United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 8, 2013

*

Decided February 8, 2013

Before

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 12-3089

ERIC O. RIVERA,

Petitioner-Appellant,

v.

WILLIAM POLLARD,

Respondent-Appellee.

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 12-CV-140-JPS

J.P. Stadtmueller,

Judge.

O R D E R

Eric Rivera pointed a .22-caliber rifle through the open, second-story window of a

residence in Milwaukee, Wisconsin, and fired six to eight rounds toward the street below.

A man sitting in a parked car died from a .22-caliber bullet wound to the head. Rivera

pleaded guilty to first-degree reckless homicide, WIS. STAT. § 940.02(1), and first-degree

reckless endangerment, § 941.30(1). He was sentenced in 1998 to 45 years’ imprisonment. In

early 2012 he petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 alleging that

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1

After examining the briefs and the record, we have concluded that oral argument is

*

unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2)(C).
No. 12-3089 Page 2

trial and appellate counsel had failed to investigate or tell him about a witness who might

have supported a defense that a second gunman fired the fatal shot. Had he known about

this witness, Rivera insisted, he would not have pleaded guilty. The district court

dismissed the action as untimely, reasoning that Rivera was not justified in waiting until

2012 to seek federal relief. We agree with that assessment.

The facts relevant to Rivera’s petition are not disputed. His conviction and sentence

were upheld on direct appeal in 2001, and shortly afterward Rivera received the case file

from appellate counsel. In that file was a police report of an interview with Rosa

Maldonado, who had said she saw someone running along the street and firing a gun

toward the parked car on the night the victim was killed. Rivera read that report soon after

receiving the file, yet he waited until 2008 before taking action. That year he sought

postconviction relief directly from the Wisconsin Court of Appeals, see State v. Knight, 484

N.W.2d 540, 541 (Wis. 1992), on the ground that appellate counsel should have claimed that

his lawyer in the trial court was ineffective in not exploring a second-gunman defense

based on Maldonado’s statement. Her account, the court of appeals noted, suggested that a

street-level gunman might coincidentally have shot the victim while Rivera was firing from

above. Thus the court referred the matter to the trial court for factual development. But in

2011, after many months of hearings in the trial court, the court of appeals denied Rivera’s

petition. The court concluded that he had suffered no prejudice from the inaction of his

lawyers because, as the trial court found, a second-gunman defense lacked evidentiary

support. The court of appeals cited a forensic pathologist’s opinion that the victim had been

struck by a bullet “fired from a higher distance.” The court also noted that Maldonado,

who testified during the postconviction proceedings, had said she saw the street-level

gunman 40 to 45 minutes after hearing a shot fired from the residence. The Supreme Court

of Wisconsin denied review on September 1, 2011.

Rivera filed his § 2254 petition five months later on February 9, 2012. He raised the

ineffective-assistance claim as well as three others not relevant to this appeal. In dismissing

the action as untimely, the district court noted that, of the possible events that can delay the

running of the one-year statute of limitations in 28 U.S.C. § 2244(d)(1), only one could apply

here: The statute cannot run before “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due diligence.”

Id. § 2244(d)(1)(D). The district court thought this date was September 30, 2009, when the

state trial court taking evidence in the postconviction proceedings compiled a formal

record of the “additional facts and witnesses that Mr. Rivera argues were not disclosed to

him prior to trial.” And thus, the district court reasoned, Rivera’s federal petition was

untimely because he had filed it more than a year after that date. The court added that

equitable tolling could not apply because, even if waiting until September 2011 for a

resolution of his state postconviction petition had made Rivera “wary” of seeking relief in
No. 12-3089 Page 3

federal court, the “delay” in state court was not extraordinary and had not prevented

Rivera from seeking relief under § 2254. But the district court envisioned “reasonable jurists

debating” the tolling question and, for that reason, granted a certificate of appealability on

the ineffective-assistance claim. See 28 U.S.C. § 2253(c)(2).

At the outset we note that the district court erred in granting the certificate of

appealability because a procedural question—in this case the timeliness of Rivera’s federal

petition—cannot by itself support granting a certificate. There also must be a substantial

showing of a constitutional violation, 28 U.S.C. § 2253(c)(2); Owens v. Boyd, 235 F.3d 356, 358

(7th Cir. 2000), which the district court did not find. But “a defect in a certificate of

appealability is not a jurisdictional flaw,” Owens, 235 F.3d at 358, and because the state has

not challenged the district court’s grant it has forfeited the benefits the statute. We thus

proceed to resolve the timeliness issue.

Rivera contends that the district court picked the wrong accrual date for his claim of

ineffective assistance. We agree that a mistake was made, but not in the way Rivera

contends or in a way that saves his claim. In his view, the factual predicate remained

unknown until September 1, 2011, when the Supreme Court of Wisconsin cut off further

review of his state postconviction petition. Not until then, says Rivera, could he file a

petition in federal court given his need to exhaust state remedies. See 28 U.S.C.

§ 2254(b)(1)(A).

This argument fails for several reasons. First, Rivera never presented it to the district

court and thus waived it for appeal. See Wis. Educ. Ass’n Council v. Walker, Nos. 12-1854,

12-2011, 12-2058, 2013 WL 203532, at *27 (7th Cir. 2013); Fednav Int’l Ltd. v. Continental

Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). Second, the ongoing state proceedings were (as

Rivera himself implicitly acknowledges) at most a procedural hurdle to his federal claim,

not the factual predicate for that claim. See Daniels v. Uchtman, 421 F.3d 490, 492 (7th Cir.

2005). And even describing the state proceedings as a procedural obstacle is inaccurate

because Rivera could have filed a timely federal petition and asked the district court for a

stay pending exhaustion. See Rhines v. Weber, 544 U.S. 269, 275–77 (2005); Dolis v. Chambers,

454 F.3d 721, 725 (7th Cir. 2006).

Most obviously, though, the date that Rivera discovered the factual predicate for his

claim was not, as the district court surmised, in 2009 when the state trial court compiled a

record of the evidence presented during the postconviction proceedings. See Escamilla v.

Jungwirth, 426 F.3d 868, 870 (7th Cir. 2005) (“Section 2244(d)(1)(D) does not restart the time

when corroborating evidence becomes available; if it did, then the statute of limitations

would fail in its purpose to bring finality to criminal judgments, for any prisoner could

reopen the judgment by locating any additional evidence.”). Instead, Rivera discovered the
No. 12-3089 Page 4

factual predicate for his claim of ineffective assistance in 2001 when he read the police

report of Maldonado’s interview. The one-year statute of limitations began running on that

date and thus expired in 2002. And since only a “pending” state-court action can toll the

limitations period, 28 U.S.C. § 2244(d)(2); Griffith v. Rednour, 614 F.3d 328, 329–30 (7th Cir.

2010); Fernandez v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000), the state postconviction

proceedings that Rivera commenced in 2008 did nothing to save his federal petition from

being dismissed as untimely. This conclusion also dooms Rivera’s argument that the

“delay” in the state-court proceedings constitutes an extraordinary circumstance that stood

in the way of his timely filing—Rivera does not even assert such circumstances caused him

to wait six years before filing his state petition. See Holland v. Florida, 130 S. Ct. 2549, 2562

(2010) (noting that petitioner is entitled to equitable tolling only if he shows that he has

been pursuing his rights diligently and that some extraordinary circumstance stood in his

way of timely filing); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (same).

AFFIRMED.