Obreight v. Foster

Dist. Ct. did not err in dismissing as untimely defendant’s habeas petition challenging his 1999 Wisc. sexual assault convictions, where said petition was initially filed prior to defendant exhausting his state remedies, and where defendant had failed to file state habeas petition by March, 2003 deadline for doing so established by Dist. Ct. Defendant argued that he was entitled to equitable tolling, where he informed retained counsel of said deadline, and where counsel had disregarded said deadline based on erroneous belief that federal deadline for filing habeas petition had also been extended. Ct., though, found that defendant was not entitled to equitable tolling since: (1) defendant did not file state habeas petition until two years after deadline set by Dist. Ct.; and (2) mistake made by retained counsel was of “garden variety” dealing with miscalculation of filing deadline, which was insufficient to support application of equitable tolling. Moreover, defendant failed to establish his own due diligence during two-year gap between time his counsel withdrew from case and defendant’s filing of state habeas petition.