In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 12-1598

THOMAS R. SOCHA,

Petitioner-Appellant,

v.

GARY A. BOUGHTON, Warden,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:08-cv-994 — Rudolph T. Randa, Judge.

____________________

ARGUED APRIL 7, 2014 — DECIDED AUGUST 14, 2014

____________________

Before WOOD, Chief Judge, and KANNE and SYKES, Circuit 

Judges.

WOOD, Chief Judge. This is the second time we have been 

asked to consider Thomas Socha’s struggle to have his federal habeas corpus petition heard on the merits. When we 

first considered Socha’s case in 2010, we held that the district 

court was not compelled to dismiss his petition for missing 

the deadline established by the Antiterrorism and Effective 

Death Penalty Act (AEDPA). See Socha v. Pollard, 621 F.3d 
2 No. 12-1598

667 (7th Cir. 2010) (Socha I). We sent the case back to the district court with instructions to evaluate several theories under which Socha’s action would be timely: whether the motion to extend time that Socha filed might serve as the petition itself; whether the deadline should have been equitably 

tolled in light of the obstacles to Socha’s filing and the district court’s initial grant of his motion to extend the deadline; 

or whether the state should be equitably estopped from asserting a timeliness defense.

The district court rejected each of these possibilities on 

remand. It reasoned that Socha’s motion could not be construed as a petition for a writ of habeas corpus because it did 

not offer any grounds for relief from his conviction; it denied 

equitable tolling based on a finding that Socha had not been

diligent in pursuing his rights; and it found equitable estoppel unwarranted because the state had not placed intentional 

barriers in the way of Socha’s petition.

We again granted Socha’s request for a certificate of appealability. Although we see no reversible error in the 

court’s first and third rulings, we conclude that it abused its 

discretion when it rejected Socha’s equitable tolling argument. We do not make such a decision lightly, but given the 

unusual obstacles that confronted Socha in filing his petition, 

his repeated attempts to obtain his record and comply with 

the deadline, and the district court’s initial grant of a motion 

to extend the deadline, we are convinced that equity requires his failure to file a completed petition before the 

deadline to be forgiven. Accordingly, we reverse the judgment of the district court and remand Socha’s petition for 

further proceedings consistent with this opinion.
No. 12-1598 3

I

As we explained in our earlier opinion, Socha was convicted of first-degree intentional homicide after a bench trial 

in 2002. See Socha I, 621 F.3d at 668. He simultaneously proceeded with his direct appeal and filed for state postconviction relief, as is permitted under Wisconsin law. The 

Wisconsin Court of Appeals affirmed his conviction, and the 

Supreme Court of Wisconsin denied further review on April 

17, 2007.

Socha chose not to pursue a petition for a writ of certiorari 

in the U.S. Supreme Court from the state supreme court’s 

decision. Instead, he turned immediately to a petition under 

28 U.S.C. § 2254 in the federal district court. Under AEDPA, 

he had one year from the date his conviction became final to 

file his federal habeas corpus petition. 28 U.S.C. 

§ 2244(d)(1)(A). The point from which that one year runs, 

however, varies. For a state prisoner who does not seek collateral relief, it runs from the date when the judgment becomes final by the expiration of the time for seeking direct 

review. See 28 U.S.C. § 2244(d)(1) (“The limitation period 

shall run from the latest of ... .”) As we discuss in more detail below, that time includes the period during which the 

state prisoner is seeking a writ of certiorari in the U.S. Supreme Court (or the disposition of any petition that actually 

is filed). AEDPA further suspends the running of that one 

year for state prisoners who seek state collateral relief. See 28 

U.S.C. § 2244(d)(2). That suspension lasts, however, only for 

the period when the state courts are considering the case; it 

does not include the time during which certiorari may be 

sought in the U.S. Supreme Court (or, if sought, ruled upon). 

See Lawrence v. Florida, 549 U.S. 327, 332 (2007). The latter 
4 No. 12-1598

rule is different for federal prisoners who seek collateral relief. See Clay v. United States, 537 U.S. 522, 525 (2003). 

Because of a quirk of Wisconsin procedure, the Wisconsin courts may conduct direct review of a conviction simultaneously with a post-conviction petition. That is what happened in Socha’s case. But the existence of the postconviction aspect of the case does nothing to detract from 

the rule found in section 2244(d)(1), under which the limitation period applicable to a petitioner such as Socha does not 

begin to run until the date his judgment becomes final by the 

expiration of time for seeking direct review (including certiorari). See 28 U.S.C. § 2244(d)(1) (“The limitation period shall 

run from the latest of ... .”); Lawrence, 549 U.S. at 333 (quoting Clay, 537 U.S. at 528 n.3) (stating that the direct review to 

which section 2244(d)(1) refers includes the time for seeking 

certiorari). 

In Socha’s case, the only point to make about section 2244(d)(2) is that it never came into play. It could not 

extend the date on which his time to file began to run beyond what section 2244(d)(1) provided—90 days after the 

Wisconsin Supreme Court denied review—because it did 

not follow the direct-review phase of the case. But the fact 

that it was proceeding simultaneously with direct review 

does not mean that it somehow deleted time to which Socha 

was otherwise entitled under section 2244(d)(1). Under that 

provision, Socha’s one-year period started on the date on 

which he could no longer seek certiorari on his direct appeal: 

July 16, 2007.

Socha’s efforts to file a petition within one year of that 

date were hampered at every turn, through no fault of his 

own. Many of the problems he encountered stemmed from 
No. 12-1598 5

his inability for more than a year despite persistent requests 

to obtain his case file from the public defender who had represented him at trial, Joseph Sommers. The lack of access to 

his file seriously impeded his ability to raise the two arguments he wished to press: ineffective assistance of counsel 

and withholding of exculpatory evidence. Effectiveness of 

counsel is something that must be evaluated on the basis of 

the record as a whole. See Rompilla v. Beard, 545 U.S. 374, 393 

(2005) (prejudice aspect of ineffectiveness of counsel evaluated on record as a whole); Strickland v. Washington, 466 U.S. 

668, 690 (1984); Hardamon v. United States, 319 F.3d 943, 948 

(7th Cir. 2003). A claim under Brady v. Maryland, 373 U.S. 83 

(1963), similarly requires an evaluation of the record as a 

whole. See, e.g., Banks v. Dretke, 540 U.S. 668, 691 (2004) 

(“[T]he three components or essential elements of a Brady 

prosecutorial misconduct claim [are] ... [t]he evidence at issue must be favorable to the accused ... ; that evidence must 

have been suppressed by the State ... ; and prejudice must 

have ensued.”). Prejudice exists if the suppressed evidence 

was material, id., and materiality requires an assessment of 

the entire record, id. at 698. All of this is to say that without 

his file, Socha had no hope of raising a plausible argument 

on either ground. 

Socha first wrote to Sommers on May 4, 2007, to ask that 

his case file be sent to his sister, Barbara Putnam. (By then, 

Sommers was no longer representing him.) Socha wrote 

again withdrawing that request on July 3, explaining that he 

was seeking representation from the Wisconsin Innocence 

Project. He anticipated that it would be easiest for the Project 

to pick up the record directly from Sommers’s office, should 

it choose to represent him. On July 9, he wrote to the Innocence Project and asked it to take up his case.
6 No. 12-1598

After hearing nothing from either Sommers or the Innocence Project for two months, Socha wrote again to Sommers 

on September 16 and reinstated his earlier request that 

Sommers send his case file to Putnam. Sommers never 

acknowledged the letter. Socha wrote again on February 19, 

2008, with another plea for the file. Perhaps sensing that 

time was running out, Socha sent off another letter to Sommers on March 8, this time directing Sommers to send his 

case file directly to him at the Green Bay Correctional Institution, where he was serving his sentence. The silence continued. 

Fed up, Socha next wrote directly to Kenneth Lund, the 

Attorney Manager at the Office of the State Public Defender; 

Lund wrote a letter to Sommers on April 11 reminding him 

that Socha was entitled to his case file. This intervention 

spurred Sommers to take a rather bizarre action: he sent a 

letter to Putnam on April 29 indicating that he would make 

the file available to her, but only at his home rather than his 

office, “to make things more convenient.” He did so in the 

face of Socha’s explicit directive to send the file directly to 

him in the prison rather than to Putnam, and despite the fact 

that Putnam had not been involved in any of the correspondence between Socha, Sommers, and Lund. Putnam did 

not respond to Sommers’s letter.

With his file still held hostage at his former attorney’s office, Socha began to look for alternative ways to complete a 

habeas corpus petition. He found another inmate, Ronald 

Wagner, who was willing to help. Wagner wrote to the clerk 

of the Forest County Circuit Court on April 25 and requested 

court files from both Socha’s case and those of his co-
No. 12-1598 7

defendants. He also requested transcripts in June; they drifted into Socha’s possession in September. 

In mid-May the Wisconsin Innocence Project wrote to Socha to inform him that it had chosen not to represent him. 

That same month, Socha again wrote to Lund and asked that 

the case file be sent directly to the prison. This time, Lund 

took matters into his own hands, found the file, and mailed 

it to Socha; on June 6, 2008, Socha received two boxes containing his case materials. They were in such disarray, he 

said, that “it was like someone threw them up in the air in a 

windstorm.”

At the time Socha received his file, he was being held in 

administrative segregation within the prison. This prevented 

him from using its main law library; he was relegated instead to the “Segregation Law Library.” According to Socha, 

the entire “library” consisted of two computers with spotty 

internet access. The computers were shared by 250 inmates. 

Socha was allowed to visit this room for 80 minutes every 

two weeks. He could not bring legal materials back to his 

cell because he was unable to pay for photocopies. The prison’s logs show that Socha used the Segregation Library 

several times in May, once in June, and not at all in July, but 

he contends that the prison keeps records only of those times 

a prisoner was granted access to the library and not when a 

request was denied. Socha further alleges that prison officials would not grant him priority access to the library because no court document explicitly showed that he had a 

pending filing deadline. 

At any rate, Socha realized that he was not going to be 

able to meet his July 16, 2008, filing deadline. On July 15, 

2008, therefore, he filed a document in the Eastern District of 
8 No. 12-1598

Wisconsin that he titled a “Motion to Extend Deadlines for 

Petitioner’s Federal Habeas Corpus Petition 28 U.S.C. 

§ 2254.” That ex parte motion was assigned to Judge Stadtmueller, who on September 19, 2008, granted Socha an extra 

90 days to file his petition and fixed a new deadline of December 19, 2008. Socha later filed another motion requesting 

more time to collect additional documents; that motion was 

denied by Judge Griesbach. Socha finally filed his petition on 

November 19, 2008, a month before the deadline imposed in 

Judge Stadtmueller’s order. In it, as planned, he asserted 

claims of ineffective assistance of counsel and failure to disclose exculpatory evidence, among others.

The district court, now in the person of Judge Randa, denied Socha’s petition on June 15, 2011, on the ground that it 

was untimely under 28 U.S.C. § 2244(d). Despite the fact that 

Socha had sought additional time before July 16, the fact that 

Judge Stadtmueller had granted his request for an extension, 

and the fact that he filed well within the new deadline, Judge 

Randa dismissed on the ground of untimeliness. He took the 

position that Judge Stadtmueller lacked jurisdiction to enter 

the order because no case or controversy was pending before 

the court when the motion was filed. He also disagreed with 

Judge Stadtmueller’s decision on the merits.

On appeal from that order of dismissal, we reversed and 

remanded for reconsideration of the timeliness of Socha’s 

petition. See Socha I, 621 F.3d at 673. Applying the Supreme 

Court’s then-recent holding in Holland v. Florida, 560 U.S. 631 

(2010), which held that the AEDPA statute of limitations defense is nonjurisdictional and therefore subject to equitable 

tolling, id. at 645, we concluded that the district court had 

acted too hastily in dismissing Socha’s petition solely be-
No. 12-1598 9

cause it was filed more than one year after his conviction became final. We noted that there is nothing untoward about a 

motion filed in conjunction with a soon-to-be-launched habeas corpus petition. We then mapped out several possibilities for the court to consider on remand, any one of which 

would allow Socha to have his petition heard on the merits: 

that Socha’s motion might be viewed as an incomplete but 

timely petition that could be supplemented later; that the 

statute of limitations should be equitably tolled; or that the 

State should be equitably estopped from asserting the limitations defense. Socha I, 621 F.3d at 671–72.

On remand, the district court held firm to its earlier decision. It held that Socha’s pre-filing motion could not be construed as a petition because it omitted any grounds for relief 

and said nothing further about Judge Stadtmueller’s action 

based on that motion. It declined to apply equitable tolling 

because it was not persuaded that Socha had been sufficiently diligent, and it found that equitable estoppel was inappropriate because the State had not acted intentionally to 

prevent Socha from filing on time.

II

Before we turn to the district court’s order, we must address two preliminary issues: why we have concluded that 

Socha’s time to file started in July 2007; and whether, as the 

state argues, we lack jurisdiction because we somehow “relinquished the mandate” ten weeks before we granted Socha’s certificate of appealability and abusively “recalled the 

mandate” when we granted the certificate of appealability.

Time to File. In Lawrence v. Florida, the Supreme Court 

considered the question “whether a state application is still 
10 No. 12-1598

‘pending’ when the state courts have entered a final judgment on the matter but a petition for certiorari has been filed 

in this Court.” 549 U.S. at 329. In a case involving state postconviction relief, the Court held that it is not. It observed 

that a natural reading of 28 U.S.C. § 2244(d)(2), which addresses post-conviction or other collateral relief, shows that 

“the statute of limitations is tolled only while state courts 

review the application.” Id. at 332. It then explained why in 

that circumstance the certiorari process falls outside that period:

This Court is not a part of a “State’s post-conviction 

procedures.” State review ends when the state courts 

have finally resolved an application for state postconviction relief. After the State’s highest court has issued its mandate or denied review, no other state avenues for relief remain open. And an application for 

state postconviction review no longer exists. All that 

remains is a separate certiorari petition pending before a federal court. The application for state postconviction review is therefore not “pending” after the 

state court’s postconviction review is complete, and 

§ 2244(d)(2) does not toll the 1–year limitations period 

during the pendency of a petition for certiorari.

Id.

Direct review is another matter; if a person decides not to 

seek post-conviction relief, then the tolling afforded by section 2244(d)(2) never applies. A prisoner seeking federal habeas corpus relief immediately after direct review looks to 

section 2244(d)(1)(A) for the date on which his one-year period begins to run. That section refers to “the date on which 

the judgment [of the state court] became final by the conclu-
No. 12-1598 11

sion of direct review or the expiration of the time for seeking 

such review.” 28 U.S.C. § 2244(d)(1)(A). The “time for seeking” direct review, the Court reaffirmed in Lawrence, “includes review by this Court.” 549 U.S. at 333. 

Wisconsin allows a criminal defendant to make a postconviction motion immediately after sentencing. See Wis. 

Stat. Ann. §§ 809.30; 974.02. (A different statute, Wis. Stat. 

Ann. § 974.06, allows the filing of a motion for postconviction relief after the time for appeal or post-conviction 

remedy under section 974.02 has expired, but only if the issue raised could not have been presented in a 974.02 motion. 

See Wisconsin v. Escalona-Naranjo, 517 N.W.2d 157, 159 (Wis. 

1994).) That is how Socha wound up with a hybrid opinion 

from the Wisconsin Court of Appeals, the last state court to 

address the merits of his case. We see nothing in either the 

statute or Lawrence to suggest that the one-year period for 

seeking habeas corpus relief after direct review must be 

shortened just because the petitioner was simultaneously pursuing state post-conviction relief. The limitations period 

does not begin to run for any state prisoner until the time for 

direct review is complete. Since Socha did not pursue state 

post-conviction relief after his direct appeal became final, his 

time to file was governed by section 2244(d)(1)(A), which 

gave him until July 16, 2008.

Mandate. The other preliminary issue concerns our mandate—or it would, if this were anything but a frivolous argument from the state. We readily concede that it would indeed be problematic if we had acted on our own to recall the 

mandate, as the state says we did. The Supreme Court has 

said that “where a federal court of appeals sua sponte recalls 

its mandate to revisit the merits of an earlier decision deny-
12 No. 12-1598

ing habeas corpus relief to a state prisoner, the court abuses 

its discretion unless it acts to avoid a miscarriage of justice as 

defined by our habeas corpus jurisprudence.” Calderon v. 

Thompson, 523 U.S. 538, 558 (1998). But that is not what happened in this case.

The confusion, to the extent that there was any, arose as 

follows. When the district court dismissed Socha’s petition 

on remand, it initially granted his motion for a certificate of 

appealability—the critical document someone who wishes to 

appeal from the denial of a petition for a writ of habeas corpus must obtain, either from the district court or the court of 

appeals. See 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b). When 

that certificate arrived in this court, we vacated it in an order 

issued on January 20, 2012, because the district court had 

failed to indicate in what way Socha had made a substantial 

showing of denial of a constitutional right. See 28 U.S.C. 

§ 2253(c)(2); Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 

2004). On February 9, we issued an order declining to reconsider that decision. At that point, the case returned to the 

district court with the certificate of appealability vacated. No 

notice of appeal had ever been filed, and so jurisdiction over 

the case had never transferred to the court of appeals.

The ball was then back in the district court, which was 

free either to issue a new certificate of appealability that appropriately identified at least one substantial constitutional 

issue, or to deny the requested certificate. The district court 

chose the latter option and entered a second amended judgment on February 27 that dismissed the petition and denied 

a certificate of appealability. Socha then applied to this court 

for a certificate, and we granted it, recognizing that the same 

substantial constitutional issues that we identified as under-
No. 12-1598 13

lying his first appeal in 2010 (ineffective assistance of counsel and withholding of exculpatory evidence by prosecutors)

are still present in the case and support the certificate.

If we were to accept the state’s argument, the district 

court’s amended judgment of February 27 would be unappealable, and the district court would stand as the final arbiter of Socha’s case. That is not, however, what happens 

when this court takes the routine action of vacating a prior 

order or judgment of a district court and remanding for further proceedings. The certificate of appealability was properly granted and this case is properly before us.

III

As we noted earlier, after taking a second look at the request for an extension of time that Socha filed on July 15, 

2008, the district court concluded that it could not serve as 

the actual petition for a writ of habeas corpus. His document 

focused exclusively on the need for more time; it did not reveal any reasons justifying relief. Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District 

Courts sets forth a number of requirements for a petition. 

Among others, it must specify all the grounds for relief 

available to the petitioner and state the facts supporting each 

ground. We are satisfied that the district court’s reading of 

Socha’s July 15 document is a fair one, and that even a generous reading of this document falls so short of Rule 2(c) that 

it cannot be accepted as the petition itself. That disposes of 

the only theory under which Socha’s petition might have 

been timely.

The district court also found that there were no grounds 

for equitably estopping the state from asserting a timeliness 
14 No. 12-1598

defense. Equitable estoppel, it noted correctly, applies to a 

limitations period when a party takes active steps to prevent 

an adversary from suing on time. Cada v. Baxter Healthcare 

Corp., 920 F.2d 446, 450–51 (7th Cir. 1990). The only active 

step to which Socha points, however, is the state’s decision 

to place him in administrative segregation. (Socha also complains about his minimal access to the library, which is the 

kind of impediment that may also be analyzed under equitable estoppel. See Estremera v. United States, 724 F.3d 773, 

777 (7th Cir. 2013).) Neither the segregation argument nor 

the library argument (if it is properly before us) is enough, 

however. As the district court pointed out, without some evidence that the officials who moved him to segregation or 

monitored his use of the library knew that they were impeding his effort to file a petition, it is impossible to characterize 

those moves as expressly designed to prevent a timely petition. 

That leaves Socha’s argument for equitable tolling. A petitioner “is entitled to equitable tolling only if he shows (1) 

that he has been pursuing his rights diligently, and (2) that 

some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted). It is the petitioner’s burden to establish both of these points. See Tucker v. Kingston, 538 F.3d 732, 

734 (7th Cir. 2008). The realm of equitable tolling is a “highly 

fact-dependent area” in which courts are expected to employ 

“flexible standards on a case-by-case basis.” Socha I, 621 F.3d 

at 672 (citing Holland, 560 U.S. at 650–52). That said, tolling is

rare; it is “reserved for extraordinary circumstances far beyond the litigant's control that prevented timely filing.” Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004) (internal 

quotation marks and alterations omitted).
No. 12-1598 15

The state suggests that equitable tolling is a chimera—

something that exists only in the imagination. It asserts that 

we observed six years ago that we had never as of then approved equitable tolling of a habeas corpus petition. See 

Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008). We are 

not free, however, to regard equitable tolling as something 

that exists in name only; this would render the Supreme 

Court’s explicit approval of equitable tolling in Holland a

nullity. See also McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 

(2013). We have properly enforced the high bar that the 

Court has erected in this area, but by the same token we 

have not set that bar so high as to make equitable tolling impossible. To the contrary, we recognize that its availability 

depends on the facts. For example, in Davis v. Humphreys, we 

held that mental incompetence could support equitable tolling of the section 2244(d) limitations period, and we remanded to the district court for a more nuanced evaluation 

of the petitioner’s mental capabilities. 747 F.3d 497, 498–99

(7th Cir. 2014). In Weddington v. Zatecky, we stated that the

intentional confiscation of a prisoner’s habeas corpus petition and related legal papers by prison officials is extraordinary as a matter of law. 721 F.3d 456, 464–65 (7th Cir. 2013)

(quoting Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000)). 

We remanded in Weddington for further factual findings. Cf. 

Carter v. Hodge, 726 F.3d 917, 919 (7th Cir. 2013) (ordering 

equitable tolling of time under FED. R. APP. P. 4 for taking a 

criminal appeal where court erroneously told prisoner that 

final judgment had not yet been entered against him). 

The question before us is not whether equitable tolling is 

a theoretical possibility for Socha; it is. The issue is whether, 

on these facts, the district court abused its discretion when it 

concluded that Socha failed diligently to pursue his rights 
16 No. 12-1598

and that extraordinary circumstances did not prevent his 

timely filing.

A

We take up the question of extraordinary circumstances

first, because Socha’s diligence is best evaluated in light of 

that broader picture. Chief among these circumstances is 

Socha’s lack of access to his legal file throughout almost the 

entire one-year period he had under the statute, until just a 

month before he asked the district court for help. When he 

received his file on June 6, 2008, he had only 40 days left to 

file. Socha had been begging Sommers for the file since May 

4, 2007, less than three weeks after the Wisconsin Supreme 

Court turned down his petition for review. His ability to 

monitor his case was compromised by his segregated status 

in prison and his consequent limited access to the prison 

library. (Even if these circumstances are not enough to 

support equitable estoppel, they shed light on the question 

whether Socha was responsible for the delay or if instead he 

demonstrated the necessary diligence for equitable tolling.) 

The state quibbles over whether Socha was denied access on 

some occasions, but it has never contradicted Socha’s 

contention that the most he could hope for was 80 minutes 

in the library every two weeks, and that he could not bring 

legal materials back to his cell for want of funds to make 

photocopies. Finally, it is worth noting that Socha was 

unrepresented for the entire period relevant to our inquiry.

To the extent that this may have led him to err by filing only 

a motion for an extension of time just before his deadline 

rather than a full-blown petition, it was a pleading error that 

must be viewed favorably to him. Cf. Haines v. Kerner, 404 

U.S. 519, 520–21 (1972) (pro se litigants are held to less 
No. 12-1598 17

stringent standards than those with lawyers). And in any 

event, Socha’s pro se status means that he cannot be held 

responsible for Sommers’s tardiness in transmitting the file: 

counsel’s misconduct is attributed to a client, but noncounsel’s conduct is not. 

The state tries to pick off each of the circumstances Socha 

identifies, explaining why in isolation it is not enough to justify equitable tolling. Incarceration alone, for example, does 

not qualify as an extraordinary circumstance. Johnson v. 

McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001). That would 

make no sense, since it is actually a requirement for habeas 

corpus relief that the petitioner be in custody. See 28 U.S.C. 

§ 2254(a); see also Maleng v. Cook, 490 U.S. 488, 490 (1989) 

(per curiam). Placement in administrative segregation alone 

is also not enough by itself; such a rule would hamstring a 

prison’s ability to maintain order. See, e.g., Hizbullahankhamon v. Walker, 105 F. Supp. 2d 339, 344 (S.D.N.Y. 2000), aff’d

255 F.3d 65, 75 (2d Cir. 2001). Like incarceration, however, 

segregation may serve as a piece of the puzzle. We are not 

worried that prisoners will vie to be put in segregation just 

so that they can secure extensions of the one-year limitations 

period.

Similarly, lack of representation is not on its own sufficient to warrant equitable tolling, nor is a petitioner’s lack of 

legal training. Prisoners do not have a constitutional right to 

the assistance of counsel in post-conviction collateral attacks. 

See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). We cannot 

give the label “extraordinary” to a trait that applies to 92

percent of prisoners filing petitions. See Table C-13: Civil Pro 

Se and Non-Pro Se Filings, by District, during the 12-Month Period Ending September 30, 2013, http://www.uscourts.
18 No. 12-1598

gov/uscourts/Statistics/JudicialBusiness/2013/appendices/C1

3Sep13.pdf (last visited Aug. 14, 2014). Nor is lack of legal 

knowledge, another feature shared by the overwhelming 

majority of prisoners, by itself enough to justify equitable 

tolling. Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013).

The statutory deadlines would be meaningless if either of 

these common problems were enough to override the normal rules.

Poor representation by an attorney calls for a more nuanced appraisal. Defects in performance, whether through 

the attorney’s own fault or attributable to extenuating circumstances, do not inevitably support equitable tolling, but 

they are relevant. The Supreme Court has identified some 

types of errors (such as miscalculation of a deadline) that do 

not warrant relief; it calls them “garden variety” claims of 

excusable neglect, meaning that these errors are too common 

to be called “extraordinary.” Holland, 560 U.S. at 651–52 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). 

An attorney’s incapacity is also not necessarily a ground for 

equitable tolling. Modrowski v. Mote, 322 F.3d 965, 968 (7th 

Cir. 2003). The important thing is the full picture with which 

an inmate is contending. Here, it is notable that Sommers 

was not Socha’s attorney for the period relevant to our inquiry; his representation terminated with the conclusion of 

Socha’s direct appeal, and thus he had no legal authority to 

act on Socha’s behalf. His failure to turn over Socha’s file, 

then, was not “garden variety” neglect of a client, but rather 

a rarer instance where the materials necessary to conducting 

one’s legal affairs were being unjustifiably held by a person 

who had no ability to use them. (Indeed, Sommers was on 

thin ice ethically speaking, given Wisconsin Rule of Professional Conduct 1.16(d), applicable in the Eastern District of 
No. 12-1598 19

Wisconsin, which requires a lawyer who has terminated representation to take reasonable steps to protect a client’s interests, including specifically surrendering papers and property to the client.)

It does not matter that one could look at each of the circumstances encountered by Socha in isolation and decide 

that none by itself required equitable tolling. The mistake 

made by the district court and the state was to conceive of 

the equitable tolling inquiry as the search for a single trump 

card, rather than an evaluation of the entire hand that the 

petitioner was dealt. In Holland, the Supreme Court disapproved the use of such a single-minded approach. It wrote

instead that a person’s case is to be considered using a “flexible” standard that encompasses all of the circumstances that 

he faced and the cumulative effect of those circumstances. 

Similar cases may shed some light on the claim, but “courts 

exercise judgment in light of prior precedent ... with awareness of the fact that specific circumstances, often hard to 

predict in advance, could warrant special treatment in an 

appropriate case.” Holland, 560 U.S. at 650.

The hurdles Socha faced were nearly insurmountable, if 

he hoped by July 16 to create an adequate petition that met 

the criteria of Rule 2(c) of the habeas corpus rules. For nearly 

90% of his allotted one year, Socha was without access to 

any of the documents pertaining to his legal proceedings

through no fault of his own. He made repeated requests for 

the documents both to his former lawyer and eventually to 

that lawyer’s superior. He tried to secure new counsel, who 

would have secured the documents for him. The district 

court faulted Socha for taking no alternative measures while 

his file languished in the possession of his former attorney, 
20 No. 12-1598

but this conclusion is misguided. The state concedes in its 

brief that Socha began seeking alternative avenues to file for 

federal relief while he was still without his file; for example, 

he worked with inmate Wagner to obtain some documents 

directly from the state court. Even if he had not done so, it is 

unclear what more Socha could have done without access to 

his file. Even the most seasoned attorneys do not, and 

should not, draft motions, memoranda, or briefs without access to the basic files underlying the actions. They likely 

would face discipline if they attempted to reconstruct the 

case from memory alone. To expect Socha to have a photographic memory permitting him to write a petition without 

his file is unrealistic.

After Socha finally received his file, new obstacles stood 

in his way: limited library access and the rapid expiration of 

time. Even ignoring his allegations about the severe limitations on his library access and limiting our consideration to 

the uncontroverted facts (eighty minutes of access every two 

weeks, two computers for 250 inmates, and the inability to 

take legal materials back to his cell), it still would have been 

nearly impossible for Socha to review the disorganized file, 

gather background legal materials, and craft a meaningful 

petition before the deadline. (The state tells us that Socha 

was not in segregation for much of the year, but the record 

shows that he was in segregation for the entire period between the receipt of his files and the filing deadline.) At 80 

minutes every other week, the most Socha could have gotten 

was about four hours of library time in the 40 days he had 

before his petition was due (assuming that he had three sessions over five weeks, at 80 minutes each). He had little to no 

opportunity to work with his materials in his cell. 
No. 12-1598 21

Arguing against self-interest, the state appears to urge 

that inmates should feel free to file any piece of paper with 

the label “habeas corpus petition,” and that should be 

enough to satisfy the statute of limitations. This is not the 

incentive we wish to create in a system that is already burdened with high filing levels. Under the state’s proposed 

rule, the number of prisoners filing skeletal petitions just before the deadline would balloon, and one of two scenarios 

would play out: courts would be forced to send all of these 

petitions back for further factual allegations, providing an 

effective end-run around the one-year deadline in a large 

number of cases, or they would end up rejecting a large percentage of these petitions for being facially inadequate. In 

either case, we would be surprised to see the state taking the 

“anything goes” position it does here. It naturally would 

want the right to complain about the inadequacy of a proposed petition. If so, then a petitioner such as Socha is right 

to want to review the file and conduct his research before 

filing, so that he can avoid an immediate dismissal. See Estremera, 724 F.3d at 776 (“[F]iling a petition without research 

is risky: a good claim may be lost as undeveloped, or a bad 

claim may be advanced and rejected, blocking relief on a 

good claim later.”).

Finally, Judge Stadtmueller’s order granting Socha’s motion to extend his time to file deserves brief mention. Although just by a day, Socha approached the court before his 

deadline expired, not after; that fact alone sets his case apart 

from the great majority of those involving untimely filings. 

As we said the last time we considered this case, “the facts 

related to equitable tolling were before the court” at the time 

Judge Stadtmueller granted the motion, and there was no 

bright-line bar on his actions. See Socha I, 621 F.3d at 671–72. 
22 No. 12-1598

Judge Stadtmueller need not have granted the motion to extend time, but he did, after deciding that equitable tolling 

was warranted. While the decision to apply equitable tolling 

is within a district court’s discretion, in general it is best if a 

second judge does not revisit that discretionary call after 

parties have relied on it. Taking everything into account, we 

conclude that the circumstances Socha faced were extraordinary, and that the district court’s finding to the contrary was 

an abuse of discretion.

B

We now turn to the question whether Socha diligently 

pursued his rights during the period from July 16, 2007 (the 

date when his time to file began to run), to November 19, 

2008, when he filed in compliance with Judge Stadtmueller’s 

order. We are convinced that he did. Beginning long before 

his one-year period expired and continuing at regular intervals until he succeeded, Socha repeatedly wrote Sommers 

requesting access to his file. As time passed, Socha responded to changed circumstances, hoping to find some means of 

transmittal that Sommers would accept. When Sommers 

failed to act, Socha figured out who was in charge at the 

public defender’s office and pleaded with him for help. On 

the second try, that worked: Lund eventually extracted the 

materials from Sommers and sent them directly to Socha. 

Once in possession of his materials, Socha used what little 

library time he could get to organize and read his file and

work on his petition. 

Socha’s case is far from the typical one. Unlike the many 

cases in which a tardy petitioner puts nothing before the 

court and only later asks for equity to be exercised in his favor, Socha alerted the court before the deadline arrived and 
No. 12-1598 23

sought to preserve his rights. He then filed a completed petition well within the additional time period he was granted—

indeed, a month before the expiration of the “extra” time 

that he believed he had.

The district court faulted Socha for his “complete failure 

to develop a fallback plan.” The court did not elaborate on 

what such a plan would have looked like, and we cannot 

think of one that takes into account the particulars of Socha’s 

case. The notion that Socha was simply waiting around for 

his file to arrive is not consistent with the record. Even the 

state admits that “Socha was in fact busy working on his 

case in prison long before his petition was due,” as he was 

“receiving representation from another inmate, Ronald 

Wagner, beginning in April, 2008.” Wagner’s attempts to obtain Socha’s record through alternative means ultimately 

proved fruitless, but the fact that Socha was working with 

Wagner to complete his petition beginning in April further 

demonstrates that he was diligently pursuing his rights.

We do not put much stock in the district court’s conclusion that Socha did not need all of the time he took because 

his habeas corpus petition “parroted” claims that he had 

raised in the state courts. It would have been difficult to do 

even that much without the papers in front of him. And Socha would have run into a different wall if he had tried to 

present claims that he failed to exhaust in the state courts. It 

is hazardous to conjecture about the amount of time a filing 

should have taken based on the end result; sometimes it 

takes longer to review the possibilities, discard the least 

promising, and write a concise pleading than it would to 

write a kitchen-sink petition. Perhaps a review of his entire 

record indicated to Socha that he was best served by repeat-
24 No. 12-1598

ing claims made by a member of the bar, instead of trying to 

craft legal arguments from scratch. He could not have 

known until he had the chance to review his file. The circumstances as a whole leave no room, we conclude, for a 

finding that Socha was not diligent.

IV

Equitable tolling is rare, but so are the facts of this case.

Based on Socha’s repeated efforts to obtain an unjustifiably 

withheld file, the minimal time he had in which to complete 

a petition afterward, and the initial judicial determination 

that tolling was appropriate, we conclude that it was an 

abuse of discretion to deny tolling of the AEDPA deadline. 

We reach this conclusion using the flexible, fact-specific 

standard described by the Supreme Court in Holland. In light 

of all the circumstances, Socha is entitled to equitable tolling 

of the one-year deadline for his habeas corpus petition. 

The judgment of the district court is REVERSED and the 

petition is REMANDED for further proceedings consistent 

with this opinion. As the only issue that has been adjudicated thus far is the timeliness of the petition, we stress that our 

opinion is limited to that point and should not be understood as restricting any other arguments either the state or 

Socha wishes to raise.