In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3948

ANOU LO,

Petitioner-Appellant,

v.

JEFFREY P. ENDICOTT,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04 C 133—Rudolph T. Randa, Chief Judge.

____________

ARGUED SEPTEMBER 25, 2007—DECIDED OCTOBER 26, 2007

____________

Before EASTERBROOK, Chief Judge, and BAUER and

KANNE, Circuit Judges.

BAUER, Circuit Judge. On January 12, 1996, PetitionerAppellant Anou Lo was convicted in a Wisconsin court of

attempted murder and reckless endangerment. Several

years after Lo exhausted his direct appeal, the Wisconsin

Supreme Court modified the substantive law of selfdefense and invalidated certain standard jury instructions, including an instruction given at Lo’s trial. Lo

petitions for a writ of habeas corpus, arguing that the

Wisconsin decision is a “factual predicate” giving rise to

a new one-year limitations period. Alternatively, he

contends that the decision warrants equitable tolling of

his petition. The district court dismissed Lo’s petition as

untimely, and we affirm.
2 No. 06-3948

I. Background

On July 6, 1995, Lo shot and injured a member of a

street gang in La Crosse, Wisconsin. At his trial, Lo argued

that he did so in self-defense. The Wisconsin circuit court

determined that Lo adequately raised the issue and gave

the standard jury instruction on imperfect self-defense. On

January 12, 1996, the jury convicted Lo of attempted

first-degree intentional homicide while armed and

first-degree reckless endangerment while armed. On

February 26, 1996, the judge sentenced Lo to consecutive

terms of 20 years’ imprisonment on the attempted homicide conviction and 9 years’ imprisonment on the reckless

endangerment conviction.

On February 5, 2004, Lo filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 claiming

that the Wisconsin circuit court improperly instructed the

jury on imperfect self-defense in violation of his right

to due process. Respondent-Appellee Jeffrey Endicott,

warden of the prison in which Lo was and is imprisoned,

moved to dismiss the claim as untimely. The district

court granted Endicott’s motion on October 6, 2005.

II. Discussion

Lo argues that the district court erred in finding that

the statute of limitations for his petition ran from the

date that his conviction became final. He submits that

State v. Head, 255 Wis.2d 194, 648 N.W.2d 413 (2002),

issued several years after his conviction became final,

acted as a trigger for a new one-year limitations period

for habeas relief. In the alternative, Lo argues that he

is entitled to equitable tolling. We review the district

court’s decision to deny Lo’s habeas petition de novo.

Balsewicz v. Kingston, 425 F.3d 1029, 1031 (7th Cir. 2005).
No. 06-3948 3

The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) provides that “[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). The one-year

period begins to run, according to § 2244(d)(1), from the

latest of the following:

(A) the date on which the judgment became final by

the conclusion of direct review or the expiration of

the time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed,

if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if

the right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on

collateral review; or

(D) the date on which the factual predicate of the

claim or claims presented could have been discovered

through the exercise of due diligence.

Section 2244(d)(1)(A) determines the finality of Lo’s

sentence. On August 21, 1998, the Wisconsin Supreme

Court denied Lo’s petition for review of the Wisconsin

Court of Appeals’s decision on Lo’s direct appeal. Lo did

not seek certiorari review by the United States Supreme Court. As a result, his conviction became final on

November 19, 1998, allowing for the ninety days in which

Lo could have applied for certiorari. See Balsewicz, 425

F.3d at 1032.

The district court held that, under § 2244(d)(1)(A), Lo

had until November 19, 1999 to file his habeas petition.
4 No. 06-3948

1 Prior to State v. Head, Wisconsin law allowed the state to

defeat a defense of imperfect self-defense by showing that

any belief on the part of the defendant that he needed to defend

himself was unreasonable. See State v. Camacho, 176 Wis.2d 860,

872, 501 N.W.2d 380, 384 (1993). Head rejected this standard

and held that when imperfect self-defense is raised, “the

state has the burden to prove that the person had no actual

belief that she was in imminent danger of death or great

bodily harm, or no actual belief that the amount of force she used

was necessary to prevent or terminate this interference.” 255

Wis.2d 194, 244, 648 N.W.2d 413, 437 (2002) (emphasis added).

As Lo filed on February 5, 2004, the district court dismissed his claim as untimely.

Lo argues that instead of § 2244(d)(1)(A), the district

court should have applied § 2244(d)(1)(D). He contends

that a subsequent Wisconsin Supreme Court decision constituted a new “factual predicate” under

§ 2244(d)(1)(D), thereby triggering a new one-year limitations period.

In State v. Head, the Wisconsin Supreme Court redefined the burden on the state to disprove the defense of

imperfect self-defense in a prosecution for first-degree

intentional homicide.1

 255 Wis.2d at 244, 648 N.W.2d at

437. Had Lo’s trial occurred after Head, Lo argues, the

jury would have received a different instruction on imperfect self-defense.

To support his argument that a court decision can be

a “factual predicate” within the meaning of § 2244(d)(1)(D),

Lo relies primarily on Johnson v. United States, 544 U.S.

295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). In Johnson,

the Supreme Court held that the vacatur of the petitioner’s prior state conviction was a matter of fact for

purposes of a one-year statute of limitations under 28
No. 06-3948 5

2 As noted by the Eleventh Circuit in Shannon v. Newland, 410

F.3d 1083, 1088 (11th Cir. 2005), § 2255, ¶ 6(4) is the almost

identical counterpart to § 2244(d)(1)(D) that applies to motions

by federal prisoners attacking their sentences. The Supreme

Court has interpreted the statute of limitations provisions of

§ 2244 and § 2255 in concert with one another. See, e.g.,

Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394,

402, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) (plurality op. of

O’Connor, J.).

U.S.C. § 2255, ¶ 6(4).2 Under § 2255, a one-year limitations period runs from “the date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.” The

Court found that the prior conviction was a “fact” because,

inter alia, it was “subject to proof or disproof like any

other factual issue.” 544 U.S. at 306-07, 125 S.Ct. 1571.

Subsequent courts have declined to interpret Johnson

as holding that any decision of any court acts as a factual predicate for purposes of extending the limitations

period for habeas review. In Daniels v. Uchtman, we

held that a decision by the Illinois Supreme Court on the

merits of a belated collateral attack was not a “factual

predicate” of petitioner’s habeas claim. 421 F. 3d 490, 492

(7th Cir. 2005). In Shannon v. Newland, the Eleventh

Circuit examined facts similar to the case before us

and found that while a state court order of vacatur can

be a fact that begins the one-year limitations period, a

state court decision establishing an abstract proposition

of law arguably helpful to the petitioner’s claim does not

constitute a factual predicate for that claim. 410 F.3d

1083, 1088-89 (11th Cir. 2005); see also E.J.R.E. v. United

States, 453 F.3d 1094, 1097-98 (8th Cir. 2006) (finding

that a federal court of appeals decision was not a qualifying fact under § 2255, ¶ 6(4)).
6 No. 06-3948

The Wisconsin Supreme Court’s clarification of the

law does not constitute a “factual predicate” within the

meaning of § 2244(d)(1)(D). Unlike the state court vacatur

in Johnson, State v. Head was not a fact within Lo’s own

litigation history that changed his legal status. As in

Shannon, the Wisconsin Supreme Court’s decision could

arguably help Lo’s claim, but that does not make the

decision a fact subject to proof or disproof. Moreover,

adopting Lo’s argument would render the limitations

in § 2244(d)(1)(C) meaningless. Section 2244(d)(1)(C), the

primary vehicle through which court decisions restart

the limitations period, provides that the decision must

involve a constitutional right recognized by the Supreme Court, and that the Court must make the right

retroactively applicable to cases on collateral review. To

suggest, as Lo does, that any decision by any court on

any issue could constitute a “factual predicate” would

swallow up the specifically delineated limitations in

§ 2244(d)(1)(C). Though some state court judgments

could potentially constitute a trigger for a new limitations

period under AEDPA—as in Johnson—we do not find

that a state court decision modifying substantive law

constitutes a “factual predicate” under § 2244(d)(1)(D)

justifying a new one-year limitations period.

In the alternative, Lo argues that the district court

should have applied the doctrine of equitable tolling to

excuse his untimeliness. He argues that because he

could not have possibly discovered the basis for his federal claim until after the Head decision, his claim deserves

to be equitably tolled.

Equitable tolling is proper when extraordinary circumstances outside of the petitioner’s control prevent timely

filing of the habeas petition. Arrieta v. Battaglia, 461

F.3d 861, 867 (7th Cir. 2006). We have acknowledged

that equitable tolling may apply to § 2244, but only

where the judge-made doctrine does not conflict with the
No. 06-3948 7

express tolling provisions listed in § 2244(d). Taliani v.

Chrans, 189 F.3d 597, 598 (7th Cir. 1999). Equitable

tolling is rarely granted. Jones v. Hulick, 449 F.3d 784, 789

(7th Cir. 2006).

Lo fails to demonstrate the extraordinary nature of

the circumstances surrounding his claim. We have

never held that a change in state substantive law constitutes an “extraordinary circumstance” that warrants

equitable tolling. Additionally, an application of the

doctrine in this case would conflict with the express tolling

provisions of § 2244(d). The underlying reasons that Lo

presents for both arguments are identical; Lo simply

recasts his § 2244(d)(1)(D) argument and cloaks it in

terms of equity. To allow Lo to succeed on this recharacterized argument would usurp the congressionally

mandated limits on habeas petitions. Accordingly, the

district court properly concluded that the doctrine of

equitable tolling was not applicable in Lo’s case.

Because we find that Lo’s petition for habeas review

is time-barred, we need not address the merits of the

alleged due process violation.

III. Conclusion

For the foregoing reasons, we AFFIRM the decision of

the district court dismissing Lo’s petition as untimely.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-26-07