White v. Stenseth

U.S. District Court, District of Minnesota August 30, 2024

Trial Court Opinion

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                

WILLIAM DEMONT WHITE, JR.,         Case No. 24-CV-0261 (PAM/JFD)        

              Petitioner,                                               

v.                              REPORT AND RECOMMENDATION               

LISA STENSETH, Warden Rush City                                         
Correctional Facility, Minnesota,                                       

              Respondent.                                               


   Petitioner William Demont White, Jr., was convicted in state court on counts of 
second-degree  intentional  murder,  first-degree  assault,  and  arson.  See  State v.  White 
(“White I”), No. A19-1398,

2020 WL 4743517

, at *1 (Minn. Ct. App. Aug. 17, 2020) 
(affirming convictions on direct appeal); White v. State (“White II”), No. A22-1848,

2023 WL 5695630

, at *1 (Minn. Ct. App. Sept. 5, 2023) (affirming denial of petition for
postconviction relief). Mr. White has filed a petition for a writ of habeas corpus challenging
the legality of those convictions. See generally Petition [Dkt. No. 1]. The petition is
untimely and should be denied on that basis.
I. BACKGROUND
The Minnesota Court of Appeals summarized the events leading to Mr. White’s
conviction as follows:
This case arises out of a shooting that caused the death
of J.D. and injury to N.P. Trial testimony establishes the
following. Appellant William White, Jr., went to a bar with
[Vince Laster] and N.J., and the two victims, J.D. and N.P. In
the early morning hours of February 16, the group returned to
the neighborhood where J.D. stayed with his sister, K.D., and
her fiancé, P.H. After returning to the neighborhood, a
confrontation broke out between appellant and J.D. Both N.P.
and [Laster] witnessed the confrontation. N.P. testified that a
“scuffle” broke out between J.D. and appellant, and N.P.
approached the two men. N.P. punched appellant and then
turned to walk away. In response, appellant “pistol-whipped”
N.P. from behind. Next, N.P. was shot from behind.

[Laster] also saw appellant and J.D. “fighting” and
“wrestling” with a gun in the street. [Laster] heard gunshots
and saw N.P. fall to the ground, screaming. [Laster] did not see
who shot N.P. [Laster] testified that, “[a]t that time, [J.D.] was
on the ground too.” N.J. was also present during the fight, and
[Laster] testified that N.J. removed something from the car,
which he believed was a cell phone or a charger. After the
shooting, [Laster], N.J., and appellant got into J.D.’s car and
drove away.

J.D.’s sister, K.D., heard the gunshots and woke up P.H.
P.H. went outside and saw N.P. “screaming” and “bleeding
out” on the ground. P.H. ran back inside to call for an
ambulance. K.D. and P.H. then found J.D. lying on the porch,
“[e]xhausted and hurt.” K.D. and P.H. determined that they
could not wait for an ambulance and placed the two injured
men into K.D.’s car. K.D. began driving to the hospital, but a
police officer pulled her car over before she reached the
hospital. The officer testified that J.D. was bleeding and
moaning in the front passenger seat. N.P. was lying in the
backseat with his pants down and blood on his legs and on his
head. The officer requested more help and several police
officers arrived on the scene and provided medical care to J.D.
and N.P. Two ambulances arrived and took J.D. and N.P. to the
hospital. J.D. was pronounced dead at the hospital as a result
of blood loss from multiple gunshot wounds.

After driving away, appellant, [Laster] and N.J. made
arrangements to switch J.D.’s car with another car. The three
men left J.D.’s car on a side street. After switching cars, the
three men went to a gas station to purchase a gas can. The men
filled the gas can with fuel but left the station without paying.
Later that morning, the fire department received an alarm for a
vehicle fire involving J.D.’s car. J.D.’s car was located about
one to two miles away from the gas station. Firefighters arrived
at the scene to find that the fire was “fully involved ...
throughout the vehicle” and discovered a gas can near the car.
An investigator took samples from the car to determine
whether there was a presence of an ignitable liquid in the
passenger compartment. One of these samples tested positive
for the presence of an ignitable liquid. Investigators confirmed
that the car belonged to J.D.

A forensic scientist with the Bureau of Criminal
Apprehension (the BCA), examined the bullet fragments found
outside K.D.’s house. The BCA analyst determined that the
fragment was from a .38 caliber bullet. The BCA analyst also
examined a bullet extracted from J.D.’s body and determined
that it was also a .38 caliber bullet and had been fired from the
same gun that produced the bullet fragment by K.D.’s house.

White I,

2020 WL 4743517

, at *1-2.
Mr. White was charged with two counts of first-degree murder, four counts of
second-degree murder, one count of first-degree assault, one count of second-degree arson,
and seven counts of crimes committed for the benefit of a gang. Id. at *2. After a jury trial,
the district court dismissed the seven counts of crimes committed for the benefit of a gang,
leaving the jury to deliberate on the remaining eight counts. Id. The jury returned a guilty
verdict on four of those counts—two counts of second-degree murder (one count for the
intentional murder of J.D., the second count for felony murder), one count of first-degree
assault, and one count of second-degree arson. Id.
Twice Mr. White has challenged those convictions in the state court—once on direct
appeal, and once through a petition for postconviction relief. On direct appeal, Mr. White
argued that he was prejudiced by the joinder of his trial with that of his codefendant; that
the district court should not have admitted the victim’s out-of-court identification of him
as the shooter; that there was insufficient evidence to convict him of first-degree assault;
that African-Americans were not fairly represented in the venire pool; and that the district

court should not have accepted the verdict when the jury could not reach agreement on one
of the counts against him. All five arguments were rejected by the Minnesota Court of
Appeals. See White I,

2020 WL 4743517

, at *2-6. The Minnesota Supreme Court declined 
review of the case on October 20, 2020.                                   
   On August 10, 2022,1 Mr. White filed a petition for postconviction relief in state 
court raising an additional six claims. Only one of those six claims requires elucidation 

here. Mr. White claimed in his petition for postconviction relief—and he claims again in 
his habeas petition now before the Court—that the State violated his Brady2 rights by 
failing to disclose that Laster, who testified against him, was on parole at the time of the 
offense and at the time of the trial. See White II,

2023 WL 5695630

, at *6. The district 
court rejected the claim; the Minnesota Court of Appeals affirmed the denial: 

        White argues that the prosecutor knew—but did not inform        
        him—that Laster was on parole at the time of the February       
        2018 shooting. He contends that he acquired information after   
        trial proving Laster’s parole status. But as the postconviction 
        court reasoned, White could have discerned Laster’s parole      
        status based on Laster’s criminal-history information that the  
        prosecution  disclosed  to  him  before  trial.  And  the  record 
        suggests  that  the  information  he  now  claims  is  newly    
        discovered was in fact available to him before his trial. We add 
        that  White  also  does  not  convincingly  show  that  he  was 

1 Mr. White asserts in his briefing that the petition for postconviction relief was filed on 
August 9, 2022, but the electronic docket for Mr. White’s case maintained by the state 
courts reflects that the petition was filed on August 10, 2022. The minor discrepancy is 
not material to the outcome of this case and need not be definitively resolved. 

2 See Brady v. Maryland,

373 U.S. 83

(1963).
prejudiced by any inability to use Laster’s parole status to
impeach him. The jury heard about Laster’s criminal
convictions and his favorable plea deal in this case. His parole
status would have added little weight to the information
already available to impeach Laster’s credibility.

Id. at *6. On December 19, 2023, the Minnesota Supreme Court denied review of the
decision of the Minnesota Court of Appeals affirming the denial of postconviction relief.
Mr. White filed the habeas petition now before the Court on February 1, 2024,
raising four grounds for relief: (1) the Brady claim described above; (2) a claim that his
trial should not have been joined with that of his codefendant; (3) claims of ineffective
assistance of trial and appellate counsel; and (4) claims that his right to trial before an
impartial jury had been violated in various respects. See generally Petition. This Court
ordered Respondent to show cause why the Petition should not be granted, but also alerted
the parties that the Petition appeared to be untimely. See Order of Feb. 9, 2024 [Dkt. No. 3].
Accordingly, Respondent was granted permission to file a motion to dismiss the petition
on timeliness grounds (if Respondent intended to invoke a timeliness defense) in lieu of
filing a complete answer under Rule 5 of the Rules Governing Section 2254 Cases in the
United States District Courts. See id. Respondent did file a motion to dismiss on timeliness
grounds in lieu of an answer, and that motion is now fully briefed and ready for review.
II. ANALYSIS

A. Legal Framework
Under

28 U.S.C. § 2244

(d),                                           
        (1) A 1-year period of limitation shall apply to an application 
        for a writ of habeas corpus by a person in custody pursuant 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          
             application 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.          

        (2) The 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 shall not be counted     
        toward any period of limitation under this subsection.          

Mr. White is a “person in custody pursuant to the judgment of a State court,”

28 U.S.C. § 2244

(d)(1), and thus § 2244(d) governs the timeliness of the claims now brought by Mr. 
White before the Court.                                                   
   A few words are necessary at the outset regarding the operation of § 2244(d). First, 
§ 2244(d)(1) provides a one-year limitations period for prisoners to seek habeas relief in 
federal court. That one-year period, however, might begin on any of four possible dates, 
depending upon the claim being raised. Usually, a claim must be brought within one year 
of  the  petitioner’s  conviction  having  become  final  in  state  court,  see

28 U.S.C. § 2244

(d)(1)(A), but in circumstances where this would have been impossible—where the 
State was denying access to the federal courts, or where the claim was not available because 

the Supreme Court had not yet recognized the constitutional right on which the claim is 
based, or where the factual predicate of the claim could not reasonably have been known 
to the petitioner—then the prisoner is given an additional year from the time that the 
impediment is removed in which to present that claim, see

28 U.S.C. § 2244

(d)(1)(B)-(D). 
The limitations period for claims within a single habeas petition might therefore begin on 
different dates—one claim, for example, might need to be raised within one-year of the 

conviction becoming final, while the limitations period for another claim might not begin 
until the factual predicate of the claim could have been discovered through the exercise of 
due diligence. But a single timely habeas claim does not resurrect other habeas claims 
whose time has passed. See DeCoteau v. Schweitzer,

774 F.3d 1190, 1192

 (8th Cir. 2014). 
   Second, a finding that a habeas petition is untimely under § 2244(d) does not quite 

end the matter, because § 2244(d) “is subject to equitable tolling in appropriate cases.”3 
Holland v. Florida,

560 U.S. 631, 645

 (2010). But these “appropriate cases” are rare: The 
limitations period may be equitably tolled only where a petitioner shows “‘(1) that he has 
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 
his  way’  and  prevented  timely  filing.”  Holland,

560 U.S. at 649

  (quoting  Pace  v. 



3  A  limitations  defense  may  also  be  overcome  where  a  habeas  petitioner  makes  an 
appropriately convincing case that he is actually innocent of the offense, see McQuiggin v. 
Perkins,

569 U.S. 383, 386

 (2013), but Mr. White does not argue that the actual-innocence 
exception applies in this case.                                           
DiGuglielmo,

544 U.S. 408, 418

 (2005)). It is the petitioner’s burden to show that the 
limitations period should be equitably tolled. See Pace,

544 U.S. at 418

. 

                        B. Section 2244(d)                              
   Respondent seeks dismissal of Mr. White’s habeas petition due to untimeliness. In 
determining whether the habeas petition is untimely, this Court must first determine when 
the limitations period for Mr. White’s claims began to run.               
   Of the four potential dates provided by § 2244(d)(1) for the beginning of the 
limitations period, only two are relevant to this case. Mr. White does not allege that there 

was an “impediment to filing an application created by State action in violation of the 
Constitution or laws of the United States,”

28 U.S.C. § 2244

(d)(1)(B), and his claims do 
not depend upon a constitutional right that was only recently recognized by the Supreme 
Court, see

28 U.S.C. § 2244

(d)(1)(C). The limitations period for Mr. White’s claims 
therefore  began  either  when  the  judgment  in  his  case  became  final,  see

28 U.S.C. § 2244

(d)(1)(A), or when “the factual predicate of the claim or claims presented could have 
been discovered through the exercise of due diligence,”

28 U.S.C. § 2244

(d)(1)(D). 
   The date established by § 2244(d)(1)(A) can be calculated with precision—and, 
once calculated, it is apparent that any claim brought by Mr. White that is governed by 
§ 2244(d)(1)(A)  is  untimely.  The  Minnesota  Supreme  Court  declined  review  of  Mr. 

White’s direct appeal on October 20, 2020. Mr. White was then entitled to seek a petition 
for a writ of certiorari from the Supreme Court of the United States. He did not do so, and 
the judgment in his case became final when the deadline for seeking a writ of certiorari 
expired. See Jihad v. Hvass,

267 F.3d 803, 804-05

 (8th Cir. 2001). A litigant ordinarily has 
ninety days in which to seek review from the Supreme Court of the United States, but at 
the time that the Minnesota Supreme Court declined review of Mr. White’s conviction, the 

certiorari deadline had been extended to 150 days on account of the COVID-19 pandemic. 
See U.S. Sup. Ct. R. Filing Extensions Order (issued Mar. 19, 2020, rescinded July 19, 
2021). Accordingly, the limitations clock for any claim governed by § 2244(d)(1)(A) began 
running 150 days after October 20, 2020, or on March 19, 2021. Mr. White therefore would 
have had one year, or until March 21, 2022,4 in which to seek relief on any claims whose 
timeliness was governed by § 2244(d)(1)(A). He did not file his habeas petition until 

February 1,  2024.  To  be  sure,  for  part  of  that  time,  Mr.  White  had  been  seeking 
postconviction relief in the state courts, and that time would not count against the one-year 
limitations  period.  See

28 U.S.C. § 2244

(d)(2).  But  Mr.  White  did  not  commence 
postconviction proceedings in state court until August 10, 2022—that is, four months after 
the federal limitations period established by § 2244(d)(1)(A) had already expired. 

   So far as this Court can tell, Mr. White does not dispute that any claim governed by 
§ 2244(d)(1)(A) falls outside of the statutory limitations period. Instead, Mr. White insists 
that one of his claims—his Brady claim—is governed by § 2244(d)(1)(D), because the 
factual predicate of the Brady claim “did not become available to him until June 10, 2022, 
when he received the Certified Disposition from the Clerk of the Circuit Court of Cook 

County” showing that Laster had been on probation when the crime and trial occurred. See 


4 Exactly one year after March 19, 2021, is (of course) March 19, 2022, but that date was 
a Saturday, and Mr. White would have been entitled until the next business day to file his 
habeas petition. See Fed. R. Civ. P. 6(a)(1)(C).                          
Pet. Br. at 21 [Dkt. No. 15]. If the limitations period for the Brady claim began on June 10, 
2022, then—after accounting for time in which the limitations period was tolled by 

§ 2244(d)(2) due to ongoing state-court postconviction proceedings—Mr. White’s claim 
under Brady would be timely.                                              
   There are three problems with Mr. White’s argument, however. The first is that the 
argument does nothing to salvage any of his other claims for relief. Even if § 2244(d)(1)(D) 
governed  the  timeliness  of  his  Brady  claim,  §  2244(d)(1)(A)  would  govern  still  the 
timeliness of the remaining claims. And as explained above, any claims governed by 

§ 2244(d)(1)(A) are plainly untimely.                                     
   Second, Mr. White’s argument that he could not have known that Laster was on 
probation until he was handed a certified disposition from the clerk of court where Laster’s 
criminal proceedings had been conducted is not convincing. Laster’s criminal history was 
not esoteric information; his status as a parolee would have been available to Mr. White at 

any point during or after his criminal proceedings. Nor is this a case in which a factual 
predicate,  though  technically  available,  is  so  non-obvious  as  to  be  practically 
indiscoverable. Mr. White himself describes Laster as “the prosecution’s primary witness 
against him,” Pet. Br. at 23, and he was aware that Laster had a criminal history, see White 
II,

2023 WL 5695630

, at *6 (noting that “[t]he jury heard about Laster’s criminal

convictions . . . .”).5 Laster’s credibility would have been an obvious matter of contention.

5 In his briefing, Mr. White characterizes this argument (when made by Respondent) as
placing the burden on him to have discovered the alleged Brady violation. But this puts the
cart before the horse. The question before the Court is not whether the State of Minnesota
violated its duties under Brady or even whether Mr. White has adequately pleaded such a
Third, the state trial court that denied Mr. White’s petition for postconviction review
concluded that Mr. White could have learned of Laster’s parolee status, and in doing so,

made the following factual determinations:
The record reflects that the prosecutor sought and received
permission from the court to disclose to Petitioner’s counsel a
printout of Vance Laster’s criminal history from Illinois law
enforcement agencies, and on a later date, relevant portions of
Vance Laster’s Presentence Investigation Report, which was
prepared after Laster’s plea and before White’s trial. The exact
contents of the Illinois law enforcement criminal history
provided is not in the record before the court. However, the PSI
document included a record of Laster’s criminal convictions,
which include several felony convictions in Illinois, the latest
of which resulted in a thirty six month prison sentence imposed
on March 24, 2016. The conduct alleged in the [prosecution
against Mr. White] occurred in February of 2018, thus White
and his trial counsel clearly knew that Laster had been released
from prison in Illinois before thirty six months had elapsed. . . .
Petitioner’s counsel asserts that Illinois Statues provide for
parole “good time release” after service of 50% of a prison
sentence. This statute was presumably accessible at the time of
trial, as it is today.

State v. White, No. 05-CR-18-617, Order of October 31, 2022 (Minn. Dist. Ct.).
“In a proceeding instituted by an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct.”

28 U.S.C. § 2254

(e)(1). The excerpt 
quoted above is chock-full of factual findings—that the prosecution turned over documents 
related to Laster’s criminal history; that the conviction for which Laster was convicted was 
included on at least one of those documents; and that anyone could have known that Laster 

claim, but instead whether the factual predicate of the Brady claim could have been known 
to Mr. White with reasonable diligence at the time of his trial. It could have. 
was on parole based on the information contained in those documents given the operation 
of Illinois law—and Mr. White has not rebutted any of those findings by clear and 

convincing evidence. Armed with that information, Mr. White or his attorney could have, 
with reasonable diligence, investigated prior to trial into whether Laster was on parole. 
   The  timeliness  of  Mr.  White’s  Brady  claim  is  therefore  governed  by 
§ 2244(d)(1)(A),  not  § 2244(d)(1)(D).  Because  the  Brady  claim  is  governed  by 
§ 2244(d)(1)(A), Mr. White has sought habeas relief on the claim in federal court too late. 
That claim, and all of Mr. White’s other claims, fall habeas outside of the limitations period 

established by § 2244.                                                    
                       C. Equitable Tolling                             
   Mr. White could nevertheless avoid the effects of § 2244(d) by showing that he is 
entitled to equitable tolling—that is, “‘(1) that he has been pursuing his rights diligently, 
and (2) that some extraordinary circumstance stood in his way’ and prevented timely 

filing.” Holland,

560 U.S. at 649

 (quoting Pace,

544 U.S. at 418

). Mr. White makes such 
an effort, arguing that the COVID-19 pandemic caused him to be unable to file a petition 
for postconviction relief in state court until a year after the judgment in his case had become 
final, by which point the federal limitations window for habeas relief had already closed. 
   Much of Mr. White’s briefing on the subject of equitable tolling establishes the 

proposition that the pandemic has been cited by courts as a basis for allowing petitioners 
to file a habeas petition that would otherwise be untimely. But the fact that COVID-19 
prevented some prisoners from seeking habeas relief on time despite their best efforts does 
not mean that COVID-19 is an all-purpose, get-out-of-untimeliness-free card. See United 
States v. Sayonkon, No. 16-CV-0265(2) (ADM/HB),

2022 WL 607474

, at *3 (D. Minn. 
Mar. 1, 2022) (collecting cases). A habeas petitioner pointing to the pandemic as the reason 

that he did not seek habeas relief within the limitations window still must establish how, 
specifically, the pandemic prevented him from prosecuting his claims. See Holland,

560 U.S. at 650

.
In his briefing, Mr. White does not even attempt to tie the circumstances of his tardy
filing to the ongoing pandemic:
White contends he has been pursuing his rights diligently and
that Covid-19 constituted extraordinary circumstances beyond
his control that resulted in his petition being untimely due to
time that ran during the heart [of] the pandemic. During these
times, states like Minnesota tolled many court filing deadlines
and entities like the United States Supreme Court, on March
19, 2020, extended the cert filing deadline from 90 to 150 days,
which reflects the reality of the time, which was that nothing
was clear, everything seemed and felt dangerous, and nearly
every aspect of life was impacted in some way or another. It is
with these circumstances in mind that White respectfully
requests that this Court exercise its equitable authority to
review the merits of his claims to ensure that extreme and
extraordinary circumstances that arose during the uncertainty
of the initial Covid-19 lockdowns.

Pet. Br. at 32. But this is an argument that would apply to any habeas petitioner following
the onset of the pandemic. Plainly, though, not every habeas petitioner whose limitations
period would have expired following the onset of the COVID-19 pandemic is entitled to
equitable tolling. Cf. United States v. Henry, No. 2:17-CR-0180,

2020 WL 7332657

, at *4 
(W.D. Pa. Dec. 14, 2020) (“The bottom line is that the COVID-19 pandemic does not 
automatically warrant equitable tolling for any petitioner who seeks it on that basis.”). 
   Mr. White’s claim to entitlement to equitable tolling on account of the pandemic is 
especially flimsy. For one thing, Mr. White’s filing deadline did not fall within the period 

when—as he puts it—“nothing was clear, everything seemed and felt dangerous, and 
nearly every aspect of life was impacted in some way or another.” Pet. Br. at 32. Under 
§ 2244(d)(1)(A), Mr. White was not required to file his habeas petition until March 21, 
2022—that is, more than two years after the onset of the pandemic. By July 2021, with 
eight months yet remaining on Mr. White’s federal habeas limitations clock, things had 
sufficiently  returned  to  normal  that  the  Supreme  Court  rescinded  its  temporary  rule 

extending the deadline for filing a petition for a writ of certiorari. By this Court’s count, 
171  habeas  corpus  petitions  were  filed  in  this  District  during  Mr.  White’s  one-year 
limitations period (March 19, 2021, though March 21, 2022), plus another 31 motions for 
relief under

28 U.S.C. § 2255

. Many, many prisoners were capable of timely seeking 
postconviction  relief  during  the  period  that  Mr.  White  alleges  COVID-19  posed  an 

insuperable barrier to him doing so.                                      
   To be sure, Mr. White would have been required to present his claims to the state 
courts before coming to federal court. But there is no reason to believe that the state courts 
were still functioning abnormally by the time that Mr. White’s criminal judgment had 
become final or for the year thereafter; certainly, Mr. White provides no such evidence. 

Moreover, even if there had been continuing impediments to seeking relief in the state 
courts caused by COVID-19, Mr. White could have presented his claims to this Court and 
sought a stay of the federal proceedings so that he could first exhaust his claims in state 
court. See Rhines v. Weber,

544 U.S. 269, 271-72

 (2005). And for at least some of this 
period (though the record is unclear regarding exactly how much), Mr. White—unlike most 
of  the  prisoners  who,  notwithstanding  COVID-19,  were  capable  of  timely  seeking 
postconviction relief—was represented by counsel.6                        

   Mr. White has not shown that he acted with the necessary diligence, and he has not 
shown that any extraordinary impediment stood in his way prior to seeking habeas relief. 
He has no colorable entitlement to equitable tolling.                     
                         D. Conclusion                                  
   Mr. White’s habeas petition needed to be filed by no later than March 21, 2022. He 

missed that deadline, and he has not established a basis for equitably tolling the deadline. 
Accordingly, Respondent’s motion to dismiss should be granted and the habeas petition 
should be denied. Finally, should this matter be dismissed on timeliness grounds, this Court 
does not believe that “jurists of reason would find it debatable whether the district court 
was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484

 (2000). Mr. 

White  therefore  should  not  be  issued  a  certificate  of  appealability.  See

28 U.S.C. § 2253

(c)(1).                                                             


6 Mr. White’s state-court postconviction proceedings concluded on December 19, 2023, 
when the Minnesota Supreme Court declined review of his case. His federal habeas petition 
was not filed until February 1, 2024. Mr. White was represented by the same counsel in 
both proceedings. “Where a § 2255 proceeding is equitably tolled, only enough time will 
remain on the game clock for the litigant to take a single shot (file the action), regardless 
of how long external obstacles might previously have barred the litigant from acting.” 
United States v. Buckhanan, No. 21-CR-74 (MJD/LIB),

2023 WL 9502153

, at *3 (D.
Minn. Aug. 31, 2023). Mr. White does not explain the six-week delay in preparing and
filing a habeas petition whose claims had already been presented and developed in state
court. This six-week delay, taken alone, would have rendered dubious any entitlement to
equitable tolling that Mr. White might have had.
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT

IS HEREBY RECOMMENDED THAT:
1. The motion to dismiss of petitioner Lisa Stenseth [Dkt. No. 12] be
GRANTED.
2. The petition for a writ of habeas corpus of petitioner William Demont White,
Jr. [Dkt. No. 1] be DENIED.
3. This matter be DISMISSED.

4. No certificate of appealability be issued.
Dated: August 30, 2024 _s/ John F. Docherty_______________
JOHN F. DOCHERTY
United States Magistrate Judge

NOTICE

Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. See Local
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set
forth in Local Rule 72.2(c).

Trial Court Opinion

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                

WILLIAM DEMONT WHITE, JR.,         Case No. 24-CV-0261 (PAM/JFD)        

              Petitioner,                                               

v.                              REPORT AND RECOMMENDATION               

LISA STENSETH, Warden Rush City                                         
Correctional Facility, Minnesota,                                       

              Respondent.                                               


   Petitioner William Demont White, Jr., was convicted in state court on counts of 
second-degree  intentional  murder,  first-degree  assault,  and  arson.  See  State v.  White 
(“White I”), No. A19-1398,

2020 WL 4743517

, at *1 (Minn. Ct. App. Aug. 17, 2020) 
(affirming convictions on direct appeal); White v. State (“White II”), No. A22-1848,

2023 WL 5695630

White I,

2020 WL 4743517

court should not have accepted the verdict when the jury could not reach agreement on one
of the counts against him. All five arguments were rejected by the Minnesota Court of
Appeals. See White I,

2020 WL 4743517

, at *2-6. The Minnesota Supreme Court declined 
review of the case on October 20, 2020.                                   
   On August 10, 2022,1 Mr. White filed a petition for postconviction relief in state 
court raising an additional six claims. Only one of those six claims requires elucidation 

here. Mr. White claimed in his petition for postconviction relief—and he claims again in 
his habeas petition now before the Court—that the State violated his Brady2 rights by 
failing to disclose that Laster, who testified against him, was on parole at the time of the 
offense and at the time of the trial. See White II,

2023 WL 5695630

, at *6. The district 
court rejected the claim; the Minnesota Court of Appeals affirmed the denial: 

        White argues that the prosecutor knew—but did not inform        
        him—that Laster was on parole at the time of the February       
        2018 shooting. He contends that he acquired information after   
        trial proving Laster’s parole status. But as the postconviction 
        court reasoned, White could have discerned Laster’s parole      
        status based on Laster’s criminal-history information that the  
        prosecution  disclosed  to  him  before  trial.  And  the  record 
        suggests  that  the  information  he  now  claims  is  newly    
        discovered was in fact available to him before his trial. We add 
        that  White  also  does  not  convincingly  show  that  he  was 

1 Mr. White asserts in his briefing that the petition for postconviction relief was filed on 
August 9, 2022, but the electronic docket for Mr. White’s case maintained by the state 
courts reflects that the petition was filed on August 10, 2022. The minor discrepancy is 
not material to the outcome of this case and need not be definitively resolved. 

2 See Brady v. Maryland,

373 U.S. 83

A. Legal Framework
Under

28 U.S.C. § 2244

(d),                                           
        (1) A 1-year period of limitation shall apply to an application 
        for a writ of habeas corpus by a person in custody pursuant 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          
             application 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.          

        (2) The 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 shall not be counted     
        toward any period of limitation under this subsection.          

Mr. White is a “person in custody pursuant to the judgment of a State court,”

28 U.S.C. § 2244

(d)(1), and thus § 2244(d) governs the timeliness of the claims now brought by Mr. 
White before the Court.                                                   
   A few words are necessary at the outset regarding the operation of § 2244(d). First, 
§ 2244(d)(1) provides a one-year limitations period for prisoners to seek habeas relief in 
federal court. That one-year period, however, might begin on any of four possible dates, 
depending upon the claim being raised. Usually, a claim must be brought within one year 
of  the  petitioner’s  conviction  having  become  final  in  state  court,  see

28 U.S.C. § 2244

(d)(1)(A), but in circumstances where this would have been impossible—where the 
State was denying access to the federal courts, or where the claim was not available because 

the Supreme Court had not yet recognized the constitutional right on which the claim is 
based, or where the factual predicate of the claim could not reasonably have been known 
to the petitioner—then the prisoner is given an additional year from the time that the 
impediment is removed in which to present that claim, see

28 U.S.C. § 2244

(d)(1)(B)-(D). 
The limitations period for claims within a single habeas petition might therefore begin on 
different dates—one claim, for example, might need to be raised within one-year of the 

conviction becoming final, while the limitations period for another claim might not begin 
until the factual predicate of the claim could have been discovered through the exercise of 
due diligence. But a single timely habeas claim does not resurrect other habeas claims 
whose time has passed. See DeCoteau v. Schweitzer,

774 F.3d 1190, 1192

 (8th Cir. 2014). 
   Second, a finding that a habeas petition is untimely under § 2244(d) does not quite 

end the matter, because § 2244(d) “is subject to equitable tolling in appropriate cases.”3 
Holland v. Florida,

560 U.S. 631, 645

 (2010). But these “appropriate cases” are rare: The 
limitations period may be equitably tolled only where a petitioner shows “‘(1) that he has 
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 
his  way’  and  prevented  timely  filing.”  Holland,

560 U.S. at 649

  (quoting  Pace  v. 



3  A  limitations  defense  may  also  be  overcome  where  a  habeas  petitioner  makes  an 
appropriately convincing case that he is actually innocent of the offense, see McQuiggin v. 
Perkins,

569 U.S. 383, 386

 (2013), but Mr. White does not argue that the actual-innocence 
exception applies in this case.                                           
DiGuglielmo,

544 U.S. 408, 418

 (2005)). It is the petitioner’s burden to show that the 
limitations period should be equitably tolled. See Pace,

544 U.S. at 418

. 

                        B. Section 2244(d)                              
   Respondent seeks dismissal of Mr. White’s habeas petition due to untimeliness. In 
determining whether the habeas petition is untimely, this Court must first determine when 
the limitations period for Mr. White’s claims began to run.               
   Of the four potential dates provided by § 2244(d)(1) for the beginning of the 
limitations period, only two are relevant to this case. Mr. White does not allege that there 

was an “impediment to filing an application created by State action in violation of the 
Constitution or laws of the United States,”

28 U.S.C. § 2244

(d)(1)(B), and his claims do 
not depend upon a constitutional right that was only recently recognized by the Supreme 
Court, see

28 U.S.C. § 2244

(d)(1)(C). The limitations period for Mr. White’s claims 
therefore  began  either  when  the  judgment  in  his  case  became  final,  see

28 U.S.C. § 2244

(d)(1)(A), or when “the factual predicate of the claim or claims presented could have 
been discovered through the exercise of due diligence,”

28 U.S.C. § 2244

(d)(1)(D). 
   The date established by § 2244(d)(1)(A) can be calculated with precision—and, 
once calculated, it is apparent that any claim brought by Mr. White that is governed by 
§ 2244(d)(1)(A)  is  untimely.  The  Minnesota  Supreme  Court  declined  review  of  Mr. 

White’s direct appeal on October 20, 2020. Mr. White was then entitled to seek a petition 
for a writ of certiorari from the Supreme Court of the United States. He did not do so, and 
the judgment in his case became final when the deadline for seeking a writ of certiorari 
expired. See Jihad v. Hvass,

267 F.3d 803, 804-05

 (8th Cir. 2001). A litigant ordinarily has 
ninety days in which to seek review from the Supreme Court of the United States, but at 
the time that the Minnesota Supreme Court declined review of Mr. White’s conviction, the 

certiorari deadline had been extended to 150 days on account of the COVID-19 pandemic. 
See U.S. Sup. Ct. R. Filing Extensions Order (issued Mar. 19, 2020, rescinded July 19, 
2021). Accordingly, the limitations clock for any claim governed by § 2244(d)(1)(A) began 
running 150 days after October 20, 2020, or on March 19, 2021. Mr. White therefore would 
have had one year, or until March 21, 2022,4 in which to seek relief on any claims whose 
timeliness was governed by § 2244(d)(1)(A). He did not file his habeas petition until 

February 1,  2024.  To  be  sure,  for  part  of  that  time,  Mr.  White  had  been  seeking 
postconviction relief in the state courts, and that time would not count against the one-year 
limitations  period.  See

28 U.S.C. § 2244

(d)(2).  But  Mr.  White  did  not  commence 
postconviction proceedings in state court until August 10, 2022—that is, four months after 
the federal limitations period established by § 2244(d)(1)(A) had already expired. 

   So far as this Court can tell, Mr. White does not dispute that any claim governed by 
§ 2244(d)(1)(A) falls outside of the statutory limitations period. Instead, Mr. White insists 
that one of his claims—his Brady claim—is governed by § 2244(d)(1)(D), because the 
factual predicate of the Brady claim “did not become available to him until June 10, 2022, 
when he received the Certified Disposition from the Clerk of the Circuit Court of Cook 

County” showing that Laster had been on probation when the crime and trial occurred. See 


4 Exactly one year after March 19, 2021, is (of course) March 19, 2022, but that date was 
a Saturday, and Mr. White would have been entitled until the next business day to file his 
habeas petition. See Fed. R. Civ. P. 6(a)(1)(C).                          
Pet. Br. at 21 [Dkt. No. 15]. If the limitations period for the Brady claim began on June 10, 
2022, then—after accounting for time in which the limitations period was tolled by 

§ 2244(d)(2) due to ongoing state-court postconviction proceedings—Mr. White’s claim 
under Brady would be timely.                                              
   There are three problems with Mr. White’s argument, however. The first is that the 
argument does nothing to salvage any of his other claims for relief. Even if § 2244(d)(1)(D) 
governed  the  timeliness  of  his  Brady  claim,  §  2244(d)(1)(A)  would  govern  still  the 
timeliness of the remaining claims. And as explained above, any claims governed by 

§ 2244(d)(1)(A) are plainly untimely.                                     
   Second, Mr. White’s argument that he could not have known that Laster was on 
probation until he was handed a certified disposition from the clerk of court where Laster’s 
criminal proceedings had been conducted is not convincing. Laster’s criminal history was 
not esoteric information; his status as a parolee would have been available to Mr. White at 

any point during or after his criminal proceedings. Nor is this a case in which a factual 
predicate,  though  technically  available,  is  so  non-obvious  as  to  be  practically 
indiscoverable. Mr. White himself describes Laster as “the prosecution’s primary witness 
against him,” Pet. Br. at 23, and he was aware that Laster had a criminal history, see White 
II,

2023 WL 5695630

, at *6 (noting that “[t]he jury heard about Laster’s criminal

convictions . . . .”).5 Laster’s credibility would have been an obvious matter of contention.

28 U.S.C. § 2254

(e)(1). The excerpt 
quoted above is chock-full of factual findings—that the prosecution turned over documents 
related to Laster’s criminal history; that the conviction for which Laster was convicted was 
included on at least one of those documents; and that anyone could have known that Laster 

claim, but instead whether the factual predicate of the Brady claim could have been known 
to Mr. White with reasonable diligence at the time of his trial. It could have. 
was on parole based on the information contained in those documents given the operation 
of Illinois law—and Mr. White has not rebutted any of those findings by clear and 

convincing evidence. Armed with that information, Mr. White or his attorney could have, 
with reasonable diligence, investigated prior to trial into whether Laster was on parole. 
   The  timeliness  of  Mr.  White’s  Brady  claim  is  therefore  governed  by 
§ 2244(d)(1)(A),  not  § 2244(d)(1)(D).  Because  the  Brady  claim  is  governed  by 
§ 2244(d)(1)(A), Mr. White has sought habeas relief on the claim in federal court too late. 
That claim, and all of Mr. White’s other claims, fall habeas outside of the limitations period 

established by § 2244.                                                    
                       C. Equitable Tolling                             
   Mr. White could nevertheless avoid the effects of § 2244(d) by showing that he is 
entitled to equitable tolling—that is, “‘(1) that he has been pursuing his rights diligently, 
and (2) that some extraordinary circumstance stood in his way’ and prevented timely 

filing.” Holland,

560 U.S. at 649

 (quoting Pace,

544 U.S. at 418

). Mr. White makes such 
an effort, arguing that the COVID-19 pandemic caused him to be unable to file a petition 
for postconviction relief in state court until a year after the judgment in his case had become 
final, by which point the federal limitations window for habeas relief had already closed. 
   Much of Mr. White’s briefing on the subject of equitable tolling establishes the 

proposition that the pandemic has been cited by courts as a basis for allowing petitioners 
to file a habeas petition that would otherwise be untimely. But the fact that COVID-19 
prevented some prisoners from seeking habeas relief on time despite their best efforts does 
not mean that COVID-19 is an all-purpose, get-out-of-untimeliness-free card. See United 
States v. Sayonkon, No. 16-CV-0265(2) (ADM/HB),

2022 WL 607474

, at *3 (D. Minn. 
Mar. 1, 2022) (collecting cases). A habeas petitioner pointing to the pandemic as the reason 

that he did not seek habeas relief within the limitations window still must establish how, 
specifically, the pandemic prevented him from prosecuting his claims. See Holland,

560 U.S. at 650

2020 WL 7332657

, at *4 
(W.D. Pa. Dec. 14, 2020) (“The bottom line is that the COVID-19 pandemic does not 
automatically warrant equitable tolling for any petitioner who seeks it on that basis.”). 
   Mr. White’s claim to entitlement to equitable tolling on account of the pandemic is 
especially flimsy. For one thing, Mr. White’s filing deadline did not fall within the period 

when—as he puts it—“nothing was clear, everything seemed and felt dangerous, and 
nearly every aspect of life was impacted in some way or another.” Pet. Br. at 32. Under 
§ 2244(d)(1)(A), Mr. White was not required to file his habeas petition until March 21, 
2022—that is, more than two years after the onset of the pandemic. By July 2021, with 
eight months yet remaining on Mr. White’s federal habeas limitations clock, things had 
sufficiently  returned  to  normal  that  the  Supreme  Court  rescinded  its  temporary  rule 

extending the deadline for filing a petition for a writ of certiorari. By this Court’s count, 
171  habeas  corpus  petitions  were  filed  in  this  District  during  Mr.  White’s  one-year 
limitations period (March 19, 2021, though March 21, 2022), plus another 31 motions for 
relief under

28 U.S.C. § 2255

. Many, many prisoners were capable of timely seeking 
postconviction  relief  during  the  period  that  Mr.  White  alleges  COVID-19  posed  an 

insuperable barrier to him doing so.                                      
   To be sure, Mr. White would have been required to present his claims to the state 
courts before coming to federal court. But there is no reason to believe that the state courts 
were still functioning abnormally by the time that Mr. White’s criminal judgment had 
become final or for the year thereafter; certainly, Mr. White provides no such evidence. 

Moreover, even if there had been continuing impediments to seeking relief in the state 
courts caused by COVID-19, Mr. White could have presented his claims to this Court and 
sought a stay of the federal proceedings so that he could first exhaust his claims in state 
court. See Rhines v. Weber,

544 U.S. 269, 271-72

 (2005). And for at least some of this 
period (though the record is unclear regarding exactly how much), Mr. White—unlike most 
of  the  prisoners  who,  notwithstanding  COVID-19,  were  capable  of  timely  seeking 
postconviction relief—was represented by counsel.6                        

   Mr. White has not shown that he acted with the necessary diligence, and he has not 
shown that any extraordinary impediment stood in his way prior to seeking habeas relief. 
He has no colorable entitlement to equitable tolling.                     
                         D. Conclusion                                  
   Mr. White’s habeas petition needed to be filed by no later than March 21, 2022. He 

missed that deadline, and he has not established a basis for equitably tolling the deadline. 
Accordingly, Respondent’s motion to dismiss should be granted and the habeas petition 
should be denied. Finally, should this matter be dismissed on timeliness grounds, this Court 
does not believe that “jurists of reason would find it debatable whether the district court 
was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484

 (2000). Mr. 

White  therefore  should  not  be  issued  a  certificate  of  appealability.  See

28 U.S.C. § 2253

(c)(1).                                                             


6 Mr. White’s state-court postconviction proceedings concluded on December 19, 2023, 
when the Minnesota Supreme Court declined review of his case. His federal habeas petition 
was not filed until February 1, 2024. Mr. White was represented by the same counsel in 
both proceedings. “Where a § 2255 proceeding is equitably tolled, only enough time will 
remain on the game clock for the litigant to take a single shot (file the action), regardless 
of how long external obstacles might previously have barred the litigant from acting.” 
United States v. Buckhanan, No. 21-CR-74 (MJD/LIB),

2023 WL 9502153

4. No certificate of appealability be issued.
Dated: August 30, 2024 _s/ John F. Docherty_______________
JOHN F. DOCHERTY
United States Magistrate Judge

NOTICE

Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.

Reference

Status: Unknown