01-3261 Lloyd v. Vannatta

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“Although we have not yet ‘conclusively determined whether, or to what extent, the one-year deadline in § 2244(d)(1) is actually subject to the doctrine of equitable tolling,’ Johnson v. McCaughtry, 265 F.3d 559, 565 (7th Cir. 2001), cert. denied, 122 S. Ct. 1318 (2002), it is clear that the state’s alleged refusal here to provide Mr. Lloyd with a complete transcript does not justify equitable tolling.

“For equitable tolling to excuse an untimely filing, a prisoner must demonstrate that he ‘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.’ Id. Here, Mr. Lloyd was present at his trial and knew the basis on which he could have asserted prosecutorial misconduct; under these circumstances, a petitioner does not need a transcript to proceed with filing a habeas corpus petition. See Montgomery v. Meloy, 90 F.3d 1200, 1203-04 (7th Cir. 1996); see also McCleskey v. Zant, 499 U.S. 467, 500 (1991) (unavailability of document, the contents of which petitioner had at least constructive knowledge, did not prevent him from raising claim in his habeas petition); Donovan, 276 F.3d at 93 (petitioner who attended evidentiary hearing did not need transcript to file habeas petition). While we have not yet specifically addressed whether lack of a transcript would support equitable tolling, the other circuits to consider this issue have held that the unavailability of a transcript does not allow equitable tolling to excuse an otherwise untimely petition. See Donovan, 276 F.3d at 93 (delay in obtaining transcript no basis for equitable tolling of one-year limitation period); Gassler, 255 F.3d at 495 (same); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001) (lack of access to transcript does not preclude petitioner from commencing habeas corpus proceedings and does not warrant equitable tolling); Osborne v. Boone, No. 99-7015, 1999 WL 203523, at *2 (10th Cir. 1999) (unpublished order) (same, on denial of CA). We find these cases persuasive, and we join our sister circuits in holding that equitable tolling does not excuse Mr. Lloyd’s late filing simply because he was unable to obtain a complete trial transcript before he filed his § 2254 petition.”

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Sharp, J., Per Curiam.