In the
United States Court of Appeals
For the Seventh Circuit
No. 08‐1641
ANDREW M. OBRIECHT,
Petitioner‐Appellant,
v.
BRIAN FOSTER, WARDEN,
Respondent‐Appellee.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:07‐cv‐00409‐bbc — Barbara B. Crabb, Judge.
ARGUED MAY 21, 2013 — DECIDED AUGUST 16, 2013
Before RIPPLE, WILLIAMS, and TINDER, Circuit Judges.
RIPPLE, Circuit Judge. Andrew Obriecht filed a petition for
a writ of habeas corpus in the United States District Court for
the Western District of Wisconsin. In the petition, he chal‐
lenged his 1999 convictions in Wisconsin state court.
Mr. Obriecht conceded that his petition was untimely, but
asked the district court to deem it timely under the doctrine of
equitable tolling. The district court declined to do so and
dismissed the petition as untimely, holding that Mr. Obriecht
2 No. 08‐1641
had not demonstrated his entitlement to equitable tolling.1
Because Mr. Obriecht cannot establish that an extraordinary
circumstance prevented his timely filing and that he has
pursued his rights diligently, we affirm the judgment of the
district court.2
I
BACKGROUND
In 1999, a jury convicted Mr. Obriecht of one count of
attempted second‐degree sexual assault of a child, five counts
of fourth‐degree sexual assault and one count of disorderly
conduct. He was sentenced to both imprisonment and proba‐
tion. He was released on probation pending his appeal, but
that probation was revoked when he violated its terms.
Accordingly, in August 2001, he was sentenced to seven years’
imprisonment for the probation revocation, to run consecu‐
tively with the seven years imposed earlier on account of his
1999 convictions.
Mr. Obriecht challenged his 1999 convictions on direct
appeal. The Wisconsin Court of Appeals affirmed his convic‐
tions, and the Wisconsin Supreme Court denied further
review. While this direct appeal was pending, Mr. Obriecht
obtained from the Wisconsin Court of Appeals an extension of
time to file a challenge to his probation revocation.
1
The district court’s jurisdiction was based on 28 U.S.C. § 2254.
2
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).
No. 08‐1641 3
On December 13, 2002, Mr. Obriecht filed a petition for a
writ of habeas corpus in the district court, which was denied
on January 23, 2003, because he had not yet exhausted his state
remedies. The district court informed Mr. Obriecht that he had
until March 17, 2003 (approximately sixty days) to seek post‐
conviction relief for his unexhausted claims to preserve the
timeliness of a federal habeas petition. The court warned him
specifically that “he needed to act quickly and that he risked
missing the statute of limitations if he continued to wait for a
lawyer to help him file his state court collateral attack.”3
In late December 2002, Mr. Obriecht retained attorney
Janelle Glasbrenner to file a state habeas petition. During
January 2003, Mr. Obriecht informed Glasbrenner of the March
17, 2003 deadline for filing for state post‐conviction relief.
Glasbrenner, erroneously believing that the extension granted
in the probation revocation matter also tolled the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) statute of limita‐
tions for the 1999 convictions, responded that he did not have
to worry about the deadline because it had been extended and
stated that she eventually would file his claim. After being
assured by Glasbrenner that his AEDPA deadline was ex‐
tended beyond March 17, Mr. Obriecht was placed in medical
segregation. Glasbrenner did not file any motions for state
court relief on or before March 17, 2003.
On April 2, 2003, Mr. Obriecht was transferred to the
Wisconsin Resource Center (“WRC”), a mental health facility.
On June 17, 2003, without having filed for any state relief,
3
R.14 at 5.
4 No. 08‐1641
Glasbrenner sought, and was granted, permission to withdraw
as Mr. Obriecht’s attorney.
Although still incarcerated in the WRC, Mr. Obriecht
managed his legal affairs during the remainder of 2003 through
June 2005. Having been adjudicated competent to proceed pro
se in November 2003, he was granted permission to represent
himself in another matter. He also filed briefs, motions and
habeas petitions in at least five other state court actions, timely
challenging other convictions. However, he did not file a state
collateral challenge to his 1999 convictions, which are the basis
for his habeas petition before this court, until June 20, 2005.
Once this state relief was denied, Mr. Obriecht filed a
petition for habeas corpus in the district court on July 26, 2007.
He conceded that his petition was untimely because he filed
for relief in state court more than two years after the March 17,
2003 deadline. Nevertheless, he asked the court to deem his
petition timely by equitably tolling the statute of limitations.
The district court declined to do so, holding that his explana‐
tion for why he was unable to timely file did not constitute an
extraordinary circumstance. The district court also determined
that Mr. Obriecht had not met his burden of establishing that
he had pursued his claims diligently. Mr. Obriecht timely
appealed.
II
DISCUSSION
Mr. Obriecht concedes that his federal habeas petition is
untimely. Therefore, the only issue before us is whether the
No. 08‐1641 5
district court erred in not applying the doctrine of equitable
tolling to his petition. “We review the decision to deny
equitable tolling for an abuse of discretion.” Simms v. Acevedo,
595 F.3d 774, 781 (7th Cir. 2010).
“AEDPA requires a federal habeas petition to be filed
within one year from ‘the date on which the [state] judgment
became final by the conclusion of direct review or the expira‐
tion of the time for seeking such review.’” Ray v. Clements, 700
F.3d 993, 1003 (7th Cir. 2012) (alteration in original) (quoting 28
U.S.C. § 2244(d)(1)(A)). “The one‐year statute of limitations can
be tolled, however, if the petitioner applies for ‘State
post‐conviction or other collateral review’ of the judgment.”
Price v. Pierce, 617 F.3d 947, 950 (7th Cir. 2010) (quoting 28
U.S.C. § 2244(d)(2)). Mr. Obriecht’s 1999 convictions became
final on March 17, 2002. Thus, he had until March 17, 2003, to
file for state post‐conviction or other collateral relief,4 which he
admits he did not do. Rather, he did not file for any state relief
until June 20, 2005. Given the more than two‐year difference
between when Mr. Obriecht’s convictions became final and his
state filing, Mr. Obriecht’s federal habeas petition is
time‐barred, absent the application of equitable tolling.
The Supreme Court has explained that “a petitioner is
entitled to equitable tolling only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraor‐
4
Mr. Obriecht attempted to file a federal habeas petition in December
2002, within AEDPA’s one‐year limitations period. However, this petition
was dismissed because he had failed to exhaust his state remedies. Thus,
Mr. Obriecht had to file for state relief or review of his claim before he could
file another federal habeas petition.
6 No. 08‐1641
dinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (internal
quotation marks omitted). Equitable tolling is an extraordinary
remedy and so “‘is rarely granted.’” Simms, 595 F.3d at 781
(quoting Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008)).
The petitioner seeking equitable tolling bears the burden of
establishing that it is warranted. Williams v. Buss, 538 F.3d 683,
685 (7th Cir. 2008).
A. Extraordinary Circumstance
Mr. Obriecht claims that two extraordinary circumstances
prevented him from meeting his AEDPA deadline: the incor‐
rect advice of his then‐attorney, Glasbrenner, and his mental
health. However, before the district court, Mr. Obriecht cited
the same reasons,5 but developed arguments only with regard
to Glasbrenner’s conduct.6 Accordingly, the district court
considered only whether Glasbrenner’s conduct constituted an
extraordinary circumstance.7 Because Mr. Obriecht failed to
develop any argument concerning his mental health as an
extraordinary circumstance in the district court, we do not
address it here, see Harper v. Vigilant Ins. Co., 433 F.3d 521, 528
(7th Cir. 2005) (finding waiver where party “failed to properly
5
R.3 at 14.
6
R.14 at 17‐18.
7
Id.
No. 08‐1641 7
present the issue to the district court”), and confine our inquiry
to Glasbrenner’s conduct.8
Under certain circumstances, attorney misconduct consti‐
tutes an extraordinary circumstance warranting equitable
tolling, such as when the attorney “violate[s] fundamental
canons of professional responsibility” by failing to communi‐
cate with his client and failing to perform necessary research.
8
We recognize that in certain cases, confinement in medical segregation
that prevents a petitioner from communicating with or monitoring his
attorney can constitute an extraordinary circumstance. Fisher v. Johnson, 174
F.3d 710, 715 (5th Cir. 1999); see also Espinoza‐Matthews v. California, 432 F.3d
1021, 1027‐28 (9th Cir. 2005) (noting that a petitioner’s placement in
administrative segregation can, under certain circumstances, constitute an
extraordinary circumstance). However, we do not consider that possibility
here for several reasons.
First, Mr. Obriecht has not asserted that his February placement in
medical segregation prevented him from meeting the March 17, 2003 filing
deadline. Instead, he claims that he relied on Glasbrenner’s erroneous
advice and so believed that the deadline was tolled. See R.14 at 13
(“Petitioner contends that he did not file his state court motion until June
2005 because Glasbrenner had advised him (incorrectly) that his deadline
for filing a federal habeas petition was tolled … .”); R.3 at 7 (“Obriecht
accepted [Glasbrenner’s] representation because he relied on her putative
expertise … .”). This cannot be reconciled with a claim that, had he not been
in medical segregation, he would have filed by March 17, 2003. Second, the
record in this case does not contain evidence concerning the date of his
entry into medical segregation, although he indicates that it was in February
2003 in his brief. The district court took judicial notice of an affidavit that
Mr. Obriecht filed in another matter where he averred that he entered
medical segregation at the WRC on March 19, 2003—two days after the
deadline. R.14 at 21. Given this discrepancy, the effect of Mr. Obriecht’s
placement in segregation is not before us.
8 No. 08‐1641
Holland, 130 S. Ct. at 2564‐65. However, the Supreme Court has
made clear that a “garden variety claim of attorney negligence”
or “excusable neglect” is insufficient. Id. at 2564 (internal
quotation marks omitted). The Court has held that garden
variety negligence includes “a simple miscalculation that leads
a lawyer to miss a filing deadline” and an attorney “fail[ing] to
file [a] petition on time and appear[ing] to [be] unaware of the
date on which the limitations period expire[s].” Id. (internal
quotation marks omitted); see also Griffith v. Rednour, 614 F.3d
328, 331 (7th Cir. 2010) (explaining that Holland provides that
“neither a garden variety claim of excusable neglect nor a
miscalculation about the time available for filing is an extraor‐
dinary circumstance” (internal quotation marks omitted)).
It is clear, therefore, that garden variety negligence includes
“simple legal mistake[s],” such as an attorney’s miscalculation
of the filing deadline or misunderstanding of the rules govern‐
ing the AEDPA deadline. Griffith, 614 F.3d at 331 (holding that
“this kind of negligence is not ‘extraordinary’ by any means”).
“A lawyer’s ineptitude,” such as his failure to meet a filing
deadline also is garden variety and “does not support equita‐
ble tolling.” Lee v. Cook Cnty., 635 F.3d 969, 972‐73 (7th Cir.
2011).
Mr. Obriecht submits that Glasbrenner’s conduct amounts
to gross misconduct rather than garden variety negligence. He
points to her failure to meet the March 17, 2003 deadline,
despite his informing her of it, and her erroneous advice, on
which he relied, that the deadline had been tolled based on the
extension granted in his probation revocation matter. He also
contends that Glasbrenner’s conduct was egregious because he
“had a breakdown of communication with his attorney during
No. 08‐1641 9
the relevant time period” and because Glasbrenner ultimately
withdrew from representation without filing a state petition.9
The district court determined that Mr. Obriecht had failed to
“show[] that Glasbrenner’s negligence was anything other than
garden variety.”10 We agree.
Mr. Obriecht has established only that Glasbrenner incor‐
rectly believed that his AEDPA deadline had been tolled. He
has not shown or alleged on appeal that this error was any‐
thing other than an unfortunate mistake. As our precedents
make clear, an attorney’s misunderstanding or miscalculation
of the AEDPA deadline alone does not constitute an extraordi‐
nary circumstance. See, e.g., Griffith, 614 F.3d at 331. We can
find no evidence of other conduct sufficient to constitute an
extraordinary circumstance. As the district court noted,11
Mr. Obriecht’s own evidence indicates that Glasbrenner
actively represented him before and after March 17, 2003, and
was preparing to meet what she incorrectly believed to be the
extended deadline. Indeed, she communicated with him and
9
Pet’r’s Br. 26.
10
R.14 at 15.
11
Id. (“[I]t is ludicrous for petitioner to suggest that, because Glasbrenner
did not file a state court petition, she must have done no work towards
preparing one. Petitioner’s suggestion is refuted by his own documents,
which show that in the six months after she was hired, Glasbrenner met
with petitioner in person on at least two occasions, obtained his transcripts
and reviewed them, developed legal theories supporting his claims, spoke
to his case worker, filed motions for extension on petitioner’s behalf and,
when petitioner’s competence came into question, filed a motion in the
circuit court for a competency determination.”).
10 No. 08‐1641
informed him of “claims she wished to raise in his state
collateral challenge.”12 Thus, the only reason apparent from the
record that Mr. Obriecht failed to meet the March 17, 2003
deadline appears to be Glasbrenner’s error, which “is not
‘extraordinary’” but rather is an “all too common” circum‐
stance. Griffith, 614 F.3d at 331.
B. Diligence
Because we hold that Mr. Obriecht has failed to establish
that an extraordinary circumstance prevented him from timely
filing, we conclude that he is not entitled to equitable tolling.
However, because the district court considered whether
Mr. Obriecht had pursued his rights with sufficient diligence,
we also address this matter.
“Equitable tolling excuses a timely filing when the [peti‐
tioner] 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.” Johnson v. McCaughtry, 265 F.3d
559, 565 (7th Cir. 2001) (internal quotation marks omitted); see
also Holland, 130 S. Ct. at 2565 (holding that a petitioner must
prove that he used “reasonable diligence” in pursuing his
claims (internal quotation marks omitted)). Thus, Mr. Obriecht
must demonstrate that during the more than two years
between his AEDPA deadline and the time he filed his petition
in state court, he was diligently pursuing his claims.
12
Pet’r’s Br. 10.
No. 08‐1641 11
“[M]ental illness tolls a statute of limitations only if the
illness in fact prevents the sufferer from managing his affairs
and thus from understanding his legal rights and acting upon
them.” Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996); see also
Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010) (holding
that petitioner seeking equitable tolling “must offer a particu‐
larized description of how her condition adversely affected her
capacity to function … in relationship to the pursuit of her
rights” (internal quotation marks omitted)).
The district court determined that Mr. Obriecht failed to
establish that he was diligent. Before the district court and now
on appeal, Mr. Obriecht offered only the conclusory statements
that he suffered from mental health problems and was incar‐
cerated in the WRC; he has not explained, or provided evi‐
dence to demonstrate, how these two facts actually impaired
his ability to pursue his claims.
Moreover, the record before us casts doubt on
Mr. Obriecht’s claim that these two circumstances prevented
him from filing in this case before June 2005. In November
2003, Mr. Obriecht was adjudicated competent to represent
himself in his probation revocation matter; he has not ex‐
plained how he could be competent to represent himself in that
proceeding but not competent to file a petition for relief. More
troubling, the district court took judicial notice of the fact that
in another case before the court, Mr. Obriecht submitted an
affidavit in which he stated that “[w]hen he did obtain access
to the library [at the WRC], … he ‘then became very occupied
with two other criminal appeals …,’ which prevented him
from pursuing his federal claims in state court until June 20,
12 No. 08‐1641
2005.”13 The State also has pointed out that Mr. Obriecht filed
direct and collateral appeals in state court between 2003 and
June 2005, the period during which he asserts that his mental
health prevented him from seeking state review of his claims
in this case. Mr. Obriecht has offered no explanation for how
he was able to file in those cases but not in this one.
Faced with these facts, we cannot say that the district court
abused its discretion when it determined that Mr. Obriecht
failed to establish that he exercised the requisite reasonable
diligence.
Conclusion
Because the district court did not abuse its discretion in
determining that Glasbrenner’s miscalculation of
Mr. Obriecht’s AEDPA deadline was garden variety negligence
and that Mr. Obriecht failed to prove that he was diligent, we
affirm the judgment of the district court.
AFFIRMED
13
R.14 at 21. We issued an order on May 23, 2013, requesting a copy of this
affidavit from the district court because it was not part of the record in this
case.
As part of that order, out of an abundance of caution, we requested
copies of the papers Mr. Obriecht filed in other cases between March 2003
and June 2005. After a review of these documents, we find no prima facie
evidence of incapacity.