In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2629 

JOHN H. BALSEWICZ,

Petitioner-Appellant,

v.

PHILLIP A. KINGSTON, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 C 1019—Aaron E. Goodstein, Magistrate Judge.

____________

ARGUED SEPTEMBER 7, 2005—DECIDED OCTOBER 6, 2005

____________

Before BAUER, POSNER, and EVANS, Circuit Judges.

BAUER, Circuit Judge. John Balsewicz was convicted

in May 1991 of homicide and robbery. He unsuccessfully

appealed his conviction and pursued various state postconviction challenges before filing a petition for a writ

of habeas corpus on October 20, 2003. The respondent

moved to dismiss the petition as untimely and procedurally

barred. The district court granted the motion and dismissed

the petition as untimely. We affirm.

I. Background

In the early morning of August 24, 1990, witnesses saw

Balsewicz and another man, Garceia Coleman, chasing the
2 No. 04-2629

victim, Richard Terry. Terry escaped his pursuers several times, but after each escape they caught and beat

him again. The final time the two men caught Terry, they

kicked him repeatedly and beat him with a door frame

found in the alley. Witnesses who attempted to intervene

were threatened. One witness testified that Coleman

removed Terry’s wallet from his back pocket. Terry died

as a result of the beatings. In May 1991, a jury convicted

Balsewicz of first-degree intentional homicide and robbery.

Balsewicz informed his attorney of his belief that he

was mentally ill at the time of the crime. According to

Balsewicz, this mental disease was manifested in various

ways over the course of his life, including the following: (1)

he has heard voices threatening to kill him; (2) he has

suffered from hallucinations of snakes and spiders; (3) he

set his own house on fire to avoid the envisioned spiders; (4)

he severely beat a cat he believed to be inhabited by

a demon; and (5) he killed the victim believing him to be

a demon. No evidence of these phenomena was presented at

the trial that resulted in Balsewicz’s conviction.

The Milwaukee County Circuit Court imposed a life

sentence for the homicide conviction and a consecutive tenyear sentence for the robbery conviction. On direct review,

the Wisconsin Court of Appeals affirmed the conviction and

issued a Remittitur on May 24, 1994. Balsewicz did not

seek discretionary review of the Court of Appeals decision

in the Wisconsin Supreme Court or seek certiorari in the

United States Supreme Court.

On February 5, 1999, Balsewicz instituted post-conviction

proceedings, asserting for the first time, claims of ineffective assistance of trial and appellate counsel. After the

Circuit Court denied relief, the Court of Appeals reversed

and remanded for a hearing to determine whether Balsewicz was competent at the time of trial and whether

trial counsel was ineffective for failing to raise the issue.
No. 04-2629 3

On April 19, 2002, the Circuit Court conducted a hearing

and ruled that Balsewicz was competent at the time of trial

and that trial counsel provided him with effective assistance. The Wisconsin Court of Appeals affirmed this

decision, and Balsewicz did not then properly appeal to

the Wisconsin Supreme Court.

On October 20, 2003, Balsewicz filed a petition for a

writ of habeas corpus in the United States District Court for

the Eastern District of Wisconsin. With the written consent

of both parties, the case was reassigned to Magistrate Judge

Goodstein, who granted the respondent Kingston’s motion

to dismiss the petition as untimely on April 14, 2004.

Balsewicz filed a request for a certificate of appealability,

which was denied on May 24, 2004. He then applied to this

Court for a certificate of appealability, which was granted

on October 18, 2004.

II. Discussion

A. Standard of Review

We review the district court’s decision to deny Balsewicz’s

habeas petition de novo. Schaff v. Snyder, 190 F.3d 513, 522

(7th Cir. 1999). Because Balsewicz filed his habeas petition

after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, its

standard of review governs his claims. Under the AEDPA,

habeas relief is only available if the petitioner demonstrates

that the state court proceedings “resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States” or “resulted in a

decision that was based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d).
4 No. 04-2629

B. The AEDPA Statute of Limitations

The 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). This one-year period runs

from the latest of the following: (1) the date the judgment

becomes final or the expiration of time to seek review; (2)

the date that the impediment to filing created by state

action in violation of the Constitution is removed; (3) the

date that the constitutional right asserted was recognized

by the Supreme Court and made retroactively applicable to

cases on collateral review; or (4) the date on which the

factual predicate of the claim could have been discovered by

due diligence. 28 U.S.C. § 2244(d)(1). This one-year

time limit will be tolled, however, during such time that the

petitioner has state post-conviction or other collateral

review with respect to the pertinent judgment pending in

state court. 28 U.S.C. § 2244(d)(2).

Balsewicz’s habeas petition was due one 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.” 28 U.S.C. § 2244(d)(1)(A). On direct appeal,

the Wisconsin Court of Appeals affirmed Balsewicz’s

conviction and issued a Remittitur to the Circuit Court

on May 24, 1994. In Wisconsin, a direct challenge to a conviction becomes “final” the day the Remittitur issues. See

Wis. Stat. § 809.26; State ex rel. Fuentes v. Wisconsin Court

of Appeals, 593 N.W.2d 48, 51 (Wis. 1999). Balsewicz sought

neither discretionary review of the Court of Appeals decision by the Wisconsin Supreme Court nor certiorari review by the United States Supreme Court. As a

result, his conviction became final on August 22, 1994,

allowing for the ninety days in which Balsewicz could have

applied for certiorari. See Anderson v. Litscher, 281 F.3d

672, 675 (7th Cir. 2002).
No. 04-2629 5

For prisoners whose convictions became final prior to

the AEDPA’s enactment on April 24, 1997, however, there

was a one-year grace period in which to file. Lindh v.

Murphy, 521 U.S. 320, 336 (1997); Newell v. Hanks, 283

F.3d 827, 832 (7th Cir. 2002). Balsewicz’s conviction became

final before the effective date of the AEDPA, so he had the

benefit of the grace period and could have timely filed his

habeas petition at any time until April 24, 1997. He did not,

however, file his habeas petition until October 20, 2003,

more than six years later. Also, from the date of the

Remittitur, May 24, 1994, until the date that he filed his

motion for post-conviction relief, February 5, 1999,

Balsewicz did not pursue any challenge in state court that

would have tolled the statute of limitations. Thus, his

habeas petition was untimely.

Even accepting the fact that the petition was untimely,

Balsewicz argues that his constitutional claims of ineffective assistance of counsel merit consideration because

he is “actually innocent” due to a mental disease or defect

he suffered at the time of the crime. He proposes a “miscarriage of justice” exception to § 2244, similar to the “miscarriage of justice” exception found elsewhere in habeas

jurisprudence that would allow him to assert this claim of

“actual innocence.” See Dellinger v. Bowen, 301 F.3d 758,

767 (7th Cir. 2002) (discussing the miscarriage of justice

exception that applies where a petitioner procedurally

defaulted his federal claims in state court). As Balsewicz

concedes, the AEDPA does not reference an exception to the

limitations period predicated on a petitioner’s actual

innocence for an initial habeas petition, see 28 U.S.C. §

2244(d), although the statute provides just such an exception for successive habeas petitions. See id. § 2244(b)(2).

Neither the Supreme Court nor this Court has recognized

a freestanding actual innocence exception to § 2244 that

would allow a petitioner to overcome a failure to file the

petition in a timely manner. Gildon v. Bowen, 384 F.3d 883,
6 No. 04-2629

887 (7th Cir. 2004). The courts that have acknowledged that

the exception might be warranted under appropriate

circumstances have declined to resolve the issue “unless the

petitioner was able to demonstrate that he was actually

innocent.” Souter v. Jones, 395 F.3d 577, 589 (6th Cir.

2005); see also Lucidore v. New York State Div. of Parole,

209 F.3d 107, 114 (2d Cir. 2000); Wyzykowski v. Dep’t of

Corr., 226 F.3d 1213, 1218 (11th Cir. 2000).

In order to demonstrate actual innocence in a collateral proceeding, a petitioner must present “new reliable

evidence that was not presented at trial” and “show that it

is more likely than not that no reasonable juror would have

found [him] guilty beyond a reasonable doubt.” Schlup v.

Delo, 513 U.S. 298, 299, 327-28 (1995). In his briefs and

affidavits, Balsewicz has presented evidence not introduced

at trial to the effect that over the course of his life, he has

heard voices threatening to kill him, suffered from hallucinations in which he saw snakes and spiders, set his own

house on fire to avoid those spiders, severely beaten a cat he

believed to be inhabited by a demon, and killed the victim

believing him to be a demon. Taken together, Balsewicz

argues, this new evidence reveals that Balsewicz suffered

from a mental disease or defect at the time of the crime,

thus negating the intent to kill required for homicide under

Wisconsin law. See Wis. Stat. § 940.01(1)(a).

This argument fails. First, the Milwaukee County Circuit

Court, in a decision affirmed by the Wisconsin Court of

Appeals, retrospectively concluded that Balsewicz was

competent at the time of the April 1994 trial. Second, even

assuming that Balsewicz in fact suffered from a mental

defect, it would not negate the intent element of first-degree

homicide. See Wis. Stat. § 971.15(3). As the Wisconsin

Supreme Court has held, mental disease or defect is

an affirmative defense to “responsibility”—it relieves

the person of the sanctions for criminal conduct. It does
No. 04-2629 7

not relieve the person already found guilty in the first

phase of the factual finding of criminal conduct. Rather,

the successful assertion of the affirmative defense in

phase two results in a noncriminal-sanction disposition.

Thus, it is clear that phase two is not determinative of

guilt in the sense of criminal conduct but only determinative of the disposition of the defendant in terms of the

treatment to be afforded one who was insane at the

time the guilty conduct was performed.

State v. Koput, 418 N.W.2d 804, 811-12 (Wis. 1988). So, the

mental responsibility phase of the bifurcated trial “is

dispositional in nature and has nothing to do with whether the defendant is guilty.” Id. at 812. Balsewicz’s success

on a properly entered plea of not guilty by reason of mental

disease or defect, then, would have affected only the nature

and location of his custody, not his actual innocence under

Wisconsin law. As previously recognized, this Court must

follow the Wisconsin Supreme Court’s interpretation of this

exact point of Wisconsin law. Leach v. Kolb, 911 F.2d 1249,

1256 (7th Cir. 1990) (citing Hicks v. Feiock, 485 U.S. 624

(1988)).

C. Equitable Tolling and Estoppel

This Court has stated that actual innocence, instead of

comprising a freestanding exception to the AEDPA, must be

presented in conjunction with a claim that the habeas

statute of limitations should be equitably tolled. Gildon, 384

F.3d at 887. Equitable tolling is proper when extraordinary

circumstances outside of the petitioner’s control prevent

timely filing of the habeas petition. Id. This Court has

acknowledged that equitable tolling may apply to § 2244,

but only where the doctrine’s operation would not conflict

with the tolling provisions specifically listed in § 2244(d).

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

Because Balsewicz does not present an equitable tolling
8 No. 04-2629

argument on appeal, however, we cannot consider his

claims of actual innocence within that analytical framework.

Although Balsewicz does not advance an equitable tolling argument, he contends that the state should be equitably estopped from asserting the statute of limitations

defense because Wisconsin’s post-conviction statute led him

to believe that he had more time to seek habeas relief. The

doctrine of equitable estoppel applies to situations involving

“conduct by the defendant that prevents the plaintiff from

suing within the statutory period.” Williams v. Sims, 390

F.3d 958, 959 (7th Cir. 2004). This Court has allowed that

equitable estoppel, like equitable tolling, may apply to §

2244 only where the doctrine’s operation would not conflict

with the specific tolling provisions of § 2244(d). Taliani, 189

F.3d at 598.

No conduct by the respondent State of Wisconsin prevented Balsewicz from suing within the limitations period. Balsewicz argues that the language of Wis. Stat.

§ 974.06 incorrectly led him to believe that he could file

his state post-conviction challenge at any time and still

avail himself of federal habeas review. The statute provides

that a “motion for [post-conviction] relief is a part of the

original criminal action, is not a separate proceeding and

may be made at any time.” Wis. Stat. § 974.06(2). The

statutory language allows for a post-conviction challenge at

any time, but makes no reference to habeas relief. Instead,

Balsewicz relies on a reading of the statute in conjunction

with 28 U.S.C. § 2244(d)(2) to argue that Balsewicz could

reasonably have considered his post-conviction challenge

“pending” for habeas purposes because under Wisconsin law

a post-conviction challenge comprises “a part of the original

criminal action.” Wis. Stat. § 974.06(2).

These assumptions about the interplay between the

state and federal statutes fall considerably short of the
No. 04-2629 9

“affirmative conduct” that Balsewicz would need to demonstrate in order to establish equitable estoppel against the

state. See Powell v. Davis, 415 F.3d 722, 728 (7th Cir. 2005).

The state took no active steps to prevent Balsewicz from

filing. See Brooks v. Walls, 279 F.3d 518, 525 (7th Cir.

2002). The fact that the statutory language affords

Balsewicz a distinct state collateral challenge to the

conviction does not negate the finality of his conviction for

purposes of federal habeas review. It remains clear under

Wisconsin law that a conviction becomes final when the

Remittitur issues. See Wis. Stat. § 809.26; State ex rel.

Fuentes, 593 N.W.2d at 51. Thus, the state is not equitably

estopped from asserting the habeas statute of limitations. To hold otherwise would render the AEDPA limitations period ineffective as to all habeas petitioners who

were convicted in Wisconsin state court.

Even if there had been some conduct by the state that

prevented Balsewicz from filing, his reliance on equitable

doctrines is misplaced because he waited so long to advance

his ineffective assistance of counsel claims. As the Supreme

Court recently reasserted, a petitioner’s lack of diligence

will preclude equity’s operation. Pace v. DiGuglielmo, 125

S. Ct. 1807, 1815 (2005). In the instant case, the factual

predicate for the claims against trial and appellate counsel

would have been known to Balsewicz by April 19, 1994,

when the Wisconsin Court of Appeals affirmed his conviction. Balsewicz failed to challenge the decision on direct

appeal but waited four and a half years before filing any

state collateral challenge. His failure to file a habeas

petition before the April 24, 1997 expiration of the AEDPA

grace period, then, is attributable to his own inaction. If he

had filed direct or collateral challenges to the conviction,

then the pending claims would have tolled the habeas

statute of limitations. Because Balsewicz waited for years,

without justification, to assert his constitutional claims, he

cannot now invoke equity to excuse the procedural defect

that bars them. See id.
10 No. 04-2629

D. Ineffective Assistance of Counsel

To prove a Sixth Amendment ineffective assistance

of counsel claim, a petitioner must establish both that

his counsel’s representation fell below an objective standard

of reasonableness and that he was prejudiced as a result.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To

have his ineffective assistance of counsel claims considered,

however, Balsewicz first would need to establish his actual

innocence. A demonstration of actual innocence is “a

gateway through which a habeas petitioner must pass to

have his otherwise barred constitutional claim considered

on the merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993).

Because Balsewicz cannot demonstrate the actual innocence

necessary to pass through this “gateway,” we will not reach

the merits of his ineffective assistance of counsel claims.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

denial of Balsewicz’s petition for a writ of habeas corpus.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-6-05