In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1688
RONALD MARION CARPENTER, JR.,
Petitioner‐Appellant,
v.
TIMOTHY DOUMA,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 14‐CV‐771 — J. P. Stadtmueller, Judge.
____________________
ARGUED SEPTEMBER 8, 2016 — DECIDED OCTOBER 28, 2016
____________________
Before WOOD, Chief Judge, and KANNE and HAMILTON, Cir‐
cuit Judges.
KANNE, Circuit Judge. A jury convicted Ronald Marion
Carpenter, Jr. of kidnapping, false imprisonment, and several
counts of sexual assault. Carpenter challenged his conviction
on both direct and collateral review in Wisconsin state court.
His conviction was affirmed, and his state petition for a writ
of habeas corpus was denied.
2 No. 15‐1688
Carpenter then filed a petition for a writ of habeas corpus
in the Eastern District of Wisconsin. By the time he filed this
federal petition, however, the one‐year statutory limitation
period had already passed. The district court dismissed Car‐
penter’s petition as untimely. Carpenter does not dispute that
his petition was untimely; instead, he argues that his delay
should be equitably tolled and that we should hear the merits
of his case. Because Carpenter has not met the standard for
equitable tolling, we agree with the district court. We hold
that Carpenter’s petition is untimely and thus was properly
denied.
I. BACKGROUND
On August 27, 2008, a jury in Milwaukee County Circuit
Court found Carpenter guilty of kidnapping, false imprison‐
ment, four counts of second‐degree sexual assault, and four
counts of first‐degree sexual assault. Carpenter was sentenced
to fifty‐nine years’ imprisonment followed by twenty‐four
years of extended supervision. His conviction and sentence
were affirmed on appeal, and the Wisconsin Supreme Court
denied Carpenter’s petition for review.
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), “A 1‐year period of limitation shall apply
to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” 28 U.S.C.
§ 2244(d)(1). This limitation period runs from the latest of sev‐
eral dates, only one of which is relevant to this case: “the date
on which the judgment became final by the conclusion of di‐
rect review or the expiration of the time for seeking such re‐
view.” § 2244(d)(1)(A). This one‐year period is statutorily
tolled for the “time during which a properly filed application
No. 15‐1688 3
for State post‐conviction or other collateral review with re‐
spect to the pertinent judgment or claim is pending … .”
§ 2244(d)(2).
Carpenter’s conviction became final on January 27, 2012,
when the period for seeking certiorari expired. Because Car‐
penter had filed a petition for a supervisory writ in the Wis‐
consin Supreme Court on November 4, 2011, and because that
petition remained pending when his conviction became final,
the one‐year AEDPA limitations period was statutorily tolled
until February 23, 2012, when the Wisconsin Supreme Court
rejected that petition. Carpenter’s one‐year window under
AEDPA thus began on February 23, 2012.
The statutory period was again tolled on October 18,
2012—after running for 238 days—when Carpenter filed a pe‐
tition for a writ of habeas corpus in the Wisconsin Court of
Appeals. The court denied that petition. The Wisconsin Su‐
preme Court upheld the denial of that petition on August 1,
2013, and the AEDPA period began to run again, leaving Car‐
penter with 127 days to file his habeas petition in federal
court. Carpenter’s window under AEDPA closed on Decem‐
ber 6, 2013.
Carpenter didn’t file his petition for a writ of habeas cor‐
pus in the Eastern District of Wisconsin until July 3, 2014,
nearly seven months later. Carpenter does not dispute that the
one‐year limitations period under AEDPA expired before he
filed his federal habeas corpus petition. Instead, he argues
4 No. 15‐1688
that his delay should be excused under the doctrine of equi‐
table tolling.1 The district court rejected that argument. This
appeal followed.
II. ANALYSIS
In some circumstances, the doctrine of equitable tolling
permits a federal habeas petitioner to overcome a breach of
AEDPA’s one‐year limitations period. Taylor v. Michael, 724
F.3d 806, 810 (7th Cir. 2013). Although not a “chimera—some‐
thing that exists only in the imagination,” Socha v. Boughton,
763 F.3d 674, 684 (7th Cir. 2014), equitable tolling is an extraor‐
dinary remedy that is “rarely granted.” Obriecht v. Foster, 727
F.3d 744, 748 (7th Cir. 2013) (quoting Simms v. Acevedo, 595
F.3d 774, 781 (7th Cir. 2010)). A habeas petitioner is entitled to
equitable tolling only if he shows “(1) that he has been pursu‐
ing his rights diligently, and (2) that some extraordinary cir‐
cumstance stood in his way and prevented timely filing.” Hol‐
land v. Florida, 560 U.S. 631, 649 (2010) (internal quotation
marks omitted)). The habeas petitioner bears the burden of
demonstrating both elements of the Holland test. Williams v.
Buss, 538 F.3d 683, 685 (7th Cir. 2008). If the petitioner cannot
demonstrate either of the two elements, then equitable tolling
will not be applied. Menominee Indian Tribe of Wisconsin v.
United States, 136 S. Ct. 750, 755–56 (2016); Lawrence v. Florida,
549 U.S. 327, 336–37 (2007) (rejecting equitable tolling without
1 Carpenter makes other arguments in his petition including that he was
denied the right to a public trial, that his trial counsel was ineffective, and
that he should have been allowed to proceed pro se on appeal; however,
because we find that his petition is untimely, we do not address these
other arguments.
No. 15‐1688 5
addressing diligent pursuit because the petitioner clearly
could not demonstrate extraordinary circumstances).
Carpenter argues that both elements of the Holland test are
met in this case. First, he argues that he diligently pursued his
rights throughout the AEDPA period by filing various ap‐
peals, motions, and other documents in the Wisconsin and
federal courts. Second, he argues that a variety of exceptional
circumstances prevented his timely filing. The district court
rejected Carpenter’s arguments for equitable tolling and dis‐
missed his petition as untimely. “We review the decision to
deny equitable tolling for an abuse of discretion.” Obriecht,
727 F.3d at 748 (quoting Simms, 595 F.3d at 781).
A. Diligent Pursuit
“The diligence required for equitable tolling purposes is
reasonable diligence … not maximum feasible diligence.”
Holland, 560 U.S. at 653 (internal citations and quotation
marks omitted). Thus, to qualify for equitable tolling, Carpen‐
ter had to demonstrate that he was reasonably diligent in pur‐
suing his rights throughout the limitations period and until
he finally filed his untimely habeas petition on July 3, 2014.
The Supreme Court in Holland found that a habeas peti‐
tioner had exercised reasonable diligence by writing his attor‐
ney “numerous letters seeking crucial information and
providing direction”; “repeatedly contact[ing] the state
courts, their clerks, and the Florida State Bar Association”;
and preparing “his own habeas petition pro se and promptly
fil[ing] it with the District Court” on the day he discovered
that his AEDPA clock had expired. Id. In Socha, we similarly
held that a habeas petitioner had exercised reasonable dili‐
gence by repeatedly writing his attorney requesting access to
6 No. 15‐1688
his file, pleading with the public defender’s office for help,
and alerting the court “before the deadline arrived” that he
sought to preserve his rights. 763 F.3d at 687–88.
Carpenter argues that his case is similar to Socha because
he filed motions in federal court during the limitations period
expressing his desire to preserve his rights. We disagree.
True enough, Carpenter did file two motions in federal
court to stay and hold in abeyance his federal petition for ha‐
beas corpus. He filed the first motion on October 19, 2012, af‐
ter the AEDPA limitations period had run for 238 days. He
filed the second motion on January 13, 2014, after the AEDPA
limitations period had expired. The filing of these motions,
however, does not demonstrate that Carpenter diligently pur‐
sued his rights.2
Although the first motion is similar to the one that the pe‐
titioner in Socha filed in that it was filed before the AEDPA
limitations period expired, the filing of that motion doesn’t
demonstrate that Carpenter exercised reasonable diligence.
To the contrary, Carpenter’s actions after filing that motion af‐
firmatively undermine a finding of reasonable diligence. The
district court denied that motion on October 22, 2012, because
Carpenter had not yet filed a federal habeas petition. In so do‐
ing, District Judge Adelman explained that a stay cannot be
granted on a habeas petition until that habeas petition is filed
in the district court. Despite Judge Adelman’s explanation,
Carpenter waited another twenty‐one months, nearly seven
2 These motions were filed in two separate miscellaneous cases in the East‐
ern District of Wisconsin. The first motion was filed in Case No. 12‐MC‐
66 before District Judge Lynn Adelman. The second motion was filed in
Case No. 14‐MC‐5 before District Judge C. N. Clevert, Jr.
No. 15‐1688 7
months beyond the expiration of the one‐year limitations pe‐
riod, to file his federal habeas petition. That extended delay in
filing in the face of the district court’s procedural instruction
to the contrary is not reasonable diligence. See Johnson v.
McCaughtry, 265 F.3d 559, 565–66 (7th Cir. 2001) (holding that
a petitioner who “wasted” a significant number of days was
not entitled to equitable tolling despite errors made by the
trial court and the court of appeals).
Carpenter’s filing of the second motion also does not qual‐
ify as reasonable diligence for two reasons. First, the second
motion was untimely—filed over a month after the AEDPA
limitations period had expired. Thus, the second motion pro‐
vides no support for the comparison to Socha, in which the
petitioner filed a motion to extend his AEDPA limitations pe‐
riod before that limitations period had expired. 763 F.3d at 687–
88. Second, even if that motion had been timely, it still would
not qualify as reasonable diligence. By filing that second mo‐
tion for a stay and abeyance, rather than a petition for a writ
of habeas corpus, Carpenter again flatly ignored the district
court’s procedural instructions in its prior order denying the
first motion.
Here, unlike the petitioner in Socha, Carpenter did not ex‐
ercise reasonable diligence in pursuit of his rights. Although
he did file two federal motions seeking an extension of time
to file a federal habeas action, he simply ignored the district
court’s instructions regarding the proper way to seek such an
extension. The district court did not abuse its discretion in re‐
jecting Carpenter’s argument for equitable tolling on this
ground.
8 No. 15‐1688
B. Extraordinary Circumstances
Because we agree with the district court that Carpenter
failed to establish diligent pursuit, we conclude that he is not
entitled to equitable tolling. But because the district court also
considered Carpenter’s arguments regarding the second ele‐
ment of the Holland test—extraordinary circumstances—we
also briefly address this matter. See Obriecht, 727 F.3d at 750.
In order to qualify for equitable tolling, Carpenter also had
to demonstrate that “[e]xtraordinary circumstances far be‐
yond [his] control … prevented timely filing.” United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). The Supreme
Court recently reiterated that this element is met “only where
the circumstances that caused a litigant’s delay are both ex‐
traordinary and beyond [his] control.” Menominee Indian, 136
S. Ct. at 756 (2016).
Carpenter argues that at least six circumstances prevented
his timely filing. These include his (1) lack of legal training;
(2) lack of appointed counsel during portions of the appeals
process; (3) physical and mental health issues; (4) removal
from his correctional facility to address his health issues; (5)
inability to obtain a legal loan; and (6) conflicts with ap‐
pointed counsel during his state appeal.
Carpenter concedes that some or all of these circum‐
stances, taken alone, would be insufficient to justify equitable
tolling. He is correct. We have held that “garden variety”
claims are insufficient to justify equitable tolling. Obriecht, 727
F.3d at 749 (quoting Holland, 560 U.S. at 651–52); Griffith v. Red‐
nour, 614 F.3d 328, 331 (7th Cir. 2010). As the district court
noted, all of the circumstances Carpenter alleges “are com‐
mon parts of prison life.” Carpenter v. Dittmann, No. 14‐CV‐
No. 15‐1688 9
771‐JPS, 2015 WL 687499, at *5 (E.D. Wis. Feb. 18, 2015). As
such, most of these circumstances, taken alone, do not qualify
as “extraordinary.”
Instead, Carpenter argues that these circumstances, when
combined, rise to the necessary level of “extraordinary,” so
that equitable tolling is permissible. Carpenter is also correct
that we look at “the entire hand” that he was dealt and use a
“flexible standard that encompasses all of the circumstances
that he faced and the cumulative effect of those circum‐
stances” to determine whether they were “extraordinary” and
truly prevented timely filing of his habeas petition. Socha, 763
F.3d at 686 (internal quotation marks omitted) (citing Holland,
560 U.S. at 650). But because these circumstances, even when
combined, are nothing but ordinary, we agree with the district
court and reject Carpenter’s argument for equitable tolling on
this ground as well.
The only arguably extraordinary circumstance that Car‐
penter faced involved his physical and mental health issues.
We have held that mental incompetence can qualify as an ex‐
traordinary circumstance justifying equitable tolling. Davis v.
Humphreys, 747 F.3d 497, 498–500 (7th Cir. 2014). We have also
held that mental illness can toll a statute of limitations, but
“only if the illness in fact prevents the sufferer from managing
his affairs and thus from understanding his legal rights and
acting upon them.” Obriecht, 727 F.3d at 750–51 (quoting Mil‐
ler v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)). Likewise, we do
not doubt that a physical illness or other health issue could
also justify equitable tolling if that issue was severe enough to
actually prevent timely filing.
The issue here is that Carpenter failed to meet his burden
of demonstrating that his physical and mental health issues,
10 No. 15‐1688
even when combined with the other circumstances he classi‐
fies as extraordinary, “actually impaired his ability to pursue
his claims.” Id. at 751. What Carpenter alleges is that he was
incarcerated, that he suffered from blood clots and other
health issues, and that he was removed from his correctional
facility for a few days to address those issues. Carpenter does
not explain how those issues kept him from filing his habeas
petition during the AEDPA limitations period or for nearly
seven months after it.
Again, equitable tolling is an extraordinary remedy that is
“rarely granted.” Obriecht, 727 F.3d at 748. In Socha, we ap‐
plied equitable tolling for a petitioner who faced hurdles that
were “nearly insurmountable.” 763 F.3d at 686. Although we
recognize that Carpenter’s circumstances may have made it
more difficult for him to file a petition for habeas corpus, we
do not believe that the district court abused its discretion
when it found that “this is not an extraordinary case.” Carpen‐
ter v. Dittmann, No. 14‐CV‐771‐JPS, 2015 WL 687499, at *5
(E.D. Wis. Feb. 18, 2015). Carpenter’s petition for habeas cor‐
pus was properly denied as untimely.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of the petition for a writ of habeas corpus.