00-2217 Johnson v. McCaughtry

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“Equitable tolling ‘excuses a timely filing when the plaintiff could not, despite the exercise of reasonable diligence, have discovered all the information he needed in order to be able to file his claim on time.’ Taliani, 189 F.3d at 597. Johnson argues that he was unfairly prejudiced when the state court directed him first to file in the state appellate court, which then directed him back to the state trial court. First, if we treated his second petition as if it had been properly filed (because Johnson filed it in the appellate court at the direction of the trial court), we could equitably toll the period subsequent to that filing. However, this argument ignores that, under then-current Wisconsin law, Johnson still improperly filed his first petition in the state trial court, in contravention of Knight. In any case, even if we were to toll the entire period from the time Johnson filed his second petition until the Wisconsin Supreme denied review, he would still have filed his federal habeas petition 21 days too late. Alternatively, we could treat Johnson as if he had properly filed his first petition, and the trial court improperly re-directed him to the appellate court, which correctly sent back to trial court pursuant to Rothering. It is only if we treat the first petition as if it were ‘properly filed’ and equitably toll all of the subsequent time that Johnson’s federal petition would be timely. However, we decline to do so.”

Affirmed.

DISSENTING OPINION: Evans, J. “I respectfully dissent. This case, as far as filing papers in the right state court at the right time is concerned, was gummed up from the get-go. So although Judge Manion’s majority opinion is quite persuasive, given the unique circumstances here I would accept Wisconsin’s confession of error, or find equitable tolling on our own, and give Johnson a chance to air his ineffective assistance of counsel claim on its merits in the district court.”

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Manion, J.