00-0853 State of Wisconsin, ex rel. Eugene Nichols v. Litscher, Wis. Dept. of Corrections

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“While we do not mandate any particular procedure that litigants must follow, we note that both Nichols and the State agree that the factual question of the proper tolling date could be relatively easily resolved in most cases by the use of a certificate of service or affidavit of mailing. Such a certificate or affidavit may be desirable in that, as the State avers, many prisons do not have a general ‘log-in’ system that identifies the date on which a prisoner submits outgoing mail. A certificate or affidavit would create a rebuttable presumption that the prisoner had delivered his or her petition to the proper prison authorities on the particular day certified. We note, however, that a tolling rule will not excuse a pro se prisoner who ultimately fails to pay filing fees, address the petition properly, or otherwise comply with filing requirements.

“The tolling rule will ensure the proper treatment of pro se prisoners who file petitions for review. When pro se prisoners seek to file petitions, their control over the filing process is circumscribed by prison rules and procedures. Pro se prisoners’ choice in method of filing is no choice at all. They must rely on the ‘vagaries of the mail.’ Other petitioners may personally deliver their petitions to the clerk of court’s office, even at the last possible moment. We discern no convincing reason why pro se prisoners who act more promptly and otherwise comply with filing requirements should be placed at a disadvantage.”

Petition for habeas corpus is granted.

Petition for writ of habeas corpus; Bradley, J.

Attorneys:

For Appellant: Jeffrey O. Davis, Daniel J. La Fave, Milwaukee

For Respondent: James M. Freimuth, James E. Doyle, Madison