiorari petition in the United States

Supreme Court, the one-year statute of limitations period began running on February 25,2002. As

a result, Petitioner had one year, until February 25, 2003, to file a federal habeas petition

challenging his conviction and confinement. Petitioner did not file his federal habeas petition until

August 17,2010, well after the one-year limitation period had run. Therefore, Petitioner’s federal

habeas petition is untimely.

Petitioner .asserts that his petition is not time-barred for three reasons: (1) Petitioner is

actually innocent; (2) the institutional law library does not maintain a copy of the AEDPA statutes

and he was unaware of the time limitations; and (3) a combination of ineffective assistance of

appellate counsel, Petitioner’s mental health issues, and prison conditions warrants equitable tolling.

The court will address each argument in turn.

A. Actual Innocence

Petitioner asserts that he can avoid his procedural default because he is actually innocent.

He has provided affidavits created in 2013 from his “alibi” witnesses—Lynette Famous, Petitioner’s

tiff* £

Case 2:10-cv-00707-WCG Filed 10/10/19 Page 3 of 10 Document 65

niece, and Rosie Kelly, an individual that resided in the same house as Petitioner. Lynette Famous

and Kelly assert that they would have testified at trial that Petitioner could not have barricaded Y.B.

into his bedroom with the television because Kelly, V.B., and V.B.’s siblings were watching the

television in the living room, but Petitioner’s trial counsel did not want them to testify. Petitioner

also discusses the October 2005 affidavit from Charles Famous, his father, and the November 2001

affidavit of Candice Streeter, who both allege that the victim told them in 1999 that Famous “did

not do anything to her.” Dkt. No. 53-1 at 2.

“The actual innocence gateway is narrow.” Gladney v. Pollard, 799 F.3d 889,895 (7th Cir.

2015). A petitioner’s procedural default can be excused only if he presents new and reliable

“evidence of innocence so strong that a court cannot have confidence in the outcome of the trial

unless the court is also satisfied that the trial was free from nonharmless constitutional error.”

Schlup v. Delo, 513 U.S. 298, 316 (1995). Petitioner must show that “in light of new evidence, it

is more likely than not that no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup, 513 U.S. at 327).

“[Bjecause an actual-innocence claim involves evidence the trial jury did not have before it, the

habeas court must assess “how reasonable jurors would react to the overall, newly supplemented

record.” Jones v. Calloway, 842 F.3d 454,461 (7th Cir. 2016) (internal quotation marks omitted).

Petitioner’s affiants do not have the credibility necessary to open the actual innocence

gateway, to McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (directing courts to consider “the

timing of the submission and the likely credibility of [a petitioner’s] affiants” in assessing the

reliability of actual innocence evidence). In evaluating reliability, the identity of the affiant and his

or her relationship to the petitioner matters. Indeed, the testimony of new witnesses who had “no

t\PP- P

Case 2:10-cv-00707-WCG Filed 10/10/19 Page 4 of 10. Document 65

evident motive to lie” stands in stark contrast to testimony “from inmates, suspects, or friends or

relations of the accused.” House, 547 U.S. at 552; see also Hayes v. Battaglia, 403 F.3d 935, 938

(7th Cir. 2005) (describing reliable evidence for the purpose of the actual innocence exception as

the testimony of “some non-relative” who could provide a corroborated alibi); Jackson v. Ramos,

No. 08 CV 7413, 2010 WL 4363204, at *12 (N.D. Ill. Oct. 27, 2010) (“The affidavits of two co

defendants and family members are not the type of ‘trustworthy eyewitness accounts’ envisioned

by Schlup.. . .”). Rather than being reliable and disinterested witnesses, the affiants are Petitioner s

family members, house mate, and friend who have a motivation to lie.

The district court may also “consider how the timing of the submission . . . bear[s] on the

probable reliability of that evidence.” House, 547 U.S. at 538; McQuiggin, 569 U.S. at 399 (noting

that “unexplained delay in presenting new evidence bears on the determination whether the

petitioner has made the requisite showing”). In this case, both affidavits of the alibi witnesses were

obtained fifteen years after the 1998 trial, and the affidavits of Petitioner’s father and Candice

Streeter were obtained two years afterthe victim allegedly told them that Petitioner did not rape her.

Petitioner has not explained the lateness of obtaining these affidavits. In short, Petitioner has not

met the high hurdle that he must in order to establish actual innocence. Therefore, the court cannot

excuse the untimeliness of the petition on this basis.

The state court postconviction proceedings offer further reasons for concluding Petitioner’s

showing falls short.

court’s

According to the Wisconsin Court of Appeals’ decision affirming the circuit

order denying Petitioner’s motion for postconviction relief based on ineffective assistance

of postconviction counsel, Petitioner failed to establish that he ever told his attorney of his “alibi

witnesses

.” Postconviction counsel testified that he filed a postconviction motion that resulted in

(Iff- E

Case 2:10-CV-00707-WCG Filed 10/10/19 Page 5 of 10 Document 65

resentencing, and then filed a direct appeal. Postconviction counsel stated that before filing the

motion, he discussed the case with Petitioner and retained an investigator. He recounted several

issues he discussed with Petitioner but testified he did not recall Petitioner telling him that his trial

attome

y had engaged in retaliatory conduct, told the fact witnesses that their testimony would only

harm Petitioner, or told him that the fact witnesses refused to testify. Had Petitioner told him any

of these things, postconviction counsel testified he would have investigated further. State

Famous, No . 2016AP1175, 2018 WI App 62, f 8, 384 Wis. 2d 270, 921 N.W.2d 17. Given this

history, there is no reason to excuse Petitioner’s procedural default on

the ground of actual

innocence.

B. Equitable Tolling

Petitioner argues that he is entitled to equitable tolling because His appellate counsel, prison

officials, the state courts, and his mental illness prevented him from timely filing his petition.

Equitable tolling is an “extraordinary remedy that is ‘rarely granted.’” Carpenter v. Douma, 840

F.3d867, 870 (7th Cir. 2016) (quoting Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013)). A

petitioner ‘is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely

filing,”’ Socha v.

Boughton, 763 F.3d 674, 683 (7th Cir. 2014) (quoting Holland v. Florida, 560

U S 631,649(2010)). The petitioner has the burden to establish both elements, and if the petitioner

fails to do so, “equitable tolling will not be applied.” Carpenter, 840 F.3d at 870 (citations

omitted).

Petitioner asserts that the limitations period should be tolled because the prison law library

failed to provide him with a copy of the AEDPA statute and he lacked knowledge of the limitations

MP’ ?

Case 2:10-cu-00707-WCG Filed 10/10/19 Page 6 of 10 Document 65

period as a result. He requests that he be allowed to complete discovery to fully develop the factual

record that would demonstrate that the law library did not give him a copy of the AEDPA statute

during his appeal process. A petitioner’s ignorance or misunderstanding of the law does not rise

to the level of extraordinary circumstances necessary for equitable tolling. See Carpenter, 840 F.3d

at 872 (holding that “lack of legal training” is not an extraordinary circumstance); see also Arrieta

v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006) (“Mistakes of law or ignorance of proper legal

procedures are not extraordinary circumstances warranting invocation of the doctrine of equitable

tolling.” (citation omitted)). Accordingly, this does not warrant applying the doctrine of equitable

tolling to his case, and Petitioner’s request to conduct discovery is denied.

Petitioner argues that his appellate counsel, Attorney Mark Rosen, prevented him from

preparing and filing a timely habeas petition. The Wisconsin Supreme Court denied Petitioner’s

petition for review on November 27, 2001. Although Petitioner claimed he made many attempts

to obtain his legal file from Rosen, Petitioner did not receive his case file until June 28, 2005.

Petitioner argues he was unable to file a habeas petition until he received the case file. Even if the

ADEPA deadline should have been tolled until Petitioner received his case file, Petitioner did not

file the petition until August 17,2010, over five years later. In short, Petitioner has not established

that he diligently pursued his legal rights once he received his case file. Accordingly, any delay in

receiving the file does not warrant equitable tolling.

Petitioner further asserts that the doctrine of equitable tolling applies because his history of

mental illness prevented him from filing a timely petition. He claims he suffers from several severe

disorders, including delusional disorder, paranoid personality disorder, and depressive disorder, that

cause Petitioner to lose touch with reality. Dkt. No. 53 at 21. The medical records submitted by

ftfA r

Case 2:10-cv-00707-WCG Filed 10/10/19 Page 7 of 10 Document 65

Petitioner do not support his claim of mental illness sufficient to invoke the doctrine of equitable

tolling. Although a November 14,2013 referral for on-site health services notes that Petitioner has

a “long [history] of psychotic symptoms and delusional beliefs,” Dkt. No. 64-1 at 17, a July 21,

2009 psychological services clinical contact note stated that Petitioner’s thought processes were

“well-organized and did not show signs of loose associations, neologisms, or derailment that would

be characteristic of thought disorder/psychosis,” that Petitioner’s “functioning is not noticeably

impaired,” and that Petitioner “himself does not believe he has any type of mental health issue.”

Dkt. No. 53-1 at 26-27. None of the medical records submitted suggest that Petitioner was

incapable of filing and preparing a habeas petition from 2002 through 2010. Stated differently,

there is no evidence that Petitioner was incapable of acting upon his legal rights during the

limitations period.

Petitioner also argues that his inability to obtain his legal papers from his jailhouse lawyer

when that inmate was transferred to another institution warrants equitable tolling. Petitioner

contends that he sent his legal materials to the inmate in July 2005 and did not receive them until

April 2007. It is well established that an inmate’s decision to enlist the help of a jailhouse lawyer

does not warrant equitable tolling because inmates do not have a constitutional right to the

assistance of counsel in habeas corpus proceedings. See Socha, 763 F.3d at 685; see also Sturdivant

v. Butler,No. 15-CV-9405,2016 WL 7324566, at *3 (N.D. Ill. Dec. 16,2016) (“[E]quitable tolling

is not warranted where a petitioner entrusts his legal papers to another inmate and, through a

housing transfer, loses access to them.”); United States v. Cicero, 214 F.3d 199, 205 (D.C. Cir.

2000) (“[The petitioner] entrusted [the jailhouse lawyer] with his legal documents at his peril.”);

Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999) (noting that equitable tolling is not

PPP. £

Case 2;10-cv-00707-WCG Filed 10/10/19 Page 8 of 10 Document 65

available to prisoner whose petition, prepared by an inmate in a different institution, was delayed

in the mail). As a result, he is not entitled to equitable tolling for his delay in obtaining his legal

material from his jailhouse lawyer. Petitioner has therefore failed to demonstrate that he is entitled

to equitable tolling.

CONCLUSION

Petitioner allowed the one-year statute of limitations period for federal habeas review to

lapse. The circumstances of this case do not allow him to take advantage of statutory or equitable

tolling.

Accordingly, Petitioner’s habeas petition is time-barred and must be dismissed.

Respondent’s motion to dismiss (Dkt. No. 49) is therefore GRANTED. Petitioner’s motion for

verification of mental health records (Dkt. No. 54) is GRANTED. Petitioner’s motions to dismiss

Respondent’s motion to dismiss and to decide Respondent’s motion to dismiss without the benefit

of Respondent’s reply brief (Dkt. Nos. 60, 61) are DENIED.

Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court must consider

whether to issue a certificate of appealability. A court may issue a certificate of appealability only

if the applicant makes a substantial showing of the denial of a constitutional right. See 28 U.S.C.

§ 2253(c)(2). The standard for making a “substantial showing” is whether “reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). The court

concludes that its decision is neither incorrect nor debatable amongjurists of reason. Accordingly,

a certificate of appealability will be denied.

fipp. t

Case 2:10-cv-00707-WCG Filed 10/10/19 Page 9 of 10 Document 65

The

action.

Clerk is directed to enter judgment denying the petition as untimely and dismissing the

A dissatisfied party may appeal this court’s decision to the Court of Appeals for the Seventh

Circuit by filing in this court a notice of appeal within 30 days of the entry of judgment . See Fed.

R. App. P. 3, 4.

In the event Petitioner decides to appeal, he should also request that the court of

appeals issue a certificate of appealability. Fed. R. App. P. 22(b).

SO ORDERED this 10th day of October, 2019.

s/ William C. Griesbach

William C. Griesbach, Chief Judge

United States District Court

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Case 2:10-cv-00707-WCG Filed 10/10/19 Page 10 of 10 Document 65

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Court cf Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 20, 2022

Before

Frank H. Easterbrook, Circuit Judge

Kenneth F. Ripple, Circuit Judge

Amy J. St. Eve, Circuit Judge

No. 19-3227

RONNIE L. FAMOUS,

Petitioner-Appellant,

Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 2:10-cv-00707

LARRY FUCHS, WARDEN,

Respondent-Appellee.

William C. Griesbach,

Judge.

ORDER

On consideration of the Petition for Panel Rehearing, filed by PetitionerAppellant on Ajugust 22, 2022, all members of the original panel have voted to DENY

the Petition for Panel Rehearing.

Accordingly, the Petition for Panel Rehearing is DENIED.

Hff- 6

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