United States Court of Appeals For the Seventh Circuit
Criminal Procedure — habeas corpus
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.
“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 petitioner 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. 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 conjecture 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.”
Reversed and Remanded.
Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Williams, J.