In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-1354

GREGORY SCOTT JOHNSON,

Petitioner-Appellant,

v.

DANIEL MCBRIDE, Superintendent,

Maximum Control Facility,

Respondent-Appellee.

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Appeal from the United States District Court for the

Southern District of Indiana, Evansville Division.

No. IP 98-963-C-Y/K—Richard L. Young, Judge.

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ARGUED AUGUST 10, 2004—DECIDED AUGUST 20, 2004

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Before BAUER, EASTERBROOK, and MANION, Circuit

Judges.

EASTERBROOK, Circuit Judge. A jury convicted Gregory

Scott Johnson of bludgeoning and kicking Ruby Hutslar to

death during a burglary; it found that Johnson set fire to

her home in an effort to conceal his crimes. The jurors

found aggravating circumstances and no mitigating circumstances; they recommended that Johnson be sentenced to

death. The trial judge agreed and imposed that penalty. The

Supreme Court of Indiana affirmed on direct appeal, 584

N.E.2d 1092 (Ind. 1992), and rejected Johnson’s collateral
2 No. 04-1354

attack. 693 N.E.2d 941 (Ind. 1998). That decision became final

on June 26, 1998, so Johnson had until June 28, 1999, to

seek federal collateral review. 28 U.S.C. §2244(d)(1). (June 26,

1999, the end of the statutory year, was a Saturday; the

deadline therefore rolled forward to the following Monday.)

Johnson’s lawyer waited until June 25 to mail the petition

to the district court, which received and filed it on June 29.

Eventually the judge dismissed the petition as untimely.

Section 2244(d)(1)(A) provides that the petitioner has a

year 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”; this language sets the outer limit

at June 28. Johnson contends that we should use

§2244(d)(1)(D) instead; this subsection starts the period on

“the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.” See Owens v. Boyd, 235 F.3d 356

(7th Cir. 2000). The “claim” presented in this federal collateral

attack is that Indiana violated the due process clause of the

fourteenth amendment by withholding evidence that Paul

Decker participated in the offense, something that (if true)

might have enabled Johnson to reduce the degree of his own

culpability. This is not a newly discovered claim; it is the

same claim presented in state court. (On the definition of a

“claim,” see Brannigan v. United States, 249 F.3d 584 (7th

Cir. 2001).) Indiana’s judiciary deemed it to be a bad one

because (a) Johnson did not contend in his confessions or at

trial that Decker played any role in the offense; (b) even

after trial no evidence has emerged that Decker participated. What Johnson now contends is that the police must

have suspected Decker, or they would not have sought a

judicial order to obtain hair samples that they compared with

hairs found at the crime scene. According to Johnson’s

current lawyers, the fact that the application for this order

has never been disclosed to the defense means that the

state is still hiding something and accordingly that the time
No. 04-1354 3

to file a federal collateral attack has not started to run; that

won’t happen, Johnson maintains, until he receives the

application and thus learns why the police told the court

that they wanted to test Decker’s hairs.

Speculation about what the police may have thought early

in their investigation is some distance from knowledge that

the state had, yet concealed, material exculpatory evidence.

See United States v. Agurs, 427 U.S. 97, 108-10 (1976);

Mahaffey v. Schomig, 294 F.3d 907, 917 (7th Cir. 2002).

Testing showed that Decker was not the source of the hair.

This record does not suggest anything other than a painstaking investigation by the police. Johnson would have

known himself whether Decker participated; his role is not

something that the prosecutor could have concealed. A

desire to see more information in the hope that something

will turn up differs from “the factual predicate of [a] claim

or claims” for purposes of §2244(d)(1)(D). The district judge

therefore was right to use §2244(d)(1)(A) to identify the last

day Johnson had to get a collateral attack under way.

Counsel bungled the job in two ways. First, she waited

until the final business day of the statutory year. Prudent

lawyers act sooner, so that Murphy’s Law will not undermine a client’s interests. Second, counsel used first-class

mail rather than Federal Express or another service that

guarantees next-business-day delivery, or (better still) sending

a messenger to the courthouse to file in person. Apparently

counsel believed that use of the mails would add three days to

the time available. Yet Fed. R. Civ. P. 6(e) applies only to

documents “served” on opposing counsel, not to documents

such as complaints or notices of appeal that must be filed in

court. Nothing in the Rules Governing Section 2254 Cases

in the United States District Courts treats any document as

“filed” before actual receipt by the district court’s clerk.

Johnson concedes that his lawyer erred in supposing that

use of the Postal Service adds to the time available for filing

a petition. What he contended in the district court, and
4 No. 04-1354

repeats here, is that lateness should be excused because

delay was counsel’s fault.

Johnson calls the argument one for “equitable tolling,”

which excuses delay when “despite all due diligence [the litigant] is unable to obtain vital information bearing on the

existence of his claim.” Cada v. Baxter Healthcare Corp.,

920 F.2d 446, 451 (7th Cir. 1990), relying on Holmberg v.

Armbrecht, 327 U.S. 392 (1946). Section 2244(d)(1)(D) codifies that doctrine, which as we have already held does not

assist Johnson. Other events might justify delay, see Taliani

v. Chrans, 189 F.3d 597 (7th Cir. 1999), but only if they (a)

are unrelated to the tolling criteria built into §2244, and (b)

show interference with a prisoner’s ability to commence a

collateral attack. See Brooks v. Walls, 279 F.3d 518, 525

(7th Cir.), rehearing denied, 301 F.3d 839 (2002). No one

interfered with Johnson’s ability to pursue collateral relief

in a timely fashion. He wants us to treat his own lawyer as

the source of interference, but lawyers are agents. Their

acts (good and bad alike) are attributed to the clients they

represent. Pioneer Investment Services Co. v. Brunswick

Associates Limited Partnership, 507 U.S. 380, 396-97 (1993);

National Hockey League v. Metropolitan Hockey Club, Inc.,

427 U.S. 639 (1976); Link v. Wabash R.R., 370 U.S. 626,

633-34 (1962); Societé Internationale v. Rogers, 357 U.S. 197,

212 (1958). The sixth amendment creates an exception to

this principle for criminal prosecutions. Cuyler v. Sullivan,

446 U.S. 335, 344 (1980). Once trial and direct appeals have

run their course, however, neither the sixth amendment nor

federal law guarantees effective assistance of counsel for collateral proceedings, not even in a capital case. See Coleman

v. Thompson, 501 U.S. 722, 752-54 (1991); Murray v.

Giarratano, 492 U.S. 1 (1989); 28 U.S.C. §2254(i). So it is as

if Johnson himself had made the decisions that led to the

delay.

Modrowski v. Mote, 322 F.3d 965 (7th Cir. 2003), illustrates

the point. Counsel filed a collateral attack one day late, and
No. 04-1354 5

the prisoner insisted (just as Johnson does) that counsel’s

shortcomings should be treated as an excuse. Modrowski

contended that his (former) lawyer experienced “a series of

physical and mental ailments [that] prevented him from

working on the petition and filing it on time.” 322 F.3d at

966. We replied that

attorney incapacity is equivalent to attorney negligence for equitable tolling purposes. We will not revisit our long-standing determination that petitioners bear ultimate responsibility for their filings, even

if that means preparing duplicative petitions: petitioners, “whether in prison or not, must vigilantly

oversee the actions of their attorneys and, if necessary, take matters into their own hands.” Johnson

[v. McCaughtry, 265 F.3d 559 (7th Cir. 2001)] at

566. Furthermore, no principled distinction exists

between incapacity and negligence for equitable tolling purposes. Even if a prisoner diligently checks an

attorney’s references and disciplinary records, he

still cannot prevent the attorney from bungling his

case. Nonetheless, we hold the prisoner responsible

for his attorney’s bungling. Likewise, a prisoner

cannot prevent his attorney from becoming incapacitated, and there is no reason, however unfortunate

the result, not to hold the prisoner responsible in this

type of situation, as well.

322 F.3d at 968. Johnson’s situation is the result of a simple

gaffe by counsel; he has less claim to extra time than

Modrowski did.

Modrowski’s sentence was life imprisonment; Johnson

contends that prisoners under sentence of death should receive different treatment. Yet neither the text of §2244(d)

nor the principle that lawyers are agents for their clients

draws any distinction between capital punishment and

other sanctions. The Supreme Court held in Coleman and
6 No. 04-1354

Giarratano that all prisoners, including those sentenced to

death, are responsible for their own legal affairs on collateral attack and cannot demand a lawyer at public expense

or obtain relief from the shortcomings of their counsel. In

Coleman a prisoner’s post-conviction counsel filed his notice

of appeal in state court three days late; this default meant

that Coleman failed to exhaust available state remedies and

thus wiped out the prospects of collateral review in federal

court. The Supreme Court recognized that counsel was to

blame but enforced the default nonetheless, holding that

there would be no special dispensations in capital proceedings.

To the extent Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir.

2001), suggests that attorneys’ errors in handling collateral

attacks against death sentences justify equitable tolling

even though the identical conduct in other cases would not,

it is hard to reconcile with Coleman, which the third circuit

did not mention. We agree with Rouse v. Lee, 339 F.3d 238,

251 (4th Cir. 2003) (en banc)—another capital case in which

counsel foolishly waited until the end to mail a petition and

believed that Rule 6(e) added three days to the statutory

filing deadline—that “[a]llowing consideration of the merits

of time-barred claims to creep into the equitable tolling

analysis lets petitioners effectively circumvent the statute

of limitations because the merits of their claims will always

be considered. This would enable petitioners who were in no

way prevented from complying with the statute of limitations to create delay and undermine finality—two of the

reasons that precipitated enactment of the AEDPA statute of

limitations. [It is thus best never] to apply equitable tolling

based on a factor that had nothing to do with [a] failure to

file on time.” It is unnecessary to add to the discussion of

this subject in Rouse, 339 F.3d at 251-56.

Johnson enjoyed thorough consideration by the Supreme

Court of Indiana on both direct appeal and collateral attack.

To obtain another round of review in federal court, Johnson
No. 04-1354 7

had to meet the statutory criteria. He did not do so, and we

are not authorized to excuse his non-compliance. The

statute itself holds out one last opportunity, however: if

exculpatory evidence should emerge, distinct enough to

create a separate “claim,” then §2244(b)(2)(B) could allow

Johnson to file a successive petition. (This subsection

applies when “(i) the factual predicate for the claim could

not have been discovered previously through the exercise of

due diligence; and (ii) the facts underlying the claim, if

proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the

underlying offense.”)

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-20-04