Ray v. Pollard, No. 11-3228 (7th Cir. 2012)
Annotate this CaseRay was convicted of reckless homicide and reckless endangerment, arising from a retaliatory shooting that left an 11-year-old girl dead and two others injured. At trial, the state called Detective Phillips to describe a signed statement that Ray gave during his police interview. Phillips read from Ray’s statement and recounted his own out-of-court statements informing Ray that co-actors had implicated Ray. Neither co-actor testified, but defense counsel did not object to Phillips’s testimony. Wisconsin courts rejected direct appeal and denied post-conviction relief. In his first federal habeas petition, the Seventh Circuit found that Ray’s constitutional rights were violated when the state introduced out-of-court statements made by individuals who did not testify, but remanded to allow the state to assert that Ray’s state post-conviction motion was untimely. On remand, the district court placed the burden of proof on Ray, finding that he did not timely give his motion to a prison official for mailing. The Seventh Circuit reversed, holding that the prisoner mailbox rule governs whether a state post-conviction document is “properly filed” because Wisconsin has not clearly rejected it. The state failed to rebut Ray’s testimony and documents showing that he timely gave his state post-conviction motion to a prison official.
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