In the

United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 07-1092

C ARLOS K. W ILLIAMS,
                                              Petitioner-Appellee,
                                v.

E DWIN G. B USS,
                                           Respondent-Appellant.
                         ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
               No. 2:05cv0134 AS—Allen Sharp, Judge.
                         ____________

     A RGUED JANUARY 9, 2008—D ECIDED A UGUST 14, 2008
                         ____________



  Before W OOD , SYKES, and T INDER, Circuit Judges.
  W OOD , Circuit Judge. Carlos K. Williams was sentenced
to 55 years in prison for the murder of Amondo Nelson.
Williams filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254, claiming that his trial counsel was
ineffective, and the district court granted his petition. We
find that the claim was procedurally defaulted, and no
cause and prejudice has been shown to excuse the default;
we therefore vacate the district court’s judgment and
remand for denial of the petition.
2                                               No. 07-1092

  On May 5, 1999, a dispute between Amondo Nelson and
Ramar Daniels—Williams’s brother—escalated into a
confrontation involving gunshots. Witnesses saw
Williams and Daniels both shoot Nelson through the
windows of a car in which Nelson was sitting.
   On the first morning of his trial, Williams’s lawyer
was notified of a surprise witness: Norman Richardson,
who had been standing behind the car when the confronta-
tion took place. (Daniels was tried and convicted sepa-
rately.) Counsel immediately realized that he had repre-
sented Richardson on a separate matter and was still
owed fees from that representation. Counsel alerted the
court to the potential conflict of interest, indicating that
he felt there would be no problem, even with cross-exami-
nation. In turn, the court discussed the matter with Wil-
liams. Williams said that he understood what was going
on, that he had “no problem,” and that he wanted to go to
trial on schedule. He was ultimately convicted and sen-
tenced to 55 years in prison. On direct appeal, he ques-
tioned only the sufficiency of the evidence. The Supreme
Court of Indiana affirmed his conviction on June 28, 2001.
  His state petition for post-conviction relief, first filed
on December 12, 2001, did not proceed smoothly. The
state public defender withdrew its representation of
Williams on August 9, 2002, leaving Williams to continue
pro se. While this was going on, Williams was found to
be mentally disabled by the Social Security Administra-
tion (by letter dated December 3, 2002, with a finding
that his disability dated back to 1988). This letter appar-
ently was not filed with the court. Based on the record
No. 07-1092                                                 3

before it, on June 3, 2003, the trial court denied post-
conviction relief, stating that Williams “has presented no
evidence . . . that he was ever declared mentally handi-
capped.”
   At this point, matters became more complicated. Wil-
liams filed a notice of appeal and later, on October 21, 2003,
a brief, but he did not file the required appendix. This
rendered his submission nonconforming according to
the rules of the court. The state court of appeals gave
Williams 30 days to cure the filing defects in his petition,
starting the clock on February 26, 2004. He did nothing
within the permitted time, leading the State to file a
motion to dismiss for lack of compliance with the order
on May 17, 81 days after the court’s order issued. The
state court finally dismissed the petition with prejudice
for failure to prosecute on June 1, 2004, Day 96. Williams
did not file for transfer to the Supreme Court of Indiana.
Instead, he turned to federal court and filed a petition
for a writ of habeas corpus, signing it on March 29, 2005,
with an official filing date of April 18.
   The State argues that Williams’s petition was untimely.
A prisoner has one year to file a petition for a writ of
habeas corpus, starting (as pertinent here) from “the date
on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A). Williams’s direct
review concluded and his conviction became final on
September 26, 2001. The time during which a “properly
filed application for State post-conviction or other collat-
eral review” is pending, however, is not counted against
4                                                 No. 07-1092

the federal period of limitation. 28 U.S.C. § 2244(d)(2).
Williams filed for state relief 77 days into his one-year
clock.
   As the State sees it, the appellate court dismissed Wil-
liams’s cause on June 1, restarting the clock with 288 days
left. His one-year clock would expire on March 16, 2005,
which would make his filing 13 days late. Williams con-
tends that the case was still pending during the 30-day
period when he was entitled to file for transfer to the
Supreme Court of Indiana, and it did not become final
(thereby restarting the one-year clock) until July 1. If he
is right, then his limitations period did not end until
April 15, 2005, and his petition was timely.
  The district court thought that it could avoid deciding
whose account was correct by holding that Williams’s time
for filing his federal petition was equitably tolled. We
have not, however, ruled whether or not equitable tolling
should be available at all in a § 2254 context. Johnson v.
Chandler, 224 F. App’x 515, 519 (7th Cir. 2007); Williams v.
Sims, 

, 963-64 (7th Cir. 2004); Modrowski v.
Mote, 

, 967 n.12 (7th Cir. 2003) (reserving the
issue explicitly). Equitable tolling requires “extraordinary
circumstances far beyond the litigant’s control . . . .” United
States v. Marcello, 

, 1010 (7th Cir. 2000)
(denying equitable tolling when counsel’s father passed
away weeks before deadline). “Generally, a litigant
seeking equitable tolling bears the burden of establishing
two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way.” Pace v. DiGuglielmo, 

, 418
(2005). Here, the district court criticized the grounds on
No. 07-1092                                                   5

which Williams requested equitable relief (calling the
letter from the Social Security Administration “a very
slender reed to bottom equitable tolling”), but granted it
anyway, seemingly because Williams was appearing pro se
and he was only 13 days late. Williams v. Davis, 2006 U.S.
Dist. LEXIS 29360 at *4-5 (Apr. 28, 2006, N.D. Ind.). Espe-
cially when the very availability of equitable tolling for
habeas corpus petitioners is dubious in this circuit, this
reasoning is insufficient under the high Pace standard. The
district court should have proceeded to consider the
timing problem directly.
  Although the State argues that our decision in Fernandez
v. Sternes, 

(7th Cir. 2000), governs this situa-
tion by mandating that the tolling period ends at the
earlier date if no petition for further review is filed, a
closer look at Fernandez shows that it does not go that far.
In fact, we explicitly set that question aside in Fernandez. 

(“It is unnecessary to decide, and we therefore
reserve, the question whether time provided for filing a
petition or appeal to a higher court is treated as time
during which an application is pending, if the time
expires without a filing.”). Here, too, we can reserve
further consideration of the intricacies of the timing rules.
The one-year time limit is not jurisdictional. Taliani v.
Chrans, 

, 598 (7th Cir. 1997).
  Williams cannot prevail for an equally compelling
reason: his ineffective assistance claim was procedurally
defaulted. The State asserts that he never presented this
claim to the state courts, and Williams does not indicate
otherwise. Even if it had been presented on the merits in
6                                               No. 07-1092

the petition before the appellate court (and if we assumed
that the defective petition was good enough for this
purpose), Williams did not file for transfer to the Supreme
Court of Indiana once his petition was dismissed with
prejudice. This was not a step that he was entitled to omit,
even for a post-conviction petition and even if review (as
it usually is at that level) is discretionary. O’Sullivan v.
Boerckel, 

, 848 (1999).
  Williams tacitly acknowledges this in his briefs before
this court. He offers two reasons why the state court of
appeals should have forgiven his nonconforming filings,
and (we assume generously) that support a finding of
good cause for the procedural default. See Dretke v. Haley,

, 388 (2004), and Wainwright v. Sykes, 

, 87 (1977). But good cause alone is not enough (even if
we were inclined to find it on this record): before we
can overlook a procedural default, we must find both
cause and prejudice, and Williams never demonstrates
the latter. See 

(grounding the cause-
and-prejudice requirement in considerations of “finality,
comity, and the orderly administration of justice”); Wain-

(discussing the incorporation of
the cause-and-prejudice standard into federal habeas
corpus law).
  In any event, we are not persuaded that Williams was
able to demonstrate good cause to excuse his procedural
default. Williams asserts that he did not have proper
access to the prison law library through no fault of his
own. This court examines claims of cause based on lack of
access to a library on a case-by-case basis. See, e.g.,
O’Donnell v. Davis, 115 F. App’x 869, 871-72 (7th Cir.
No. 07-1092                                                 7

2004). Williams does not explain why the lack of access
to the library hindered his case: the deficiencies indicated
by the state appeals court were clerical, not substantive,
and may well have been curable without access to the
library. Notably, Williams explained this problem to the
state court in his letter of June 1, 2004, and the state
court allowed him 30 extra days in which to file proper
documents. Even afterward, Williams failed to file for
transfer, with no explanation of why he was still hampered
by lack of access to the law library. On this record, Wil-
liams cannot rely on lack of access to the library to sup-
port cause for his procedural default.
  Williams also suggests that his mental incapacity pro-
vides cause, but once again the record does not support
him. This court has held that “borderline mental retarda-
tion” diagnosed by a neuropsychologist does not con-
stitute cause. Harris v. McAdory, 

, 668-69 (7th
Cir. 2003) (finding that such a condition was not suffi-
ciently external to the petitioner to support cause for
default); see also Murray v. Carrier, 

, 488 (1986)
(“[T]he existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show . . . some
objective factor external to the defense[.]”). In Williams’s
case, the diagnosis came from the Social Security Adminis-
tration rather than a neuropsychologist, which only
weakens his argument for cause: the Harris court re-
jected the neuropsychologist’s opinion in part because it
was conclusory. See 

. The same
criticism applies to the form letter from the SSA.
 The district court reached the merits of the petition
without discussing the procedural default. Williams, 2006
8                                               No. 07-1092

U.S. Dist. LEXIS 29360 at *5. It should not have done so,
because an unexcused procedural default ends the case.
See, e.g., Daniel v. Knight, 

, 435 (7th Cir.
2007). Williams procedurally defaulted his ineffective
assistance claim by failing to present it fully to the state
courts. He has not shown the type of cause that would
excuse this defect, nor has he made any argument demon-
strating prejudice. In light of his procedural default, we
therefore V ACATE the district court’s judgment granting
the writ and R EMAND with directions to deny the petition.




                           8-14-08