In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 08-1405
R OBERT E. T UCKER,
Petitioner-Appellant,
v.
P HILLIP A. K INGSTON, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07 C 53—Patricia J. Gorence, Magistrate Judge.
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S UBMITTED JULY 11, 2008—D ECIDED A UGUST 15, 2008
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Before E ASTERBROOK, Chief Judge, and F LAUM and R IPPLE,
Circuit Judges.
F LAUM, Circuit Judge. In 2001 Robert Tucker pleaded
guilty to first-degree murder as a party to a crime in a
Wisconsin court and was sentenced to life imprisonment.
He will be eligible for parole in 2035. The state appellate
court affirmed his conviction and sentence, and the state
supreme court denied leave to appeal. His conviction
became final on July 21, 2003, when the time to seek
2 No. 08-1405
review in the Supreme Court expired. See 28 U.S.C.
§ 2244(d)(1)(A).
On December 23, 2003, Tucker filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254 in the district
court. On February 12, 2004, the court dismissed the
petition without prejudice because Tucker had not yet
exhausted his state-court remedies. Indeed, Tucker had
not yet sought postconviction relief in the Wisconsin
courts. Accordingly, Tucker filed a petition for
postconviction relief in the state trial court on April 12,
2004, thereby tolling the limitations period for filing
another § 2254 petition until September 11, 2006, when the
state supreme court denied leave to appeal. See 28 U.S.C.
§ 2244(d)(2). Tucker filed his second § 2254 petition on
January 16, 2007, but by then the limitations period had
expired.
Two hundred sixty-five days elapsed between July 21,
2003, when Tucker’s conviction became final, and April 12,
2004, when his first postconviction petition was properly
filed. Tucker’s first federal petition did not stop the
clock. See 28 U.S.C. § 2244(d)(2); Rhines v. Weber, 544 U.S.
269, 274-75 (2005) (“the filing of a petition for habeas
corpus in federal court does not toll the statute of limita-
tions”); Duncan v. Walker, 533 U.S. 167, 181-82 (2001)
(same); Newell v. Hanks, 283 F.3d 827, 834 (7th Cir. 2002).
Another 126 days passed between September 11, 2006,
when the state supreme court denied leave to appeal in
Tucker’s postconviction action, and January 16, 2007, when
he filed his second § 2254 petition. Discounting the time
during which the limitations period was tolled, Tucker’s
No. 08-1405 3
second § 2254 petition was filed 391 days after his convic-
tion became final—26 days too late. See 28 U.S.C.
§ 2244(d)(1). The district court therefore dismissed the
petition as untimely. Tucker has filed a notice of appeal,
which we construe as a request for a certificate of
appealability.
Tucker argued in the district court that his second § 2254
petition should be treated as an amendment to his first
§ 2254 petition. The state responded that, even construing
the second petition as an amendment to the first, the
amendments would still be time-barred. It seems unlikely
that all of the claims raised in the second petition would
be untimely. At least two of them are virtually identical
to claims raised in the first petition (admissibility of
statements to police and the voluntariness of the plea), and
so it appears at least those two claims are “tied to a com-
mon core of operative facts”—indeed the same facts—as
their counterparts in the first petition. See Mayle v. Felix,
545 U.S. 644, 664 (2005).
But for Tucker to amend his first petition, said petition
needed to have been pending when the proposed amend-
ments were offered. It was not. Tucker’s first petition
was dismissed in February 2004, so there was nothing to
amend when he filed his second petition in January 2007.
See Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 411
n.11 (7th Cir. 1989) (“[O]nce the original complaint was
dismissed, there was no point in continuing plaintiff’s
motion to file an amended complaint. The amended
complaint would have nothing to amend.”).
Tucker also maintains that the doctrine of equitable
tolling should apply because the district court dismissed
4 No. 08-1405
his first petition instead of staying the litigation and
holding the petition in abeyance while he pursued state
remedies. Equitable tolling may apply to cases on collateral
review, but only when it does not conflict with the stric-
tures of 28 U.S.C. § 2244(d). Lo v. Endicott, 506 F.3d 572, 576
(7th Cir. 2007); Araujo v. Chandler, 435 F.3d 678, 680 (7th Cir.
2005); Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.
2005); Balsewicz v. Kingston, 425 F.3d 1029, 1033-34 (7th Cir.
2005); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999).
Equitable tolling is rarely granted. Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990); Lo, 506 F.3d at 576; Jones v.
Hulick, 449 F.3d 784, 789 (7th Cir. 2006). Indeed, we have
yet to identify a petitioner whose circumstances warrant
it. Poe v. United States, 468 F.3d 473, 477 n.5 (7th Cir. 2006);
Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004);
Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003).
Before the principles of equitable tolling apply, a peti-
tioner must demonstrate, first, that extraordinary circum-
stances outside of his control and through no fault of his
own prevented him from timely filing his petition. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005); Irwin, 498 U.S. at 96;
Lo, 506 F.3d at 576; Arrieta v. Battaglia, 461 F.3d 861, 867 (7th
Cir. 2006); Araujo, 435 F.3d at 680; Balsewicz, 425 F.3d at
1033; Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004);
United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).
Second, he must also show that he has diligently pursued
his claim, despite the obstacle. Pace, 544 U.S. at 418; Irwin,
498 U.S. at 96.
After reviewing the record, we find nothing atypical
about Tucker’s purported difficulties in prosecuting this
No. 08-1405 5
action. In a letter to the district court, Tucker complained
of limited resources and lack of familiarity with the
law. However, standing alone, the lack of legal expertise is
not a basis for invoking equitable tolling. See Arrieta, 461
F.3d at 867; Williams v. Sims, 390 F.3d 958, 960 (7th Cir.
2004); Montenegro v. United States, 248 F.3d 585, 594 (7th
Cir. 2001), overruled on other grounds by Ashley v. United
States, 266 F.3d 671 (7th Cir. 2001). For example, we have
held that a prisoner’s limited access to the prison law
library is not grounds for equitable tolling. See Jones, 449
F.3d at 789; but see Moore v. Battaglia, 476 F.3d 504 (7th Cir.
2007) (remanding for evidentiary hearing on whether
prison law library was adequate). In any event, Tucker
had the burden to demonstrate his own diligence in
pursuing his claim, Pace, 544 U.S. at 418, but failed to
present any evidence in support of it. The district court,
therefore, did not abuse its discretion in refusing to
equitably toll the statute of limitations.
Tucker also complains that his petition was dismissed
when it should have been stayed. The Supreme Court
has instructed prisoners who are unsure about whether
they have properly exhausted state remedies, to file a
“ ‘protective’ petition in federal court and ask[ ] the fed-
eral court to stay and abey the federal habeas proceedings
until state remedies are exhausted.” Pace, 544 U.S. at 416;
see also Rhines, 544 U.S. at 277-78; Powell v. Davis, 415 F.3d
722, 728 (7th Cir. 2005). And, for nearly a decade, we have
informed the district courts that whenever good cause is
shown and the claims are not plainly meritless, stay and
abeyance is the preferred course of action. See, e.g., Freeman
v. Page, 208 F.3d 572, 577 (7th Cir. 2000); Tinker v. Hanks,
6 No. 08-1405
172 F.3d 990, 991 (7th Cir. 1999), vacated on other grounds,
531 U.S. 987 (2000), and reinstated, 255 F.3d 444 (7th
Cir. 2001); see also Pace, 544 U.S. at 416 (“A petitioner’s
reasonable confusion about whether a state filing would
be timely will ordinarily constitute ‘good cause’ for him
to file in federal court.”). But Tucker did not ask the dis-
trict court to stay and abey his first federal petition.
When a district court’s order dismissing a petition
without prejudice will “effectively end any chance at
federal habeas review,” that is, when there is a substan-
tial risk that it comes too late for the prisoner to re-file,
district courts are to consider whether a stay might be
more appropriate than an outright dismissal, regardless
of whether the petitioner has made such a request. See
Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006); Newell,
283 F.3d at 834; Post v. Gilmore, 111 F.3d 556, 557 (7th Cir.
1997). But there was no such substantial risk in this case;
more than five months of Tucker’s limitation period
remained when the district court dismissed his first
petition.
Tucker’s final argument, that the statute of limitations
should be tolled during the 90 days he could have sought
certiorari after the state supreme court denied leave to
appeal in his postconviction proceedings, is foreclosed
by Lawrence v. Florida, 127 S. Ct. 1079 (2007).
Tucker’s request for a certificate of appealability and
his motion for appointment of counsel are therefore
D ENIED.
8-15-08