                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-3799
RAYMOND POWELL,
                                           Petitioner-Appellant,
                               v.

CECIL DAVIS,
                                          Respondent-Appellee.
                         ____________
       Appeal from the United States District Court for the
       Northern District of Indiana, South Bend Division.
           No. 3:02cv0900 AS—Allen Sharp, Judge.
                         ____________
    ARGUED JANUARY 26, 2005—DECIDED JULY19, 2005
                    ____________



 Before POSNER, MANION, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Indiana prisoner Raymond Powell
is trying to mount a collateral attack under 28 U.S.C.
§ 2254 on his conviction for attempted murder. The under-
lying constitutional issue he would like to raise is a due
process challenge to the jury instructions that the trial
court gave. Before we can reach that question, however,
there is an antecedent procedural problem: whether
Powell’s § 2254 petition was filed beyond the time period
permitted by federal law. See 28 U.S.C. § 2244(d). The dis-
trict court concluded that it was indeed time-barred, and
dismissed the petition on that ground. This court certified
2                                               No. 03-3799

for appeal both the timeliness question and the due process
argument. We now affirm the dismissal of the § 2254
petition as untimely.


                             I
  Applying the required presumption that the state su-
preme court correctly recited the facts, see 28 U.S.C.
§ 2254(e)(1), we learn that the following events led to
Powell’s conviction. On February 14, 1996, a verbal alter-
cation between Aaron Jones and James Wright outside an
apartment complex escalated into gunfire. See Powell v.
State, 714 N.E.2d 624, 626 (Ind. 1999). When the shooting
stopped, Jones was injured and his friend, Marquise McVea,
was dead. Id. Jones identified Wright, Powell, and a third
man as the shooters. Id.
  Powell was charged with both the murder of McVea and
the attempted murder of Jones. At Powell’s trial, Jones
(testifying for the state) reported that the events unfolded
quickly. According to Jones, after he exchanged words with
Wright, Wright opened fire on him. McVea turned and ran
across the street, and Jones saw Powell “shooting straight
ahead” at McVea. Jones acknowledged that McVea had gone
to his nearby truck and pocketed a handgun just before the
melée started, but he insisted that McVea never drew the
weapon. Powell, 714 N.E.2d at 626. Importantly, Jones
denied that he himself was armed. Id.
   Throughout the proceedings, the state relied on two alter-
native theories in support of the attempted murder charge:
first, that Powell tried to shoot Jones himself, or second,
that he was responsible as the accomplice of Wright, the
actual shooter. At the close of the evidence, when the judge
instructed the jury on the accomplice theory, he failed to
state that a defendant cannot be found guilty of attempted
murder based on the acts of another without proof that he
himself formulated a specific intent to kill the victim.
No. 03-3799                                                3

Moreover, in returning its verdict, the jury was not required
to reveal which of the state’s two theories it had accepted.
The verdict said only that Powell was guilty of the murder
of Marquise McVea and the attempted murder of Aaron
Jones. The court sentenced Powell to consecutive terms of
62 years for the murder of McVea and 35 years for the
attempted murder of Jones.
   While Powell’s direct appeal to the state supreme court
was pending, the state disclosed to the trial court that
Jones had testified in a wholly unrelated trial that he did
have a gun on his person on the day of the shooting but that
he did not draw the weapon. Powell, 714 N.E.2d at 626.
Based on this allegedly newly discovered evidence, Powell
filed a motion whose legal nature was somewhat ambigu-
ous. It was captioned as a “Post-Conviction Petition,” but it
was then identified in the first paragraph as a “Belated
Motion to Correct Errors” arising from new evidence of
Jones’s “perjury.” After allowing the motion to be filed and
holding a hearing to consider it, the trial court denied
Powell’s request for a new trial. Id. Powell’s appeal from
this ruling was then consolidated with his direct appeal and
presented directly to the Supreme Court of Indiana. Id. at
626; see IND. APP. R. 56(A). The state supreme court
affirmed the trial court’s judgment on July 20, 1999. Powell,
714 N.E.2d at 630.
  A few months later, in a letter written in October 1999,
Powell’s counsel informed him of the state supreme court’s
decision and offered her view of the next steps available to
Powell. Counsel first explained: “[I]f you wish to further
pursue your case, you need to file for permission to file
Successive Petition for Post-Conviction Relief. You file this
with the Court of Appeals.” The letter then went on to tell
Powell of the one-year time limit for filing a petition for
federal habeas corpus relief. Counsel added that filing a
state petition would toll that one-year period.
4                                                No. 03-3799

  Despite counsel’s instruction to seek authorization to
proceed from the state appellate court, on March 31, 2000,
Powell filed a postconviction petition directly in the trial
court, challenging among other issues the trial court’s fail-
ure to address the element of specific intent to kill in the
attempted murder instruction that set forth the theory of
accomplice liability. In response to Powell’s request for
counsel, the postconviction court appointed a state public
defender. After the state answered Powell’s petition on
April 18, 2000, the postconviction court set a schedule for
discovery. Powell’s attorney then requested an indefinite
stay of the proceedings, explaining that his office required
him to work on cases in order of their filing dates, and he
had numerous clients with filing dates earlier than Powell.
The postconviction court granted the motion.
  Counsel then gave Powell the bad news that his case was
“on hold until I can get to it which will be awhile since I
have at least 23 unreviewed cases ahead of you.” Powell
concluded that he had to take the initiative, and so in
October 2000, he filed a pro se motion seeking access to
transcripts from his trial. After learning of Powell’s motion,
counsel asked whether Powell wished him to withdraw his
appearance. Powell chose to continue with counsel. In the
months that followed, with his petition still stayed, Powell
wrote to counsel several times about his case. Counsel
responded each time that he still had other cases to work on
before he could review Powell’s.
  Counsel never got to Powell’s case on his own. Instead,
two years after granting the indefinite stay, the postcon-
viction court requested status reports on the case from the
parties. In response, the state moved to dismiss the case for
lack of jurisdiction, asserting for the first time that the
captioned “Post-Conviction Petition” that Powell had filed
while his direct appeal was pending counted as a first post-
conviction petition. If that was correct, then under Indiana
law, the pending case was an unauthorized successive
No. 03-3799                                                   5

petition because Powell had never sought and received
permission to file it from the state appellate court. See IND.
P-C. R. 1 § 12; see Smith v. Walls, 276 F.3d 340, 344 (7th
Cir. 2002); Tinker v. Hanks, 255 F.3d 444, 445-46 (7th Cir.
2001). Counsel for Powell conceded that the state was
correct; accordingly, the postconviction court dismissed the
case for lack of jurisdiction on June 28, 2002. By now almost
three years had passed since the state supreme court
affirmed Powell’s convictions. Powell responded with a late
request to the state appellate court for permission to file a
successive postconviction petition raising the jury-instruc-
tion claim, but his application was denied on November 1,
2002, with the explanation that he “failed to establish a
reasonable possibility that he is entitled to postconviction
relief.”
   On December 4, 2002, Powell filed a pro se § 2254 petition.
In that petition, he asserted that the document he filed
during his pending direct appeal was (as the text indicated)
a “Belated Motion to Correct Errors,” which is permitted by
IND. P-C. R. 2 § 2, and not a first postconviction petition (as
the caption suggested). If it was the former, Powell argued,
his March 2000 petition should not have been dismissed as
a successive effort at postconviction relief. The district court
appointed counsel. Powell’s new lawyer conceded that
Powell’s federal petition was technically untimely because,
as the state insisted, the March 2000 submission was indeed
a second postconviction petition that had not been properly
filed under state law and thus did not toll the one-year
federal statute of limitations. See 28 U.S.C. § 2244(d)(2).
Counsel argued nevertheless that Powell’s circumstances
warranted equitable tolling for several reasons: (1) trial
counsel’s “ambiguous” instructions that filing a postcon-
viction petition would toll the federal one-year time period;
(2) the state public defender’s negligence in permitting the
March 2000 petition to languish; and (3) the failure of both
the state and the postconviction court to notice the apparent
6                                                No. 03-3799

jurisdictional problem with his March 2000 petition earlier.
The district court concluded that equitable tolling did not
apply and denied Powell’s § 2254 petition as untimely.


                             II
  Powell’s convictions became final on October 18, 1999,
after he chose not to petition the Supreme Court for a writ
of certiorari. See Anderson v. Litscher, 281 F.3d 672, 674-75
(7th Cir. 2002). From that point, Powell had one year to file
a § 2254 petition, unless something occurred to toll that
period. See 28 U.S.C. § 2244(d)(1)(A). The statute expressly
recognizes several such circumstances, including as perti-
nent here the pendency of a properly filed state postcon-
viction petition. See 28 U.S.C. § 2244(d)(2); Artuz v.
Bennett, 531 U.S. 4, 8 (2000); Gray v. Briley, 305 F.3d 777,
778-79 (7th Cir. 2002). In addition, three other statutory
exceptions may delay accrual of this statute of limitations.
28 U.S.C. § 2244(d)(1)(B), (C), (D), one of which bears on
Powell’s case. The one-year period starts running from “the
date on which [an] impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action.” § 2244(d)(1)(B);
see Williams v. Sims, 390 F.3d 958, 959-61 (7th Cir. 2004).
Finally, even after the Supreme Court’s recent decision in
Pace v. DiGuglielmo, 125 S. Ct. 1807 (2005), there may still
be room for equitable tolling of the limitations period in
compelling circumstances. See id. at 1815. Because Powell
waited until December 4, 2002, to file his § 2254 petition,
only tolling provisions recognized in the statute or equitable
tolling or estoppel can excuse his untimeliness.
  We first look to how the Indiana court treated the
March 2000 postconviction petition to decide whether
Powell’s March 2000 petition was “properly filed” under
§ 2244(d)(2) and thus tolled the normal one-year period. See
No. 03-3799                                                  7

Pace, 125 S. Ct. at 1810, 1814. The state postconvic-
tion court characterized Powell’s March 2000 petition as a
second petition filed without permission from the state
appellate court. This may not have been an inevitable con-
clusion, as a matter of Indiana law. See, e.g., Terrell v.
State, 745 N.E.2d 219 (Ind. 2001) (party wishing to raise
issue of newly discovered evidence while case pending on
appeal is obligated to file a Belated Motion to Correct Error
in trial court to preserve issue on appeal); Sceifers v. State,
663 N.E.2d 1191, 1192-93 (Ind. App. Ct. 1996) (distin-
guishing Belated Motion to Correct Error as a motion used
during a direct appeal as opposed to postconviction proceed-
ings). Nonetheless, we have no authority to second-guess a
ruling based on state law. See Vroman v. Brigano, 346 F.3d
598, 604 (6th Cir. 2003) (holding that federal court obliged
to accept state interpretation of law in response to claim
that state court was incorrect). Because an unauthorized
successive petition is not considered “properly filed” under
Indiana law, the one-year limit was not extended under
§ 2244(d)(2). Pace, 125 S. Ct. at 1814.
  Recognizing this obstacle, Powell turns to equitable rem-
edies to excuse the untimeliness of his § 2254 petition.
Notwithstanding the fact that the Supreme Court took a
strict approach to equitable tolling in Pace and rejected its
application there, Powell urges us to find that his case is
different. He points first to his public defender’s asserted
“misconduct” in handling his March 2000 postconviction
petition. Instead of seeking an indefinite stay based on his
office’s apparently rigid policies, counsel should have
checked first to see whether the petition was properly filed;
his failure to do so, in Powell’s view, amounted not just to
negligence but to misconduct. For a number of reasons,
however, this argument does not help him. First, of course,
whatever the rules in Indiana may be with respect to state-
provided counsel at the postconviction stage, as a matter of
federal law a person has no such right. See Pennsylvania v.
8                                                No. 03-3799

Finley, 481 U.S. 551, 555 (1987); Pitsonbarger v. Gramley,
141 F.3d 728, 737 (7th Cir. 1998). Second, “attorney mis-
conduct, whether labeled negligent, grossly negligent, or
willful, is attributable to the client” and thus is not a cir-
cumstance beyond a petitioner’s control that might excuse
an untimely petition. Modrowski v. Mote, 322 F.3d 965, 968
(7th Cir. 2003); see Johnson v. McCaughtry, 265 F.3d 559,
566 (7th Cir. 2001); Rouse v. Lee, 339 F.3d 238, 248-49 (4th
Cir. 2003) (en banc). Even before Pace, this court had
rejected applying equitable tolling to circumstances where
counsel directly misled a client that he filed a timely
petition. See Modrowski, 322 F.3d at 968. Counsel’s failure
to do any preliminary work on the case before securing
permission from the court to stay the proceedings was, at
most, either negligence or legal error; in neither case would
it warrant equitable tolling.
   In fact, counsel volunteered to withdraw from the case, in
light of his crowded schedule, and Powell declined the offer.
This choice, which was made competently as far as anything
in this record reflects, forecloses the argument that a state-
created impediment prevented him from filing a timely
§ 2254 petition and thus showing that he is entitled to toll-
ing under that theory. See 28 U.S.C. § 2244(d)(1)(B); Sims,
390 F.3d at 962 (recognizing room for equitable tolling
where an action by a state actor cannot be “shoehorned” into
§ 2244(d)(1)(B)). Powell identifies the two-year stay as the
impediment that prevented him from filing a timely § 2254
petition and blames the state postconviction court for
granting the stay to accommodate the public defender. But
that argument fails at the threshold for lack of a state-cre-
ated impediment: the public defender’s case management
priorities are not the type of administrative measures, like
hiring and budgetary decisions, that would make the office
a state actor under the administrative-action exception for
public defenders identified in Polk County v. Dodson, 454
U.S. 312, 324-25 (1981). Cf. Miranda v. Clark County, Nev.,
No. 03-3799                                                    9

319 F.3d 465, 469 (9th Cir. 2003) (public defender policy
requiring that new clients take polygraph test to determine
guilt or innocence as means of allocating office resources fit
exception for administrative action). Instead, the apparent
first-in, first-out policy for handling cases, no matter how ill-
conceived it may be, is akin to the traditional functions of a
law firm in organizing caseload among its lawyers, and
therefore is not state action. See Polk, 454 U.S. at 325. (We
note, however, that the alleged lack of any triage-like over-
ride on this policy, under which the most urgent or conse-
quential issues would move to the front of the queue, is an
invitation to disaster.) Without state action, there can be no
state-created impediment by the public defender agency.
  In any event, the indefinite stay did not prevent Powell
from filing a timely federal petition. See Lloyd v. Vannatta,
296 F.3d 630, 633 (7th Cir. 2002) (impediment must “pre-
vent” prisoner from filing petition). As the Supreme Court
recognized in Pace, a prisoner seeking state postconviction
relief in circumstances where the operation of the limita-
tions period is unclear may file “a ‘protective’ petition in
federal court and ask[ ] the federal court to stay and abey
the federal habeas proceedings until state remedies are
exhausted.” 125 S. Ct. at 1813. It was Powell’s decision to
proceed with counsel despite knowing that counsel had
asked for an indefinite stay that led to the belated review of
his state postconviction petition.
  Powell’s effort to rely on equitable estoppel fares no bet-
ter. Powell contends that because the state waited two years
before raising the issue that the case was an unauthorized
successive petition, it should now be estopped from raising
a statute-of-limitations defense. See Gildon v. Bowen, 384
F.3d 883, 886 (7th Cir. 2004) (expiration of statute of
limitations is affirmative defense). Powell argues that he
justifiably assumed that the state’s answer included all
relevant defenses to his petition and that he reasonably
presumed while his petition was indefinitely stayed that the
10                                             No. 03-3799

postconviction court had jurisdiction to hear it. These
assumptions, however, fall considerably short of what
Powell would have to demonstrate to establish equitable
estoppel against the state. For that, he would need to prove
“affirmative misconduct” by the state, in addition to the
traditional requirements of reasonable reliance to his
detriment on the state’s misrepresentation. See
United States v. Rand Motors, 305 F.3d 770, 773 (7th Cir.
2003); Lewis v. Washington, 300 F.3d 829, 834 (7th Cir.
2002); LaBonte v. United States, 233 F.3d 1049, 1053 (7th
Cir. 2000). There is no evidence of any such affirmative
misconduct, and thus the equitable estoppel doctrine cannot
save Powell’s petition either.


                            III
  For these reasons, we AFFIRM the judgment of the district
court.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-19-05
