                     NONPRECEDENTIAL DISPOSITION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

                             Argued January 24, 2007
                             Decided March 20, 2007

                                      Before

                   Hon. KENNETH F. RIPPLE, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-2259

CURTIS JOHNSON,                               Appeal from the United States District
    Petitioner-Appellant,                     Court for the Northern District of Illinois,
                                              Eastern Division.
      v.
                                              No. 98 C 3432
NEDRA CHANDLER,
    Respondent-Appellee.                      William J. Hibbler,
                                              Judge.


                                     ORDER

      Illinois inmate Curtis Johnson filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. The district court denied his petition, ruling that Mr.
Johnson had not established ineffective assistance of counsel. Because Mr.
Johnson's § 2254 petition was filed more than one year after the Illinois Appellate
Court issued its decision, we affirm.

       In 1984, Mr. Johnson was arrested for murdering one person and robbing
three others in a garage. At his trial, two of the robbery victims identified Mr.
Johnson as the offender. A detective who conducted the investigation testified that
the two victims identified Mr. Johnson from a photo array and a police lineup. A
No. 06-2259                                                                     Page 2

third robbery victim, Danny Turner, was not called to testify at the trial, but the
detective testified that Turner was unable to identify Mr. Johnson in a lineup and
that the police were not able to find Turner to show him a photo array. The jury
found Mr. Johnson guilty, and he was sentenced to 60 years' imprisonment.

       Mr. Johnson’s conviction and sentence were affirmed after a remand from his
direct appeal, and he then filed a postconviction petition in state court in which he
argued that counsel was ineffective for failing to interview Turner or to call him as
a witness at trial. Mr. Johnson submitted affidavits from Turner and his trial
counsel, both of which supported his positions. The Illinois Appellate Court ruled
that Mr. Johnson’s claim was barred by res judicata because he raised it on direct
appeal and that the affidavits did not warrant a new trial under Illinois law
because they would not have changed the result.

       At the time, Illinois Supreme Court Rule 315(b) required that Mr. Johnson
file an affidavit of intent to appeal to the state supreme court within 21 days after
the court of appeals issued its judgment. Mr. Johnson, however, did not file his
petition for 52 days, and the court denied the late petition without further
comment. Mr. Johnson did not seek certiorari in the United States Supreme Court.

        Nearly a year after the Illinois Supreme Court denied Mr. Johnson's request
for leave to appeal, he filed a § 2254 petition, claiming, among other things, that
trial counsel was ineffective for failing to interview Turner. The state moved to
dismiss the petition as untimely because Mr. Johnson had filed his § 2254 petition
more than one year (412 days) after the Illinois Appellate Court's judgment became
final. The district court denied the motion, however, ruling that the one-year
statute of limitations was tolled under 28 U.S.C. § 2244(d)(2) for the 52 days before
he filed his petition for leave to appeal his postconviction petition to the Illinois
Supreme Court and for the 90 days when Mr. Johnson could have petitioned (but
did not) for certiorari of the state court's decision. By excluding these two periods,
the district court concluded that Mr. Johnson's filing was “well within the
limitations period.” Appellee’s App. at SA60.

       The district court denied most of Mr. Johnson’s claims on the merits, but held
an evidentiary hearing on his claim that trial counsel was ineffective for failing to
interview Turner. After the hearing, the district court denied Mr. Johnson's
petition, reasoning that counsel's performance was not deficient under Strickland v.
Washington, 466 U.S. 668 (1984). The court explained that, although counsel could
not recall the case and gave no explanation for not calling Turner to testify, “it is
reasonable to assume that whatever efforts he made were unsuccessful based upon
Turner's decision not to participate in this trial.” Appellant’s App. at A46. The
court also ruled that Mr. Johnson was not prejudiced by Turner's failure to testify
because two other eyewitnesses had identified Mr. Johnson as the shooter, and
No. 06-2259                                                                      Page 3

Turner's “nebulous account” would not have resulted in a different outcome at trial.
The court granted a certificate of appealability, however, on the issue of whether
counsel was ineffective.

        On appeal, Mr. Johnson reasserts his argument that counsel was ineffective
for failing to call Turner to testify as an eyewitness. He argues that counsel acted
unreasonably by not even interviewing Turner. He believes that Turner's testimony
would have increased his chance for acquittal because it would have cast doubt on
the state's case. The state responds that the district court properly applied
Strickland, but renews its threshold argument that the § 2254 petition was
untimely and that the district court erred by tolling the statute of limitations
during two critical periods.

       A prisoner must file a federal collateral attack on a state criminal judgment
within one year of when the state court judgment became final. 28 U.S.C.
§ 2244(d)(1)(A). But this one-year limitation excludes any "time during which a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2); Brooks v.
Walls, 279 F.3d 518, 520-21 (7th Cir. 2002). A collateral attack filed in state court
is not “properly filed” if it is untimely under state law, unless the state court decides
not to enforce its timeliness rules. Brooks, 279 F.3d at 521.

       Mr. Johnson was convicted before § 2244(d) of the Antiterrorism and
Effective Death Penalty Act (AEDPA) was passed, so this court treats April 24,
1996, as the beginning of his year to seek federal collateral review. Fernandez v.
Sternes, 227 F.3d 977, 978 (7th Cir. 2000). When AEDPA was enacted, Mr.
Johnson's appeal of his state collateral attack was pending in the court of appeals,
which affirmed on January 3, 1997, the trial court's decision. Mr. Johnson filed on
February 24, 1997, a petition for leave to appeal to the state supreme court, which
was denied on June 4, 1997. Mr. Johnson did not file his § 2254 petition until June
3, 1998.

       The state is correct--and Mr. Johnson does not contest--that the one-year
limitations period should not have been tolled by the 52 days between the Illinois
Appellate Court's affirmance of the denial of his postconviction petition and Mr.
Johnson's filing of his petition to the Illinois Supreme Court. The only period that
can be excluded from the year under § 2244(d)(2) is the period that the petition is
“pending” under § 2244(d)(2), beginning from the time the prisoner asks the state
court to excuse his default to the time the court issues its decision on the merits.
Fernandez, 227 F.3d at 979-80. Mr. Johnson did not file his petition with the
Illinois Supreme Court until more than a month after the 21-day deadline under
Illinois Supreme Court Rule 315(b) had passed, so it was not “pending” before the
court until he filed the late petition.
No. 06-2259                                                                      Page 4

       Mr. Johnson also concedes that the state is correct that the district court
improperly excluded the 90 days during which he could have filed for a petition for
certiorari. The one-year limitations period set forth in § 2244(d) “is not tolled
during the time a state post-conviction petitioner could have filed, but did not file, a
petition for certiorari review in the United States Supreme Court.” Gutierrez v.
Schomig, 233 F.3d 490, 490-91 (7th Cir. 2000); see also Lawrence v. Florida, 127 S.
Ct. 1079, 1083 (2007) (ruling that § 2244(d) limitations period is not tolled while
petition for certiorari is pending with the Supreme Court of the United States). Mr.
Johnson therefore delayed 416 days before filing his § 2254 petition: 52 days
between the Illinois Appellate Court’s judgment and his filing of his petition for
leave to appeal to the Illinois Supreme Court, plus 364 days between the denial of
his petition for leave and the filing of his § 2254 petition.

       Mr. Johnson does not dispute that his § 2254 petition is untimely, but instead
argues, for the first time on appeal, that the limitations period should be equitably
tolled due to “the complex nature of the tolling provisions under the AEDPA
combined with the fact that Appellant filed his initial petition pro se.” Appellant’s
Reply at 2. When a district court dismisses a petition filed under § 2254, we
generally review the court’s conclusions of law de novo and findings of fact for clear
error. Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006); Bartlett v. Battaglia,
453 F.3d 796, 799 (7th Cir. 2006); see also Modrowski v. Mote, 322 F.3d 965, 967
(7th Cir. 2003) (applying de novo review to issue of equitable tolling for § 2254
petition). But the circuits are divided on the proper standard of review when a
district court denies equitable tolling for a § 2254 petition, with some applying an
abuse of discretion standard, others applying de novo review, and still others
applying a combination. See Brinson v. Vaughn, 398 F.3d 225, 231 (3d Cir. 2005)
(noting standards of review applied by different circuits); Neverson v. Farquharson,
366 F.3d 32, 42 n.1 (1st Cir. 2004) (same); Rouse v. Lee, 339 F.3d 238, 247-48 (4th
Cir. 2003) (collecting cases).

       We do not need to address this division among the circuits here, however,
because Mr. Johnson failed to raise the issue of equitable tolling to the district
court. The state argues that the issue is therefore forfeited. If the issue were
forfeited we would review only for plain error. United States v. Haddad, 462 F.3d
783, 793 (7th Cir. 2006). But the situation here is unusual because, although Mr.
Johnson did not raise the issue in the district court, the court could never have
decided whether the limitations period should be tolled anyway because the court
erroneously believed Mr. Johnson’s petition was timely; therefore there could be no
district court decision on equitable tolling for us to review. Hence, Mr. Johnson is
arguing in favor of the district court’s decision that his petition was timely, and a
party may defend a judgment on any issue consistent with the record that is not
waived. Luna v. United States, 454 F.3d 631, 635 (7th Cir. 2006); Wildey v. Springs,
47 F.3d 1475, 1480 n.8 (7th Cir. 1995). Mr. Johnson has never explicitly waived his
No. 06-2259                                                                      Page 5

right to assert that the tolling period should be equitably tolled, so we must
determine whether Mr. Johnson’s argument for equitable tolling is supported by the
record.

        AEDPA provided in 28 U.S.C. § 2244(d)(1) specific statutory tolling rules for
§ 2254 petitions, see Williams v. Sims, 390 F.3d 958, 963-64 (7th Cir. 2004), but did
not provide similar provisions for federal prisoners filing motions under § 2255.
Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004). We have held that,
because motions by federal prisoners filed under 28 U.S.C. § 2255 do not have
statutory tolling, the common law doctrine of equitable tolling may apply when
“extraordinary circumstances far beyond the litigant’s control . . . prevented timely
filing.” Poe v. United States, 468 F.3d 473, 477 (7th Cir. 2006) (quoting United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). But we have yet to identify
a factual circumstance so extraordinary that it warrants equitable tolling, so we
have reserved ruling on whether the statutory tolling provisions for § 2254 petitions
indicated a congressional intent to replace the common law doctrine of equitable
tolling. See Williams, 390 F.3d at 963-64; Modrowski v. Mote, 322 F.3d 965, 967
n.12 (7th Cir. 2003) (reserving the issue).

        Nonetheless, we have noted several circumstances that do not justify
equitable tolling. In Modrowski, we listed specific circumstances. See Modrowksi,
322 F.3d at 967 (holding that attorney incapacity does not warrant equitable
tolling); see also Lloyd v. VanNatta, 296 F.3d 630, 633 (7th Cir. 2002) (ruling that
lack of access to trial transcripts does not warrant tolling); Montenegro v. United
States, 248 F.3d 585, 594 (7th Cir. 2001) (holding that an attorney’s
nonresponsiveness, prisoner’s ignorance of the law and prison transfer do not
warrant equitable tolling); Marcello, 212 F.3d at 1010 (ruling that tolling was not
justified by opaque law and death of attorney’s father); Taliani v. Chrans, 189 F.3d
597, 598 (7th Cir. 1999) (holding that attorney’s negligence does not warrant
tolling). Recently we have also held that actual innocence is not a freestanding
exception to the time limits in § 2244(d), Araujo v. Chandler, 435 F.3d 678, 681 (7th
Cir. 2005), nor should the limitations period be tolled when a corrections officer fails
to deliver the prisoner’s mail, Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004).
Other circuits have also identified circumstances that are not so extraordinary as to
justify equitable tolling. See, e.g., Rouse v. Lee, 339 F.3d 238, 248-50 (4th Cir. 2003)
(ruling that time limits should not be tolled based on prisoner’s medical condition or
attorney’s mistake of law); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)
(finding that prisoner’s inability to understand English does not warrant tolling if
the limitation did not prevent access to courts); Flanders v. Graves, 299 F.3d 974
(8th Cir. 2002) (stating that actual innocence is relevant when deciding whether to
toll the limitations period, but must be accompanied by evidence of prisoner’s due
diligence); Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999) (ruling that prisoner’s
No. 06-2259                                                                      Page 6

misunderstanding of AEDPA’s exhaustion requirement does not excuse failure to
comply with limitations requirement).

        Several circuits have held, however, that common law equitable tolling may
apply to the statutory limitations period for petitions filed under § 2254. See, e.g.,
Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006); Neverson v. Farquharson,
366 F.3d 32, 39-41 (1st Cir. 2004); but cf. Solomon v. United States, 467 F.3d 928,
941 (6th Cir. 2006) (applying a “unique” five-factor test to determine the timeliness
of collateral attacks). These circuits have identified specific extraordinary
circumstances when the limitations period should be tolled, most often when the
state or district court misled the prisoner or failed to notify the prisoner of their
decisions. See, e.g., Brinson v. Vaughn, 398 F.3d 225, 231 (3d Cir. 2005) (tolling
limitations period when district court mistakenly dismissed prisoner’s first
petition); see also Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002) (tolling
limitations period when state court failed to notify prisoner that it had issued a
decision on his postconviction petition); Woodward v. Williams, 263 F.3d 1135, 1143
(10th Cir. 2001) (same); Phillips v. Donnelly, 516 F.3d 508, 511 (5th Cir. 2000)
(same). Some circuits have found other extraordinary circumstances as well. See,
e.g., Mendoza v. Carey, 449 F.3d 1065, 1071 (9th Cir. 2006) (tolling limitations
period when prisoner spoke only Spanish, but was denied Spanish legal materials
or access to interpreter); Roy v. Lampert, 465 F.3d 964 (9th Cir. 2006) (ruling that
prison library’s failure to stock legal materials containing § 2244(d) provides
grounds for equitable tolling); Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.
2000) (same).

       We do not need to reach the issue of whether petitions filed under § 2254 can
ever be equitably tolled because Mr. Johnson’s circumstances are not sufficiently
extraordinary as to justify tolling in this case. He first contends that the limitations
period for his petition should be equitably tolled because he filed his initial petition
without the assistance of counsel and he was confused by AEDPA’s complicated
limitations and procedural requirements. But we have repeatedly held that
mistakes of law and ignorance of proper legal procedures are not sufficiently
extraordinary to warrant tolling. See, e.g., Arrietta v. Battaglia, 461 F.3d 861, 867
(7th Cir. 2006); Williams, 390 F.3d at 963. Allowing tolling for every mistake would
undermine the purpose of statutes of limitations for people being sued by those
representing themselves. Williams, 960 F.3d at 963.

       Mr. Johnson also argues that his incarceration made it difficult for him to file
a timely petition. But, again, we have specifically held that a prisoner's
incarceration is not an extraordinary circumstance that warrants application of this
doctrine. Johnson v. McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001). Mr. Johnson
has not argued that his circumstances are in any way extraordinary. Accordingly,
we affirm the district court’s dismissal of Mr. Johnson’s petition.
No. 06-2259      Page 7

              AFFIRMED
