In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 08-1405

ROBERT E. TUCKER,

Petitioner-Appellant,

v.

PHILLIP A. KINGSTON, 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.

____________

SUBMITTED JULY 11, 2008—DECIDED AUGUST 15, 2008

____________

Before EASTERBROOK, Chief Judge, and FLAUM and RIPPLE,

Circuit Judges.

FLAUM, 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 limitations”); 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 conviction 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 common 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 amendments 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 strictures 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 petitioner must demonstrate, first, that extraordinary circumstances 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 federal 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 district 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 substantial 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

DENIED.

8-15-08