In the

United States Court of Appeals

For the Seventh Circuit

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No. 07-1092

CARLOS K. WILLIAMS,

Petitioner-Appellee,

v.

EDWIN G. BUSS,

Respondent-Appellant.

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Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:05cv0134 AS—Allen Sharp, Judge.

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ARGUED JANUARY 9, 2008—DECIDED AUGUST 14, 2008

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Before WOOD, SYKES, and TINDER, Circuit Judges.

WOOD, Circuit Judge. Carlos K. Williams was sentenced

to 55 years in prison for the murder of Amondo Nelson.

Williams filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254, claiming that his trial counsel was

ineffective, and the district court granted his petition. We

find that the claim was procedurally defaulted, and no

cause and prejudice has been shown to excuse the default;

we therefore vacate the district court’s judgment and

remand for denial of the petition.
2 No. 07-1092

On May 5, 1999, a dispute between Amondo Nelson and

Ramar Daniels—Williams’s brother—escalated into a

confrontation involving gunshots. Witnesses saw

Williams and Daniels both shoot Nelson through the

windows of a car in which Nelson was sitting.

On the first morning of his trial, Williams’s lawyer

was notified of a surprise witness: Norman Richardson,

who had been standing behind the car when the confrontation took place. (Daniels was tried and convicted separately.) Counsel immediately realized that he had represented Richardson on a separate matter and was still

owed fees from that representation. Counsel alerted the

court to the potential conflict of interest, indicating that

he felt there would be no problem, even with cross-examination. In turn, the court discussed the matter with Williams. Williams said that he understood what was going

on, that he had “no problem,” and that he wanted to go to

trial on schedule. He was ultimately convicted and sentenced to 55 years in prison. On direct appeal, he questioned only the sufficiency of the evidence. The Supreme

Court of Indiana affirmed his conviction on June 28, 2001.

His state petition for post-conviction relief, first filed

on December 12, 2001, did not proceed smoothly. The

state public defender withdrew its representation of

Williams on August 9, 2002, leaving Williams to continue

pro se. While this was going on, Williams was found to

be mentally disabled by the Social Security Administration (by letter dated December 3, 2002, with a finding

that his disability dated back to 1988). This letter apparently was not filed with the court. Based on the record
No. 07-1092 3

before it, on June 3, 2003, the trial court denied postconviction relief, stating that Williams “has presented no

evidence . . . that he was ever declared mentally handicapped.”

At this point, matters became more complicated. Williams filed a notice of appeal and later, on October 21, 2003,

a brief, but he did not file the required appendix. This

rendered his submission nonconforming according to

the rules of the court. The state court of appeals gave

Williams 30 days to cure the filing defects in his petition,

starting the clock on February 26, 2004. He did nothing

within the permitted time, leading the State to file a

motion to dismiss for lack of compliance with the order

on May 17, 81 days after the court’s order issued. The

state court finally dismissed the petition with prejudice

for failure to prosecute on June 1, 2004, Day 96. Williams

did not file for transfer to the Supreme Court of Indiana.

Instead, he turned to federal court and filed a petition

for a writ of habeas corpus, signing it on March 29, 2005,

with an official filing date of April 18.

The State argues that Williams’s petition was untimely.

A prisoner has one year to file a petition for a writ of

habeas corpus, starting (as pertinent here) from “the date

on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking

such review.” 28 U.S.C. § 2244(d)(1)(A). Williams’s direct

review concluded and his conviction became final on

September 26, 2001. The time during which a “properly

filed application for State post-conviction or other collateral review” is pending, however, is not counted against
4 No. 07-1092

the federal period of limitation. 28 U.S.C. § 2244(d)(2).

Williams filed for state relief 77 days into his one-year

clock.

As the State sees it, the appellate court dismissed Williams’s cause on June 1, restarting the clock with 288 days

left. His one-year clock would expire on March 16, 2005,

which would make his filing 13 days late. Williams contends that the case was still pending during the 30-day

period when he was entitled to file for transfer to the

Supreme Court of Indiana, and it did not become final

(thereby restarting the one-year clock) until July 1. If he

is right, then his limitations period did not end until

April 15, 2005, and his petition was timely.

The district court thought that it could avoid deciding

whose account was correct by holding that Williams’s time

for filing his federal petition was equitably tolled. We

have not, however, ruled whether or not equitable tolling

should be available at all in a § 2254 context. Johnson v.

Chandler, 224 F. App’x 515, 519 (7th Cir. 2007); Williams v.

Sims, 390 F.3d 958, 963-64 (7th Cir. 2004); Modrowski v.

Mote, 322 F.3d 965, 967 n.12 (7th Cir. 2003) (reserving the

issue explicitly). Equitable tolling requires “extraordinary

circumstances far beyond the litigant’s control . . . .” United

States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)

(denying equitable tolling when counsel’s father passed

away weeks before deadline). “Generally, a litigant

seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance

stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005). Here, the district court criticized the grounds on
No. 07-1092 5

which Williams requested equitable relief (calling the

letter from the Social Security Administration “a very

slender reed to bottom equitable tolling”), but granted it

anyway, seemingly because Williams was appearing pro se

and he was only 13 days late. Williams v. Davis, 2006 U.S.

Dist. LEXIS 29360 at *4-5 (Apr. 28, 2006, N.D. Ind.). Especially when the very availability of equitable tolling for

habeas corpus petitioners is dubious in this circuit, this

reasoning is insufficient under the high Pace standard. The

district court should have proceeded to consider the

timing problem directly.

Although the State argues that our decision in Fernandez

v. Sternes, 227 F.3d 977 (7th Cir. 2000), governs this situation by mandating that the tolling period ends at the

earlier date if no petition for further review is filed, a

closer look at Fernandez shows that it does not go that far.

In fact, we explicitly set that question aside in Fernandez. Id.

at 980 (“It is unnecessary to decide, and we therefore

reserve, the question whether time provided for filing a

petition or appeal to a higher court is treated as time

during which an application is pending, if the time

expires without a filing.”). Here, too, we can reserve

further consideration of the intricacies of the timing rules.

The one-year time limit is not jurisdictional. Taliani v.

Chrans, 189 F.3d 597, 598 (7th Cir. 1997).

Williams cannot prevail for an equally compelling

reason: his ineffective assistance claim was procedurally

defaulted. The State asserts that he never presented this

claim to the state courts, and Williams does not indicate

otherwise. Even if it had been presented on the merits in
6 No. 07-1092

the petition before the appellate court (and if we assumed

that the defective petition was good enough for this

purpose), Williams did not file for transfer to the Supreme

Court of Indiana once his petition was dismissed with

prejudice. This was not a step that he was entitled to omit,

even for a post-conviction petition and even if review (as

it usually is at that level) is discretionary. O’Sullivan v.

Boerckel, 526 U.S. 838, 848 (1999).

Williams tacitly acknowledges this in his briefs before

this court. He offers two reasons why the state court of

appeals should have forgiven his nonconforming filings,

and (we assume generously) that support a finding of

good cause for the procedural default. See Dretke v. Haley,

541 U.S. 386, 388 (2004), and Wainwright v. Sykes, 433 U.S.

72, 87 (1977). But good cause alone is not enough (even if

we were inclined to find it on this record): before we

can overlook a procedural default, we must find both

cause and prejudice, and Williams never demonstrates

the latter. See Haley, 541 U.S. at 388 (grounding the causeand-prejudice requirement in considerations of “finality,

comity, and the orderly administration of justice”); Wainwright, 433 U.S. at 85 (discussing the incorporation of

the cause-and-prejudice standard into federal habeas

corpus law).

In any event, we are not persuaded that Williams was

able to demonstrate good cause to excuse his procedural

default. Williams asserts that he did not have proper

access to the prison law library through no fault of his

own. This court examines claims of cause based on lack of

access to a library on a case-by-case basis. See, e.g.,

O’Donnell v. Davis, 115 F. App’x 869, 871-72 (7th Cir.
No. 07-1092 7

2004). Williams does not explain why the lack of access

to the library hindered his case: the deficiencies indicated

by the state appeals court were clerical, not substantive,

and may well have been curable without access to the

library. Notably, Williams explained this problem to the

state court in his letter of June 1, 2004, and the state

court allowed him 30 extra days in which to file proper

documents. Even afterward, Williams failed to file for

transfer, with no explanation of why he was still hampered

by lack of access to the law library. On this record, Williams cannot rely on lack of access to the library to support cause for his procedural default.

Williams also suggests that his mental incapacity provides cause, but once again the record does not support

him. This court has held that “borderline mental retardation” diagnosed by a neuropsychologist does not constitute cause. Harris v. McAdory, 334 F.3d 665, 668-69 (7th

Cir. 2003) (finding that such a condition was not sufficiently external to the petitioner to support cause for

default); see also Murray v. Carrier, 477 U.S. 478, 488 (1986)

(“[T]he existence of cause for a procedural default must

ordinarily turn on whether the prisoner can show . . . some

objective factor external to the defense[.]”). In Williams’s

case, the diagnosis came from the Social Security Administration rather than a neuropsychologist, which only

weakens his argument for cause: the Harris court rejected the neuropsychologist’s opinion in part because it

was conclusory. See Harris, 334 F.3d at 669. The same

criticism applies to the form letter from the SSA.

The district court reached the merits of the petition

without discussing the procedural default. Williams, 2006
8 No. 07-1092

U.S. Dist. LEXIS 29360 at *5. It should not have done so,

because an unexcused procedural default ends the case.

See, e.g., Daniel v. Knight, 476 F.3d 426, 435 (7th Cir.

2007). Williams procedurally defaulted his ineffective

assistance claim by failing to present it fully to the state

courts. He has not shown the type of cause that would

excuse this defect, nor has he made any argument demonstrating prejudice. In light of his procedural default, we

therefore VACATE the district court’s judgment granting

the writ and REMAND with directions to deny the petition.

8-14-08