                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1



              United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                 Submitted February 8, 2013*
                                  Decided February 8, 2013

                                           Before

                              ILANA DIAMOND ROVNER, Circuit Judge

                              ANN CLAIRE WILLIAMS, Circuit Judge

                              DIANE S. SYKES, Circuit Judge

No. 12-3089

ERIC O. RIVERA,                                  Appeal from the United States District
      Petitioner-Appellant,                      Court for the Eastern District of Wisconsin.

       v.                                        No. 12-CV-140-JPS

WILLIAM POLLARD,                                 J.P. Stadtmueller,
     Respondent-Appellee.                        Judge.

                                         ORDER

       Eric Rivera pointed a .22-caliber rifle through the open, second-story window of a
residence in Milwaukee, Wisconsin, and fired six to eight rounds toward the street below.
A man sitting in a parked car died from a .22-caliber bullet wound to the head. Rivera
pleaded guilty to first-degree reckless homicide, WIS. STAT. § 940.02(1), and first-degree
reckless endangerment, § 941.30(1). He was sentenced in 1998 to 45 years’ imprisonment. In
early 2012 he petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 alleging that


       *
        After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 12-3089                                                                              Page 2


trial and appellate counsel had failed to investigate or tell him about a witness who might
have supported a defense that a second gunman fired the fatal shot. Had he known about
this witness, Rivera insisted, he would not have pleaded guilty. The district court
dismissed the action as untimely, reasoning that Rivera was not justified in waiting until
2012 to seek federal relief. We agree with that assessment.

        The facts relevant to Rivera’s petition are not disputed. His conviction and sentence
were upheld on direct appeal in 2001, and shortly afterward Rivera received the case file
from appellate counsel. In that file was a police report of an interview with Rosa
Maldonado, who had said she saw someone running along the street and firing a gun
toward the parked car on the night the victim was killed. Rivera read that report soon after
receiving the file, yet he waited until 2008 before taking action. That year he sought
postconviction relief directly from the Wisconsin Court of Appeals, see State v. Knight, 484
N.W.2d 540, 541 (Wis. 1992), on the ground that appellate counsel should have claimed that
his lawyer in the trial court was ineffective in not exploring a second-gunman defense
based on Maldonado’s statement. Her account, the court of appeals noted, suggested that a
street-level gunman might coincidentally have shot the victim while Rivera was firing from
above. Thus the court referred the matter to the trial court for factual development. But in
2011, after many months of hearings in the trial court, the court of appeals denied Rivera’s
petition. The court concluded that he had suffered no prejudice from the inaction of his
lawyers because, as the trial court found, a second-gunman defense lacked evidentiary
support. The court of appeals cited a forensic pathologist’s opinion that the victim had been
struck by a bullet “fired from a higher distance.” The court also noted that Maldonado,
who testified during the postconviction proceedings, had said she saw the street-level
gunman 40 to 45 minutes after hearing a shot fired from the residence. The Supreme Court
of Wisconsin denied review on September 1, 2011.

        Rivera filed his § 2254 petition five months later on February 9, 2012. He raised the
ineffective-assistance claim as well as three others not relevant to this appeal. In dismissing
the action as untimely, the district court noted that, of the possible events that can delay the
running of the one-year statute of limitations in 28 U.S.C. § 2244(d)(1), only one could apply
here: The statute cannot run before “the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of due diligence.”
Id. § 2244(d)(1)(D). The district court thought this date was September 30, 2009, when the
state trial court taking evidence in the postconviction proceedings compiled a formal
record of the “additional facts and witnesses that Mr. Rivera argues were not disclosed to
him prior to trial.” And thus, the district court reasoned, Rivera’s federal petition was
untimely because he had filed it more than a year after that date. The court added that
equitable tolling could not apply because, even if waiting until September 2011 for a
resolution of his state postconviction petition had made Rivera “wary” of seeking relief in
No. 12-3089                                                                               Page 3


federal court, the “delay” in state court was not extraordinary and had not prevented
Rivera from seeking relief under § 2254. But the district court envisioned “reasonable jurists
debating” the tolling question and, for that reason, granted a certificate of appealability on
the ineffective-assistance claim. See 28 U.S.C. § 2253(c)(2).

       At the outset we note that the district court erred in granting the certificate of
appealability because a procedural question—in this case the timeliness of Rivera’s federal
petition—cannot by itself support granting a certificate. There also must be a substantial
showing of a constitutional violation, 28 U.S.C. § 2253(c)(2); Owens v. Boyd, 235 F.3d 356, 358
(7th Cir. 2000), which the district court did not find. But “a defect in a certificate of
appealability is not a jurisdictional flaw,” Owens, 235 F.3d at 358, and because the state has
not challenged the district court’s grant it has forfeited the benefits the statute. We thus
proceed to resolve the timeliness issue.

        Rivera contends that the district court picked the wrong accrual date for his claim of
ineffective assistance. We agree that a mistake was made, but not in the way Rivera
contends or in a way that saves his claim. In his view, the factual predicate remained
unknown until September 1, 2011, when the Supreme Court of Wisconsin cut off further
review of his state postconviction petition. Not until then, says Rivera, could he file a
petition in federal court given his need to exhaust state remedies. See 28 U.S.C.
§ 2254(b)(1)(A).

        This argument fails for several reasons. First, Rivera never presented it to the district
court and thus waived it for appeal. See Wis. Educ. Ass’n Council v. Walker, Nos. 12-1854,
12-2011, 12-2058, 2013 WL 203532, at *27 (7th Cir. 2013); Fednav Int’l Ltd. v. Continental
Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). Second, the ongoing state proceedings were (as
Rivera himself implicitly acknowledges) at most a procedural hurdle to his federal claim,
not the factual predicate for that claim. See Daniels v. Uchtman, 421 F.3d 490, 492 (7th Cir.
2005). And even describing the state proceedings as a procedural obstacle is inaccurate
because Rivera could have filed a timely federal petition and asked the district court for a
stay pending exhaustion. See Rhines v. Weber, 544 U.S. 269, 275–77 (2005); Dolis v. Chambers,
454 F.3d 721, 725 (7th Cir. 2006).

       Most obviously, though, the date that Rivera discovered the factual predicate for his
claim was not, as the district court surmised, in 2009 when the state trial court compiled a
record of the evidence presented during the postconviction proceedings. See Escamilla v.
Jungwirth, 426 F.3d 868, 870 (7th Cir. 2005) (“Section 2244(d)(1)(D) does not restart the time
when corroborating evidence becomes available; if it did, then the statute of limitations
would fail in its purpose to bring finality to criminal judgments, for any prisoner could
reopen the judgment by locating any additional evidence.”). Instead, Rivera discovered the
No. 12-3089                                                                               Page 4

factual predicate for his claim of ineffective assistance in 2001 when he read the police
report of Maldonado’s interview. The one-year statute of limitations began running on that
date and thus expired in 2002. And since only a “pending” state-court action can toll the
limitations period, 28 U.S.C. § 2244(d)(2); Griffith v. Rednour, 614 F.3d 328, 329–30 (7th Cir.
2010); Fernandez v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000), the state postconviction
proceedings that Rivera commenced in 2008 did nothing to save his federal petition from
being dismissed as untimely. This conclusion also dooms Rivera’s argument that the
“delay” in the state-court proceedings constitutes an extraordinary circumstance that stood
in the way of his timely filing—Rivera does not even assert such circumstances caused him
to wait six years before filing his state petition. See Holland v. Florida, 130 S. Ct. 2549, 2562
(2010) (noting that petitioner is entitled to equitable tolling only if he shows that he has
been pursuing his rights diligently and that some extraordinary circumstance stood in his
way of timely filing); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (same).

                                                                                   AFFIRMED.
