                          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 post-
conviction 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 sev-
eral 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 ten-
year 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 ineffec-
tive assistance of trial and appellate counsel. After the
Circuit Court denied relief, the Court of Appeals reversed
and remanded for a hearing to determine wheth-
er 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 assis-
tance. 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 determina-
tion 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 con-
viction 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 Ap-
peals decision by the Wisconsin Supreme Court nor certio-
rari 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 ineffec-
tive 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 “miscar-
riage of justice” exception to § 2244, similar to the “miscar-
riage 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 excep-
tion 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 collat-
eral 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 halluci-
nations 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 determi-
    native 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 wheth-
er 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 frame-
work.
  Although Balsewicz does not advance an equitable toll-
ing argument, he contends that the state should be equita-
bly 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 pre-
vented Balsewicz from suing within the limitations peri-
od. 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 demon-
strate 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 limita-
tions. To hold otherwise would render the AEDPA limita-
tions 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 convic-
tion. 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
