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

No. 04-1154
PAUL T. WILLIAMS,
                                                 Petitioner-Appellee,
                                 v.

LARRY SIMS,
                                             Respondent-Appellant.

                         ____________
          Appeal from the United States District Court for
         the Northern District of Illinois, Eastern Division.
              No. 00 C 7056—David H. Coar, Judge.
                         ____________
   ARGUED SEPTEMBER 20, 2004—DECIDED DECEMBER 1, 2004
                         ____________



 Before POSNER, KANNE, and EVANS, Circuit Judges.
  POSNER, Circuit Judge. This is a habeas corpus action
brought by a state prisoner. The state moved to dismiss the
case as untimely, but the district court denied the motion,
ruling that the statute of limitations had been equitably
tolled. The question whether his ruling was correct is pre-
sented to us by an interlocutory appeal under 28 U.S.C.
§ 1292(b). The question has two parts: In what circum-
stances is the one-year statute of limitations in 28 U.S.C.
§ 2244(d)(1) for federal habeas corpus proceedings brought
by state prisoners subject to the common law doctrine of
2                                                  No. 04-1154

equitable tolling? And was the judge correct to hold that the
statute of limitations should be tolled in the circumstances
of this case?
  The general rule is that a statute of limitations may be
tolled—that is, arrested—on the basis of one or the other of
two common law doctrines: equitable estoppel and equita-
ble tolling. Shropshear v. Corporation Counsel, 275 F.3d 593,
595 (7th Cir. 2001); Singletary v. Continental Illinois National
Bank & Trust Co., 9 F.3d 1236, 1241 (7th Cir. 1993); Dring v.
McDonnell Douglas Corp., 58 F.3d 1323, 1328-29 (8th Cir.
1995). The first addresses conduct by the defendant that
prevents the plaintiff from suing within the statutory per-
iod. One standard example is where the defendant has
fraudulently concealed from the plaintiff the existence of a
claim against the defendant. Bell v. City of Milwaukee, 746
F.2d 1205, 1229-31 (7th Cir. 1984); see also Bennett v. Coors
Brewing Co., 189 F.3d 1221, 1235-36 (10th Cir. 1999) (same,
but confusingly described as an equitable-tolling case). An-
other is where the defendant requested the plaintiff to delay
suit while the parties tried to negotiate a settlement. Schroeder
v. Young, 161 U.S. 334, 344 (1896); Shropshear v. Corporation
Counsel, supra, 275 F.3d at 597; Cerbone v. International Ladies’
Garment Workers’ Union, 768 F.2d 45, 49-50 (2d Cir. 1985).
  The other doctrine, equitable tolling, refers to situations in
which, without fault by the defendant, the plaintiff is unable
to sue within the statutory period. The standard example is
where despite the exercise of due diligence the plaintiff
simply cannot discover the wrongdoer’s identity, or facts
essential to show that there was an actionable wrong, within
the statutory period. Donald v. Cook County Sheriff’s Depart-
ment, 95 F.3d 548, 561-62 (7th Cir. 1996); see also Lampf,
Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350,
363 (1991).
No. 04-1154                                                    3

  There is no reason in principle why these doctrines should
not apply to a statute of limitations in a habeas corpus case,
especially a short statute of limitations such as the one in
section 2244(d)(1). However, there is an argument that
Congress knocked out the doctrines by specifying unique
tolling rules right in the statute itself, a question we left
open in Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999).
  This is what the statute says:
    A 1-year period of limitation shall apply to an application
    for a writ of habeas corpus by a person in custody pursu-
    ant to the judgment of a State court. The limitation period
    shall run from the latest of—
    (A) the date on which the judgment became final by the
    conclusion of direct review or the expiration of the time
    for seeking such review;
    (B) the date on which the impediment to filing an applica-
    tion 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;
    (C) the date on which the constitutional right asserted was
    initially recognized by the Supreme Court, if the right has
    been newly recognized by the Supreme Court and made
    retroactively applicable to cases on collateral review; or
    (D) the date on which the factual predicate of the claim or
    claims presented could have been discovered through the
    exercise of due diligence.
(There is a materially identical provision in 28 U.S.C. § 2255,
the federal prisoner’s habeas corpus substitute.) Just to
make life a little more complicated, section 2244(d)(2) tolls
the statute of limitations for “the time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
4                                                 No. 04-1154

claim is pending.” That section will figure when we come to
discuss the particulars of Williams’s case, but we can ignore
it for now.
  In subsection (B) of section 2244(d)(1) we see an aspect of
equitable estoppel—the defendant has impeded the filing of
the habeas corpus action—but it is limited to cases in which
the impediment violated federal law, and so it would not
cover either of the standard cases of equitable estoppel that
we mentioned earlier unless due process were broadly
construed to forbid all such impediments—as perhaps it
might be, cf. Strickler v. Greene, 527 U.S. 263 (1999); Brady v.
Maryland, 373 U.S. 83 (1963). Similarly, subsection (D)
covers a part only of equitable tolling unless “factual
predicate of the claim” is loosely interpreted to cover cases
in which the identity of the wrongdoer cannot be discovered
by the exercise of due diligence. The interpretation would
be loose because as a matter of semantics it is possible to
know all the facts that give rise to a legal claim yet not know
who the wrongdoer is. But this potential gap in the statutory
tolling rule will rarely be a problem in the habeas corpus
setting. The proper respondent is always the petitioner’s
custodian, who in turn is almost always the warden of the
jail or prison in which the petitioner is confined. 28 U.S.C.
§ 2243; Rules 2(a) and (b) of the Rules Governing Section
2254 Cases; Rumsfeld v. Padilla, 124 S. Ct. 2711, 2718-22
(2004); al-Marri v. Rumsfeld, 360 F.3d 707, 708-09 (7th Cir.
2004). There are, however, exceptions, Braden v. 30th Judicial
Circuit Court, 410 U.S. 484, 485, 489 n. 4 (1973); Jones v.
Cunningham, 371 U.S. 236, 243 (1963); Reimnitz v. State’s
Attorney of Cook County, 761 F.2d 405, 408-09 (7th Cir. 1985),
mainly in cases in which the petitioner is not in physical
custody but is instead out on parole (as in Jones) or bail (as
in Reimnitz).
No. 04-1154                                                   5

  Within the areas of overlap between the statutory and com-
mon law tolling rules, and thus in determining for example
what is an “impediment” and what is required to show
“due diligence,” we can assume that the body of principles
built up in countless cases applying equitable estoppel and
equitable tolling outside the habeas corpus setting is usable
to flesh out the statute; McClendon v. Sherman, 329 F.3d 490,
494 (6th Cir. 2003). Dunlap v. United States, 250 F.3d 1001,
1007-09 (6th Cir. 2001); Fisher v. Johnson, 174 F.3d 710, 713 n.
11 (5th Cir. 1999). The difficult question is whether the
common law doctrines remain applicable in cases in which
the habeas corpus statute has a narrower scope than the
common law. These would mainly be cases in which the
impediment was not a violation of federal law or the result
of state action, or in which what the petitioner couldn’t
discover by the exercise of due diligence in time to sue
within the statutory deadline was not a factual predicate of
his claim but the identity of the wrongdoer.
  Of course the fact that section 2244(d)(1) does not cover
the entire ground covered by the common law tolling
doctrines does not establish that the doctrines survive the
statute. Congress may have wanted to curtail them by sub-
stituting a narrower statutory standard, as distinct from
supplementing them. But there is no indication of this. The
statutory tolling provisions that we quoted came in with the
statute of limitations itself in the Antiterrorism and Effective
Death Penalty Act. See Pub. L. No. 104-132, § 101, 110 Stat.
1214, 1217. Until then there hadn’t been a statute of limita-
tions in habeas corpus cases. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993). There had only been the equitable doctrine
of “abuse of the writ” to cut off inexcusably belated claims,
Rule 9(a) of the Rules Governing Section 2254 Cases. See,
e.g., Clency v. Nagle, 60 F.3d 751 (11th Cir. 1995) (17-year
delay); Walton v. Attorney General, 986 F.2d 472, 475-76 (11th
6                                                    No. 04-1154

Cir. 1993) (19 years); Strahan v. Blackburn, 750 F.2d 438, 443-
44 (5th Cir. 1985) (11 years). But because abuse of the writ
was the equivalent of laches, Walters v. Scott, 21 F.3d 683,
686-87 (5th Cir. 1994), proof that the respondent’s ability to
defend the case had been impaired by the petitioner’s delay
was required, National R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 121-22 (2002); Costello v. United States, 365 U.S. 265,
282 (1961); Teamsters & Employers Welfare Trust v. Gorman
Brothers Ready Mix, 283 F.3d 877, 880 (7th Cir. 2002), and as
a result many very old claims were not precluded, as in
Sutton v. Lash, 576 F.2d 738, 744 (7th Cir. 1978) (21 years); Wise
v. Armontrout, 952 F.2d 221, 223 (8th Cir. 1991) (17 years);
Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970) (38
years), and Hawkins v. Bennett, 423 F.2d 948, 951 (8th Cir.
1970) (44 years). Since there was no statute of limitations, the
standard grounds—equitable estoppel and equitable
tolling—for tolling statutes of limitations were not relevant,
and they were not a focus of Congress’s deliberations on
creating a habeas corpus statute of limitations for the first
time.
  In light of this history, it is not surprising that all the cases
that address whether the common law tolling doctrines are
applicable to the habeas corpus statute of limitations have
held that they are, e.g., Neverson v. Farquharson, 366 F.3d 32, 39-
41 (1st Cir. 2004); Harris v. Hutchinson, 209 F.3d 325, 328-30
(4th Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000) (per curiam); Davis v. Johnson, 158 F.3d 806, 810-11 (5th
Cir. 1998); Calderon v. U.S. District Court, 128 F.3d 1287, 1288-
89 (1997), reversed on other grounds, 163 F.3d 530 (9th Cir.
1998) (en banc), provided that the doctrine is not applied in
a way that is inconsistent with the statute, as we empha-
sized in Brooks v. Walls, 279 F.3d 518, 525 (7th Cir. 2002), and
earlier in Owens v. Boyd, 235 F.3d 356, 358-60 (7th Cir. 2000).
No. 04-1154                                                   7

   There is not a great deal at stake, however, though some
courts may have been misled in this regard, as we shall see,
by misunderstanding the scope of the common law doctrine.
The gap between statute and tolling rule looms largest with
respect to equitable estoppel, and as to that it is difficult to
believe that Congress meant to legislate, for example, that if
the respondent in a habeas corpus action promises not to
plead the statute of limitations if the petitioner will delay in
filing his action, yet pleads it anyway, the courts are de-
barred from estopping the respondent just because section
2244(d)(1)(B) does not specify that such a promise can arrest
the one-year statute of limitations. We cannot find any case
in which this precise issue has arisen, but there are several
closely analogous cases, such as Stillman v. Lamarque, 319 F.3d
1199, 1201-02 (9th Cir. 2003), where the prison litigation
coordinator broke his promise to the petitioner’s lawyer to
obtain the petitioner’s signature on his state postconviction
pleading in time for the pleading to be timely, and Lott v.
Mueller, 304 F.3d 918, 925 (9th Cir. 2002), where the peti-
tioner was denied access to his legal files when he was twice
“writted” out of the district to testify. See also Whalem/Hunt
v. Early, 233 F.3d 1146, 1147-48 (9th Cir. 2000) (en banc) (per
curiam); Valverde v. Stinson, 224 F.3d 129, 133-35 (2d Cir.
2000); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
The validity of such decisions should not depend on
whether they can be shoehorned into the statutory provision
for “impediment[s] to filing an application created by State
action in violation of the Constitution or laws of the United
States.”
  With respect to equitable tolling, if we set aside the rare
case in which the respondent’s identity is unknown the only
case in which the statute fails to track the common law
doctrine is where the federal district court misleads the
petitioner concerning filing deadlines. See Pliler v. Ford, 124
8                                                 No. 04-1154

S. Ct. 2441, 2447 (2004); Alexander v. Cockrell, 294 F.3d 626,
629-30 (5th Cir. 2002) (per curiam); United States v. Kelly, 235
F.3d 1238, 1242-43 (10th Cir. 2000); cf. United States v.
Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000) (per curiam).
Such a case cannot be fitted to the statutory language. In
other cases, cases falling within the area of overlap between
the statute and the doctrine, subsection (D) is best under-
stood as invoking the common law doctrine, allowing its prin-
ciples to be applied to habeas corpus.
   And now to the question how those principles apply to
this case. The statutory deadline for the petitioner to seek
federal habeas corpus was April 24, 1997, and he didn’t file
until November 7, 2000. However, on April 4, 1997, he had
filed a petition for state postconviction relief that was still
pending when he filed his federal action, and if that pen-
dency tolled the statute of limitations he is home free. Un-
fortunately for him, his state petition was itself untimely.
Nevertheless the district judge ruled that it tolled the statute
of limitations because it was uncertain at the time whether
an untimely petition activated the tolling provision in
section 2244(d)(2) and because the state courts had dawdled
for three years before ruling that Williams’s state-court post-
conviction suit was indeed untimely. The district judge’s
ruling was not based on (d)(2), because an untimely state
postconviction petition does not toll the statute of limita-
tions. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Owens v. Boyd,
supra, 235 F.3d at 357; Freeman v. Page, 208 F.3d 572, 574 (7th
Cir. 2000), and cases cited there. It was based on the com-
mon law doctrine of equitable tolling: the proceeding tolled
the statute of limitations because the circumstances were
such that the petitioner could not reasonably have been ex-
pected to sue within the statutory deadline.
  It should be obvious that an untimely petition would not
toll a statute of limitations; and while that might not be
No. 04-1154                                                    9

obvious to an unrepresented prisoner, even reasonable mis-
takes of law are not a basis for equitable tolling. This is the
general rule, e.g., Hoosier Bancorp of Indiana, Inc. v. Rasmus-
sen, 90 F.3d 180, 183 (7th Cir. 1996); Wakefield v. Railroad
Retirement Board, 131 F.3d 967, 969-70 (11th Cir. 1997) (per
curiam), and it has been applied repeatedly to pro se habeas
corpus petitioners. E.g., Owens v. Boyd, supra, 235 F.3d at
358-60; Baker v. Norris, 321 F.3d 769, 771-72 (8th Cir. 2003);
Fierro v. Cockrell, 294 F.3d 674, 681-84 (5th Cir. 2002); Delaney
v. Matesanz, 264 F.3d 7, 15-16 (1st Cir. 2001); Marsh v. Soares,
223 F.3d 1217, 1220-21 (10th Cir. 2000); Felder v. Johnson, 204
F.3d 168, 171-73 (5th Cir. 2000); Fisher v. Johnson, supra, 174
F.3d at 714-15. (See also Modrowski v. Mote, 322 F.3d 965 (7th
Cir. 2003), where we held that the incapacity, like the
negligence, of an attorney for a habeas corpus petitioner
was likewise not a ground for equitable tolling.) Otherwise
statutes of limitations would have little bite, and no value at
all to persons or institutions sued by people who don’t have
good, or perhaps any, lawyers.
  The state court’s delay in ruling that the petitioner’s state-
court postconviction action was untimely has no bearing on
the reasonableness of Williams’s conduct. He filed that
action only 20 days before the deadline for seeking federal
habeas corpus expired, which means that only if the court
had dismissed his postconviction action within that period
(more precisely, had communicated the dismissal to him
within that period) could he have filed his federal habeas
corpus action in time. The court could not reasonably be
expected to act so quickly. Nor is a court’s failure to warn a
party that he is about to be cut off by the statute of limi-
tations a basis for equitable tolling. Pliler v. Ford, supra, 124
S. Ct. at 2446-47.
  And now we see why some courts have thought it might
be very important to decide whether equitable tolling sur-
10                                               No. 04-1154

vives the enactment of section 2244(d)(1). It is plain that
subsection (D), which we said overlaps the common law
doctrine almost completely, does not encompass mistakes
of law; it is limited to the “factual” predicates of the peti-
tioner’s claim. But this would open up a gap between the
statutory and the common law tolling rules only if the com-
mon law doctrine allowed a statute of limitations to be tolled
on the basis of a mistake of law or a failure by a court to
warn litigants about impending pitfalls, such as an about-to-
expire statute of limitations. It does not.
  The ruling of the district court is reversed with instruc-
tions to dismiss the suit.
                                                  REVERSED.

A true Copy:
        Teste:

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




                    USCA-02-C-0072—12-1-04
