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PARISI v. COOPER

May 8, 1997

PAUL PARISI, Petitioner,
v.
KEITH COOPER, WARDEN, et al., Respondents.



The opinion of the court was delivered by: SHADUR

 Obviously mindful of the problem posed by that hybrid situation, Parisi has accompanied his current Petition with what he labels an "Application for Stay of Habeas Corpus until Final Disposition of Post Conviction"--a request that his present Petition be placed in abeyance until he has exhausted his third constitutional claim, or alternatively that this Court should allow him to add that unexhausted issue to the current Petition. From a statutory perspective, Parisi's situation brings into play the meaning and effect of the tolling provision contained in Section 2244(d)(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. *fn1"

 It is of course clear that Parisi's still-pending post-conviction proceeding relates to the "judgment" that is also under attack in his Petition: the judgment that found him guilty and sentenced him to his 90-year custodial term. But if the statutory tolling provision's reference to "the pertinent . . . claim" were instead read to toll the one-year limitation period only as to his claim of ineffective assistance of counsel, the consequence would be either that Parisi would be forced to bring two habeas petitions (a result totally inconsistent with the thrust of the 1996 legislation) or that the current Petition would have to be put on the back burner as Parisi has asked. In the latter respect, the recent per curiam opinion from our Court of Appeals in Post v. Gilmore, 111 F.3d 556, 1997 U.S. App. LEXIS 7611, 1997 WL 186473, at *2 (7th Cir.) says:

 
When unusual circumstances make it imprudent to address the § 2254 petition immediately, the collateral attack should be stayed rather than dismissed.

 Post, however, dealt with a situation in which the Court of Appeals was looking at the relationship between a Section 2254 action and a damages lawsuit under 42 U.S.C. § 1983 that were pending concurrently. And as the Court went on to say (id.):

 
Under the 1996 amendment to 28 U.S.C. § 2244(d), a prisoner has only one year from the date the state appellate process ends to begin a collateral attack; time waiting for the conclusion of a § 1983 action is not among the periods that the statute excludes from the calculation. Dismissal of Post's action creates a substantial risk that refiling after the completion of the § 1983 case will be untimely.

 But that same risk does not exist here, unless the earlier-quoted Section 2244(d)(2) were to be read in a constricted fashion by focusing on the separation of different constitutional claims advanced by a prisoner. That of course is a possible construction of the statute, but that risk can be eliminated entirely by this Court's adoption of a procedure that employs the concept that dismissal with leave to reinstate is not a final order until the time specified for reinstatement has expired ( Otis v. City of Chicago, 29 F.3d 1159 (7th Cir. 1994) (en banc)). And the concerns that our Court of Appeals has expressed from time to time that stem from a district court's leaving a case in limbo by entry of an open-ended reinstatement order are eliminated by this Court's regular practice of expressly providing that the failure to file a timely motion for leave to reinstate will cause the dismissal order immediately to become final.

 Accordingly this Court, rather than entering a stay order, dismisses the current Petition without prejudice, with leave granted to Parisi to file a motion for its reinstatement within 63 days after the issuance of a decision by the Illinois Appellate Court for the First District that rules on Parisi's now-pending appeal from the denial of his post-conviction petition. *fn2" If no such timely motion for reinstatement is filed by the end of that period, the dismissal order that has been entered here will become final on the next court day.

 Milton I. Shadur

 Senior United States District Judge

 Date: May 8, ...


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