The opinion of the court was delivered by: McCUSKEY, District Judge.
On May 11, 1998, Petitioner, Willie McClain, filed a petition
under 28 U.S.C. § 2254 for a writ of habeas corpus (# 1) in the
Southern District of Illinois. On June 3, 1998, after the case
was transferred to this
court, Petitioner's petition for leave to proceed without
prepayment of fees and costs (# 5) was granted. On August 31,
1998, Respondent, Thomas F. Page, filed a Motion to Dismiss (#
9) the petition. Respondent argues that the petition is not
timely. This court agrees. Accordingly, Petitioner's habeas
corpus petition is dismissed.
Following a jury trial, Petitioner was found guilty of
aggravated battery and two counts of first degree murder. On
April 26, 1993, he was sentenced to natural life imprisonment
for each first degree murder conviction and a concurrent term
of seven years' imprisonment for aggravated battery. Petitioner
appealed, and the Fourth District Appellate Court affirmed the
convictions on January 12, 1995. People v. McClain, 269 Ill. App.3d 500,
206 Ill.Dec. 580, 645 N.E.2d 585 (1995). Petitioner
filed a petition for leave to appeal which was denied by the
Illinois Supreme Court on April 5, 1995. People v. McClain,
161 Ill.2d 535, 208 Ill.Dec. 366, 649 N.E.2d 422 (1995).
On March 18, 1996, Petitioner filed a pro se petition
pursuant to Illinois' Post-Conviction Hearing Act (725
Ill.Comp.Stat. 5/122-1 et seq. (West 1996)) in the circuit
court of Champaign County. However, the Post-Conviction Hearing
Act provides that no proceedings under the Act may be commenced
more than six months after the denial of a petition for leave
to appeal or more than three years from the date of conviction,
whichever is sooner. 725 Ill.Comp.Stat. 5/122-1 (West 1996).
Because Petitioner's petition for leave to appeal was denied on
April 5, 1995, his post-conviction petition had to be filed no
later than October 5, 1995. As a result, Petitioner also filed
in the circuit court a motion to file a late petition for
post-conviction relief. In his motion, Petitioner alleged that
the delay in filing the post-conviction petition was due to a
"lockdown" at the Pontiac Correctional Center. The circuit
court denied Petitioner's motion to file his late
post-conviction petition, and he appealed.
On appeal, the Fourth District Appellate Court, with one
Justice dissenting, affirmed the circuit court's ruling.
People v. McClain, 292 Ill. App.3d 185, 226 Ill.Dec. 66,
684 N.E.2d 1062 (1997). The court found that Petitioner failed to
make a "substantial showing" that his delay in timely filing a
post-conviction petition was not due to his culpable
negligence. McClain, 226 Ill.Dec. 66, 684 N.E.2d at 1064. The
court noted that a post-conviction petition need only set forth
the "gist of a meritorious claim." McClain, 226 Ill.Dec. 66,
684 N.E.2d at 1065. The court stated:
The petitioner-inmate need only plead sufficient
facts from which the trial court could find a
valid claim of deprivation of a constitutional
right. Accordingly, we conclude that a prison
`lockdown,' restricting an inmate's access to the
prison law library, does not constitute a
legitimate excuse for the inmate's not filing a
postconviction petition in a timely fashion.
McClain, 226 Ill.Dec. 66, 684 N.E.2d at 1065.
Petitioner filed a petition for leave to appeal. The Illinois
Supreme Court denied the petition on February 4, 1998.
People v. McClain, 176 Ill.2d 585, 229 Ill.Dec. 58,
690 N.E.2d 1385 (1998). As noted, Petitioner filed his petition for a writ
of habeas corpus on May 11, 1998.
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub.L. 104-32, 100 Stat. 1214, applies to this case
because Petitioner filed his § 2254 petition after April 24,
1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068,
138 L.Ed.2d 481 (1997). Under the AEDPA, a one-year period of
limitations applies to a habeas corpus petition by a person in
state custody. 28 U.S.C. § 2244(d)(1). For § 2254 petitions
filed by persons convicted prior to the effective date of the
AEDPA, the period of limitations does not begin to run until
April 24, 1996, the AEDPA's enactment date. Gendron v. United
States, 154 F.3d 672, 675 (7th Cir. 1998). In this case,
Petitioner's May 11, 1998, petition was filed more than two
years after the effective date of the AEDPA.
However, under the AEDPA, the one-year limitations period is
tolled for "the time
during which a properly filed application" for state
post-conviction relief is pending. 28 U.S.C. § 2244(d)(2);
Gendron, 154 F.3d at 675; United States ex rel. Morgan v.
Gilmore, 26 F. Supp.2d 1035, 1038 (N.D.Ill. 1998). A "properly
filed application" is one submitted according to the state's
procedural rules, including the rules governing the time and
place of filing. Morgan, 26 F. Supp.2d at 1038 (quoting Lovasz
v. Vaughn, 134 F.3d 146, 147 (3d Cir. 1998)). Accordingly, an
untimely petition is not "properly filed" and cannot toll the
limitations period under § 2244(d)(2). See Young v. Roth, 1998
WL 851502, at *2 (N.D.Ill. 1998); United States ex rel. Walker
v. Carter, 1998 WL 685373, *2 (N.D.Ill. 1998); Morgan, 26
F. Supp.2d at 1038.
In this case, Petitioner's post-conviction petition was found
to be untimely and was dismissed by the circuit court. This
judgment was affirmed on appeal. It is clear from these facts
that Petitioner did not have a "properly filed application" for
state post-conviction relief. Therefore, the limitations period
was not tolled pursuant to 28 U.S.C. § 2244(d)(2), and, to be
timely, Petitioner's petition for habeas corpus relief had to
be filed by April 23, 1997. See Young, 1998 WL 851502, at *2.
Petitioner's petition was not filed until May 11, 1998, and
must be dismissed as untimely. This court further notes that,
even if Petitioner's habeas corpus petition was not dismissed
on this basis, his claim for habeas relief would have to be
denied. See United States ex rel. Hadley v. Haws, 1998 WL
698939, at *4-7 (N.D.Ill. 1998) (court found limitations period
was tolled because the petitioner had filed a post-conviction
petition, but then denied the petitioner habeas relief based
upon procedural default because his untimely post-conviction
petition was dismissed by the state court, and not decided on
the merits). In any ...