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UNITED STATES EX REL. SMITH v. PAGE

February 6, 1998

UNITED STATES OF AMERICA ex rel. MILTON SMITH, Petitioner,
v.
THOMAS PAGE, Respondent.



The opinion of the court was delivered by: SHADUR

 This 28 U.S.C. § 2254 ("Section 2254") action by Milton Smith ("Smith"), in which he has filed a self-prepared Petition seeking habeas corpus relief from his 1983 murder conviction in the Circuit Court of Cook County, is one of four cases that this Court inherited from the calendar of its colleague Honorable James Alesia in connection with Judge Alesia's just-effective assumption of senior status. Even though the age of Smith's conviction, when coupled with the timing of his Section 2254 submission, at least suggested the possibility that his action should be dismissed as untimely, it was not until this Court received the newly-filed Motion To Dismiss submitted by respondent Warden Thomas Page *fn1" that the untimeliness flaw has been confirmed beyond dispute.

 Although Warden Page's motion sets out the history of Smith's cases in somewhat greater detail, the only relevant facts for current purposes are these:

 
1. Smith's direct appeal from his conviction was dispatched by the Illinois Appellate Court for the First Judicial District in its Case No. 84-0436 on April 17, 1985 (Ex. C).
 
2. Smith's belated petition for leave to appeal to the Illinois Supreme Court (Ex. D) was denied by that Court in its Case No. 63270 on June 3, 1986 (Ex. E).
 
3. Over two years later Smith sought Section 2254 relief in this District Court (in Case No. 88 C 7463), an effort that Judge Alesia rejected in a March 22, 1991 final order (Ex. F) on grounds of Smith's failure to exhaust state remedies (as required under what was then Section 2254(b) and what is now Section 2254(b)(1)(A)). In conjunction with Smith's unsuccessful appeal from that disposition, our Court of Appeals modified Judge Alesia's order to a dismissal without (rather than with) prejudice (Ex. H reproduces the Court of Appeals' December 12, 1991 order in its Case No. 91-1663).
 
4. Smith's current Petition, together with his application for leave to proceed in forma pauperis, were not received in this District Court's Clerk's Office until May 8, 1997. That self-prepared Petition included a jurat that Smith filled out as having been executed on April 22, 1997--but more importantly, the printout of Smith's trust fund account (Ex. G) from Menard Correctional Center (where he is in custody) shows that no funds were charged against the account for the making of any legal copies until April 24 (an $ 18.10 charge) and that no charges were then made for legal postage until May 1 (a $ 9.32 charge), May 5 (a $ 2.16 charge) and May 7 (a $ 3.00 charge).

 That recital plainly shows that Smith's Petition was dead in the water from the very beginning, a determination that is not affected by the fact that Judge Alesia acted to grant in forma pauperis status something over five months after receipt of the Petition (on October 31, 1997). *fn2" Here is 28 U.S.C. § 2244(d)(1), as added to Title 28 by the Antiterrorism and Effective Death Penalty Act of 1996 ("Act") on April 24, 1996: *fn3"

 
(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.

 Lindh v. Murphy, 96 F.3d 856, 865-66 (7th Cir. 1996)(en banc), rev'd on other grounds, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997), then eliminated the potential for any retrospective statutory barring of habeas relief via that section by granting a one-year period beyond the Act's effective date--to April 23, 1997--within which to file habeas petitions, even though they ...


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