Ronald M. Carpenter v. Daniel Winkleski

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 22, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2023AP5 Cir. Ct. No. 2022CV2561

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN EX REL. RONALD M. CARPENTER,

PETITIONER-APPELLANT,

V.

DANIEL WINKLESKI, WARDEN, AND KEVIN A. CARR,

RESPONDENTS-RESPONDENTS.

APPEAL from orders of the circuit court for Dane County: NIA E.
TRAMMELL, Judge. Affirmed.

Before Blanchard, Nashold, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Ronald M. Carpenter, pro se, appeals a circuit court
order that dismissed Carpenter’s petition for a writ of certiorari as untimely.
No. 2023AP5

Carpenter argues that the court should have granted his motions to extend the time
to file his petition, and that his deadline was equitably tolled during a period of delay
caused by obstacles within the prison system. For the reasons explained in this
opinion, we reject Carpenter’s arguments and conclude that Carpenter’s petition was
not timely filed. We affirm.

¶2 On April 4, 2022, Carpenter was issued a prison disciplinary conduct
report. Carpenter was found guilty of the offense, and appealed within the prison
inmate complaint review system. The Department of Corrections (DOC) issued a
final decision dismissing Carpenter’s complaint on July 13, 2022. Accordingly,
Carpenter’s deadline to file a petition for a writ of certiorari to obtain review of the
disciplinary decision in the circuit court was August 29, 2022. See WIS. STAT.
§ 893.735 (2021-22)1 (petition for certiorari review of a prison disciplinary decision
must be filed within forty-five days of the date of the decision).

¶3 On August 8, 2022, Carpenter filed a letter in the circuit court asking
the court to extend the deadline for Carpenter to file a petition for certiorari review.
Carpenter asserted that the additional time was necessary based on his limited access
to the prison law library and because the prison business office had returned
Carpenter’s request for his six-month trust fund account statement, which he needed
in order to seek waiver of the filing fee for his certiorari action. By letter dated
August 17, 2022, the Dane County Clerk of Circuit Court’s Prisoner Litigation Staff
Attorney wrote in pertinent part to Carpenter, “Your action has not been filed
because you have failed to provide all documents required by Wisconsin law.”

1
All references to the Wisconsin Statutes are to the 2021-22 version.

2
No. 2023AP5

¶4 By motion dated August 31, 2022, Carpenter asked the circuit court
for a fifteen-day extension of the time to file his certiorari petition. Carpenter
asserted that he did not receive his three-strikes certification generated upon request
by the Wisconsin Department of Justice until August 12, 2022. Carpenter also
asserted that, on August 30, 2022, he attempted to obtain the copies he needed to
file his petition (apparently from the prison law library) but that he was not provided
complete copies and he received blank pages along with the copies he did receive.
Carpenter asserted that, on August 31, 2022, the prison law librarian provided him
with the incorrect forms for filing the certiorari action. Carpenter asserted that he
would file the petition as soon as he was able to obtain the proper copies and forms
from the prison law librarian, but that his receipt of that material was being delayed
due to the COVID-19 pandemic. The court did not respond to that motion.

¶5 Carpenter filed his petition for certiorari review, petition for fee
waiver, and other required documents after the August 29, 2022 deadline.2 On
October 17, 2022, the circuit court dismissed the action as untimely. Carpenter
moved for reconsideration, which the court also denied. Carpenter appeals.

¶6 The issue here—whether Carpenter’s petition was timely filed under
the statutes and controlling case law—presents a question of law that we review de

2
In his briefs on appeal, Carpenter does not state the date on which he placed his
completed petition for certiorari papers in the prison mail system, and he does not cite anything in
the record establishing that date. The appendix to Carpenter’s brief includes Carpenter’s affidavit,
dated September 6, 2022, averring that Carpenter placed the petition and fee waiver petition with
supporting material in the prison mail system. That affidavit does not appear in the record. The
circuit court’s order denying reconsideration states that Carpenter’s material was received
September 12, 2022, and Carpenter’s petition for fee-waiver was date-stamped September 13,
2022. We note that Carpenter’s motion to extend the time to file his petition was dated August 31,
2022, and stated that Carpenter intended to file his petition on a later date, as soon as he was able
to obtain all necessary material. It is sufficient for purposes of this opinion that, based on the record
and the parties’ briefs, there is no dispute that Carpenter did not file any of his certiorari material
until after August 29, 2022.

3
No. 2023AP5

novo. See State ex rel. Locklear v. Schwarz, 2001 WI App 74, ¶¶15-16, 242
Wis. 2d 327, 629 N.W.2d 30.

¶7 Under WIS. STAT. § 893.735, a petition for certiorari review of a
prison disciplinary decision must be filed within forty-five days of the date of the
decision. The deadline may not be extended, because the circuit court lacks subject
matter jurisdiction over a petition that is not timely filed. See State ex rel. Collins
v. Cooke, 2000 WI App 101, ¶5, 235 Wis. 2d 63, 611 N.W.2d 774. However, the
deadline may be tolled under certain circumstances, such as when circumstances
beyond the prisoner’s control prevent timely filing. See, e.g, State ex rel. Walker
v. McCaughtry, 2001 WI App 110, ¶¶13-16, 244 Wis. 2d 177, 629 N.W.2d 17.
Under equitable tolling doctrines, “tolling begins when the documents over which
prisoners have control have been mailed, and all of the documents over which
prisoners have no control have been requested.” Id., ¶18.

¶8 Carpenter contends that the circuit court should have granted his
requests to extend the time to file his petition based on Carpenter’s lack of access to
legal resources due to the COVID-19 pandemic. Carpenter also argues that he is
entitled to equitable tolling of the time to file the petition for the days that Carpenter
was waiting for the prison business office to provide him with the three-strikes
certification, which Carpenter needed to submit in support of a petition to waive the
filing fee for the certiorari action, and for other delays within the prison system.

¶9 Because a circuit court cannot extend the time to file a petition for a
writ of certiorari, see Collins, 235 Wis. 2d 63, we reject Carpenter’s argument that
the court should have granted his extension motions. We turn, then, to Carpenter’s
argument that he is entitled to equitable tolling of the deadline.

4
No. 2023AP5

¶10 Equitable tolling begins only “when the documents over which
prisoners have control have been mailed, and all of the documents over which
prisoners have no control have been requested.” Walker, 244 Wis. 2d 177, ¶18.
Here, Carpenter did not mail his certiorari petition or any supporting material until
after the August 29, 2022 deadline had passed. We therefore reject Carpenter’s
argument that he was entitled to tolling of the deadline while he was awaiting receipt
of the three-strikes certification. See id., ¶18 (“By requiring prisoners to submit
documents under their control within a designated period, the prisoner is treated
equitably and the legislative intent is fulfilled.”).

¶11 To the extent that Carpenter is arguing that his certiorari petition and
other required forms were not within his control based on his lack of access to
adequate legal resources, we reject that argument because a similar contention was
rejected in State ex rel. Tyler v. Bett, 2002 WI App 234, ¶2, 257 Wis. 2d 606, 652
N.W.2d 800.

¶12 In Tyler, we explained that “inadequacy of legal resources and
assistance available to prison inmates” does not “provide[] grounds for tolling of
the statutory deadline” to file a certiorari action. Id. Tyler argued that he was
“entitled to ‘special consideration in meeting the filing deadline because he was
faced with obstacles beyond his control which interfered with the processing of his
petition.’” Id., ¶17. Tyler “essentially claim[ed] that he should be entitled to have
the statute tolled because he did not have access to adequate legal resources and
assistance at the institution where he [was] incarcerated.” Id. We rejected that
argument, explaining that the tolling rule could not be used as a “remedy for alleged
inadequacies in prison legal resources.” Id.

5
No. 2023AP5

¶13 We recognized that “limitations on the access to legal resources and
assistance undoubtedly impact the ability of pro se prisoners to properly file legal
actions.” Id., ¶18. We also noted that “‘the fundamental constitutional right of
access to the courts requires prison authorities to assist inmates in the preparation
and filing of meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law.’” Id. (quoted source
omitted). We pointed out that, “[t]o that end,” administrative rules require each
prison to “‘maintain a law library and make legal materials available to inmates at
reasonable times and for reasonable periods’” and that “the Department of
Corrections ‘shall make reasonable efforts to ensure that adequate legal services are
available to indigent inmates.’” Id. (quoted sources omitted).

¶14 We explained, however, that claims of inadequate access to the courts
and resources “are appropriately addressed through the Inmate Complaint Review
System,” rather than as a basis to invoke “the judicially-created mailbox/tolling
rule.” Id., ¶¶19-20. This is so, we explained, because the “efficacy of the
[mailbox/tolling] rule depends on the ability of courts to easily resolve factual
questions regarding who did what and when in relation to the mailing, receipt and
processing of documents intended for court filing.” Id., ¶20. Thus, “[t]he rule was
not intended to spawn, nor can it support, open-ended inquiries into the adequacy
of prison legal resources, or discretionary judgments as to whether certain facts and
circumstances warrant relief from statutory deadlines while others do not.” Id.

¶15 Thus, under Tyler, we must reject Carpenter’s asserted right to tolling
based on his claims of inadequate legal resources within the prison system,

6
No. 2023AP5

including lack of access to the prison law library and alleged law librarian error.3
Those claims do not provide a basis to invoke equitable tolling. We affirm.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

3
Moreover, according to Carpenter’s August 31, 2022 motion to extend the time to file
his petition, the law librarian error occurred on August 30 and August 31, 2022, after Carpenter’s
August 29, 2022 deadline to file the petition.

7