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The 7th Circuit Court of Appeals recognized that a man sentenced to an aggregate term of 72 years in prison was given erroneous legal advice to postpone the filing of his petition for a writ of habeas corpus, but affirmed a district court’s ruling to dismiss the petition because it was filed more than one year after the man’s conviction became final.
According to court records, Marcus Conner was charged in Elkhart Superior Court with three counts of felony drug dealing and maintaining a common nuisance after he sold cocaine on three occasions to two confidential informants at his home, which was located within 1,000 feet of a youth program center.
After a two-day trial, a jury convicted him on all charges, and because Conner qualified as a habitual offender, he was subject to an additional period of incarceration of up to 30 years.
He was sentenced to an aggregate term of 72 years in prison.
Conner was arrested and detained on Sept. 19, 2012, and he was formally charged on Sept. 24, 2012. He remained in custody pretrial, but the trial did not commence until July 20, 2015 — a delay of 1,029 days from the charging date, and 1,034 days from his arrest, or nearly three years.
The Court of Appeals of Indiana’s opinion in the case noted the nine continuances that pushed back the trial date.
Conner was represented by counsel at all times in the long run-up to the trial, but with the exception of one motion for discharge pursuant to Indiana Criminal Rule 4 filed by defense counsel in February 2015, his counsel did not otherwise object to the multiple continuances. And at no time did trial counsel ever make a Sixth Amendment objection to the pretrial delays.
For his part, Conner voiced multiple, consistent objections to the delays and attempted in one instance to file his own Rule 4 discharge motion. But those objections were rejected out of hand on the ground that Conner was represented by counsel.
On direct appeal from Conner’s conviction, his counsel raised two issues: whether the trial court’s findings of docket congestion necessitating multiple delays of the trial date were clearly erroneous, and whether Conner’s Sixth Amendment right to a speedy trial was violated.
The Indiana Court of Appeals found no clear error in the docket-congestion findings, and thus no violation of Criminal Rule 4. It found that Conner had forfeited his constitutional speedy trial claim by not raising any Sixth Amendment objections in the trial court, and the court did not reach the merits of that claim.
Conner then commenced a post-conviction proceeding — initially pro se, and later with the assistance of the Indiana public defender — in which he argued that his trial lawyers were ineffective for having never objected that the multiple delays in bringing him to trial were depriving him of his Sixth Amendment right to a speedy trial.
The post-conviction court concluded that because the Sixth Amendment claim had been raised on direct appeal and decided adversely to Conner, res judicata precluded him from raising the claim a second time in the post-conviction proceeding.
Once the Indiana Supreme Court denied Conner’s petition for transfer — which it did on Sept. 24, 2020 — the state post-conviction proceedings were at an end.
Shortly before the Indiana Supreme Court denied review, public defender Michael Sauer, who was representing Conner in the post-conviction proceedings, initiated an email exchange with Michael Ausbrook, a habeas corpus practitioner who teaches habeas litigation at Indiana University’s Maurer School of Law.
Sauer initially wanted to know whether Ausbrook might be interested in representing Conner in connection with his anticipated habeas petition: The Indiana public defender’s office did not represent clients in federal habeas proceedings, and Sauer had no experience with such proceedings.
Ausbrook thought that the Sixth Amendment speedy trial claim might be worth pursuing in a petition for certiorari before Conner sought relief in habeas.
Conner had 90 days from the date of the Indiana Supreme Court’s order in which to file a petition, and Sauer wondered whether the one-year habeas clock would remain paused during that period.
So he asked Ausbrook, again via email, “Does the habeas clock remain tolled for 90 days after transfer is denied, regardless of whether a cert[.] petition is ultimately filed?”
Ausbrook replied: “The clock only remains stopped if a cert. petition is actually filed. It’s not like after a direct-appeal decision when you get the 90 days regardless of whether a cert. petition is filed.”
According to the 7th Circuit, this advice was wrong.
On Feb. 20, 2021, Sauer and Ausbrook filed a petition of certiorari on Conner’s behalf. The U.S. Supreme Court denied the petition on April 26, 2021.
The next day, Sauer sent Conner a letter advising him of the denial and informing him that he had about 200 more days left on the one-year clock to file a habeas petition.
In fact, by that time, the one-year period for filing such a petition had already expired, according to the 7th Circuit.
With the help of a fellow inmate who worked in the prison law library, Conner prepared a pro se habeas petition and filed it on Aug. 4, 2021 — well within the 200-day period Sauer told him remained in which to file the petition, which would not have expired until November.
The U.S. District Court for the Southern District of Indiana dismissed the petition as untimely.
The district court considered whether Conner was entitled to equitable tolling of the statutory deadline but concluded that he was not.
The court acknowledged Conner had received erroneous legal advice but was not convinced that the mistaken advice rose to the level of an extraordinary circumstance that would warrant equitable tolling of the habeas deadline.
The district court observed, “Mr. [Conner] received bad advice, but nothing prevented him from conducting his own independent research and filing a pro se habeas petition within the one-year statute of limitations. [Conner] does not argue that he lacked access to legal materials or that some other circumstance outside his control prevented him from filing his habeas petition on time.”
The district court granted Conner a certificate of appealability on the equitable tolling issue.
The 7th Circuit supplemented the certificate to include the merits of Conner’s ineffective assistance claim premised on his trial counsel’s failure to invoke his Sixth Amendment right to a speedy trial. It also appointed counsel to represent Conner on appeal.
Judge Ilana Rovner wrote the opinion for the court.
Rovner acknowledged that the state conceded Conner had pursued his rights diligently: Notwithstanding his trial counsel’s failure to make a constitutional speedy trial objection, Conner did attempt to raise his speedy trial rights in the trial court, only to have his objections ignored because he was represented by counsel.
According to Rovner, Conner attempted to pursue those rights on direct appeal, but the appellate court found that he had forfeited his Sixth Amendment speedy trial claim because his lawyer never invoked the Sixth Amendment in the trial court.
Conner then attempted to vindicate his speedy trial rights by means of an ineffective assistance claim, which he pursued all the way through the post-conviction proceedings at each level of the Indiana courts, without success.
“The hurdle that Conner cannot surmount is the requirement that he identify some extraordinary circumstance that prevented him from filing a timely habeas petition,” Rovner wrote.
Rovner wrote that negligence on the part of the petitioner’s counsel, including counsel’s ignorance or miscalculation of a deadline or the failure to do sufficient legal research to ascertain the deadline, is ordinarily an insufficient basis in and of itself for equitable tolling, as it is not an external obstacle.
The one and only mistake Conner made in pursuing his claim of trial counsel ineffectiveness was to heed his post-conviction lawyer’s advice as to the timing of his habeas petition, Rovner wrote.
“In this case, however, Conner’s lawyer made a mistake, and as a matter of law, Conner must be saddled with that error. As a result, his habeas petition was untimely filed, and it was properly dismissed on that basis,” Rovner wrote, with the 7th Circuit affirming the district’s court decision.
Judges Thomas Kirsch and Candace Jackson-Akiwumi concurred.
The case is Marcus Conner v. Dennis Reagle, Warden, 22-1780.
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