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May 28, 1999


The opinion of the court was delivered by: Manning, District Judge.


Petitioner Jameel Drain seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also seeks leave to file a reply in support of his petition. For the following reasons, Drain's motion for leave to file a reply is granted and his request for relief under § 2254 is denied.

I. Background

A. Jurisdiction

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 100 Stat. 1214 (the "AEDPA"), which amended the statutory provisions governing federal writs of habeas corpus, became effective on April 24, 1996. Because Drain filed his petition after April 24, 1996, the AEDPA governs his petition. See Long v. Krenke, 138 F.3d 1160, 1163 (7th Cir. 1998). Pursuant to the AEDPA, jurisdiction over Drain's § 2254 petition is proper only if it is not a "second or successive petition," 28 U.S.C. § 2244(b), and is timely under the AEDPA's one year filing rule, 28 U.S.C. § 2254(d)(1). Since this is Drain's first § 2254 petition, the AEDPA's proscriptions against second or successive petitions do not affect him.

With respect to the timeliness of Drain's petition, the court originally held that Drain had failed to submit a good-faith motion for leave to proceed in forma pauperis ("IFP") with his petition for a writ of habeas corpus under 28 U.S.C. § 2254 and had ultimately paid the filing fee after the statute of limitations in 28 U.S.C. § 2244(d)(1) had expired. Drain v. Washington, No. 97 C 748 (N.D.Ill. May 11, 1998) (unpublished order). Drain's petition thus posed this question: Is a § 2254 petition "filed" for purposes of the AEDPA when the petition is received along with a bad faith IFP motion?

The court held that the answer to this question was "no," reasoning that an application to proceed IFP must be presented in good faith in order to satisfy Rule 3 of the Rules Governing Section 2254 Cases in the United States District Courts, and that a petition accompanied by a bad faith IFP motion was not properly "filed."*fn1 U.S. ex rel. Barnes v. Gilmore, 987 F. Supp. 677, 682 (N.D.Ill. 1997), citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), and Rule 3 of the Rules Governing Section 2254 Cases in the United States District Courts; Barke v. Berge, 977 F. Supp. 938, 939 (E.D.Wis. 1997) (for the purposes of the one-year limitations period in the AEDPA, a habeas petition is deemed filed upon receipt of the petition and the fee or an order granting leave to proceed in forma pauperis). Drain appealed and the court granted a certificate of appealability as the Seventh Circuit had not considered the fee issue raised by Drain's petition and courts in the Northern District of Illinois were split on the fee issue.

The court later revisited this issue sua sponte as it considered a number of subsequent cases addressing this question. See, e.g., U.S. ex rel. Washington v. Gramley, No. 97 C 3270, 1998 WL 171827 (N.D.Ill. Apr. 10, 1998). It then requested a remand under Circuit Rule 57, which the Seventh Circuit granted. The court's Rule 57 certification ultimately correctly anticipated the trend with respect to the relationship between resolution of a petitioner's fee status and the timeliness of his habeas petition, as the Seventh Circuit recently held that, for statute of limitations purposes, a habeas petition is timely for statute of limitations purposes even if it is not accompanied by the $5 filing fee or an IFP motion. Jones v. Bertrand, 171 F.3d 499, 503 (7th Cir. 1999).

In Jones, the pro se petitioner did not submit the $5 fee or an IFP motion, and there was no evidence that he had done so in bad faith. Id. at 503-04. The Seventh Circuit found that he had substantially complied with the filing requirements and that his petition thus was "filed" under the prisoner mailbox rule when he handed it to the prison officials. Id. This case is distinguishable because the court has found that Drain acted in bad faith when he sought leave to proceed IFP. Thus, the court must determine whether Drain is entitled to take advantage of the filing rule in Jones despite his bad faith IFP motion.

It is true that the Seventh Circuit repeatedly qualified its holding in Jones regarding the submission of IFP motions by noting that the petitioner had not acted in bad faith. Id. at 502-04. Nevertheless, the Seventh Circuit clearly chose the Houston mailbox rule over a strict reading of Rule 3, and held that Rule 3 is procedural and not substantive. Id. at 502-03. In addition, although the Seventh Circuit did not expressly address the effect of submitting a bad faith IFP motion, it stated that failing to determine whether a petitioner is liable for the filing fee when he submits his petition does not have any "negative impact" and held that "a district court should regard as `filed' a complaint which arrives in the custody of the clerk within the statutory period but fails to comply with formal requirements in local rules." Id., citing Gilardi v. Schroeder, 833 F.2d 1226, 1233 (7th Cir. 1987).

Here, Drain submitted his § 2254 petition within the statutory one-year period (albeit with a bad faith IFP motion). After a close study of Jones, the court finds that Drain's petition is timely despite his bad faith IFP motion as there is no principled way to reconcile the Seventh Circuit's pronouncements regarding Houston and Rule 3 with a rule that handing a § 2254 petition and a bad faith IFP motion to a prison official means that the petition is not deemed "filed." Moreover, under the Houston mailbox rule, as discussed in Jones, a petition is "filed" when the prisoner gives his § 2254 petition to a prison official, with or without an IFP motion. At the time this occurs, if a prisoner submits an IFP motion, there is no way to definitively know whether a court will later find that the IFP motion was filed in bad faith.

This leaves two options. First, a bad faith IFP motion could retroactively "unfile" a habeas petition upon a finding that the motion was filed in bad faith. In this scenario, the statute of limitations would continue to run until the petitioner paid the filing fee. Alternatively, an IFP motion — regardless of whether it was filed in good faith or not — could toll the statute of limitations. Upon a finding that the motion was filed in bad faith, however, the statute would then begin to run until the petitioner paid the fee. The court declines to adopt option one, as it believes that pro se litigants should not be forced to, in effect, play a filing fee version of Russian Roulette where they only know if their IFP motion tolls the limitations period after it is too late to do anything about it.

Option two, on the other hand, is consistent with the reasoning in Jones and makes the computation of the limitations period predictable at all stages of the litigation. The court thus adopts option two. This means that the time when Drain's IFP motion was pending tolled the statute of limitations. In turn, this means that Drain's petition is timely and that the court has jurisdiction to consider it.

B. Facts

Under 28 U.S.C. § 2254(e)(1), in the absence of a showing by the petitioner of clear and convincing evidence to the contrary, a determination of a factual issue by a state court is presumed to be correct for the purposes of habeas review. See, e.g., Abrams v. Barnett, 121 F.3d 1036, 1038 (7th Cir. 1997). Drain does not challenge the facts as set forth in the opinion of the Illinois Appellate Court affirming his conviction and sentence. Accordingly, the following facts are adopted from the Illinois Appellate Court's decision in People v. Drain, 276 Ill. App.3d 1120, 231 Ill.Dec. 734, 697 N.E.2d 15 (1995) (unpublished order). Due to the brevity of the Illinois Appellate Court's recitation of facts, however, the court has also included facts from Drain's state court appellate brief in order to provide additional context.

Quovadis Gates was fatally wounded by gunfire on October 7, 1990. On that evening, Gates was sitting in a parked car on the corner of 57th and Normal with his girlfriend, Lisa Dixon. Petitioner Jameel Drain, Robert Berry, and Charles Jones were also near 57th and Normal at this time as they had planned to rob Gates. Berry was to sell a gold chain to Gates and, as Berry walked away, Drain (who had a handgun) and Jones were to approach Gates' car and rob him. It is true, however, that "[t]he best laid schemes o' mice and men; Gang aft a-gley; And leave us naught but grief and pain . . ." Robert Burns, To a Mouse (1785). In other words, things did not go as planned.

Berry approached Gates and asked him if he wanted to buy the chain, but Gates refused. As Berry walked away, Drain and Jones approached Gates' car. Moments later, Berry heard a gunshot and Drain and Jones came running around the corner. At trial, Berry testified that Drain had a gun in his hand and that Drain told him that he shot Gates because Gates was reaching under the dashboard.

In addition, Carla Smith testified that she lived with Drain and her boyfriend, Derrick Emmons. According to Smith, Drain returned home in the early morning hours of October 7, 1990, and told Emmons that he had shot Gates. On January 26, 1991, Emmons was killed. At this time, Smith gave the police a written statement concerning Drain's confession. Smith testified that, after she made this statement, Drain asked her not to testify against him and offered her money to "play dumb."

Lisa Dixon, Gates' girlfriend, testified that, on the night of Gates' murder, a man approached Gates' car and asked him if he wanted to buy a gold chain. Dixon stated that another man subsequently approached the driver's side of the car and held a gun to Gates' head. As this occurred, another man opened the passenger side of the car and Dixon placed her hands over her eyes. She then heard a gunshot and Gates fell into her lap. Dixon testified that she never positively identified who shot Gates and that she thought that the police had directed her to look at a specific individual while she was viewing a lineup which included Drain.

Lamont Norwood testified that he was on the corner of 57th and Stewart on the night that Gates was murdered. Norwood saw a man give a gun to either Drain or Jones. Drain and Jones then walked away. Minutes thereafter, Norwood heard a gunshot. When Norwood arrived at 57th and Normal, he saw Gates in an ambulance. In 1993, Norwood spoke to Steve Kirby, a private investigator. Norwood told Kirby that he could not remember anything about the shooting. At trial, Norwood testified that he said this to protect his family.

Detectives Michael Duffin and Tom Ptak investigated the shooting. Detective Duffin testified that he spoke with Cara Smith about Emmons and Gates' deaths and that this caused him to search for Charles Jones, Robert Berry, and Jameel Drain. Police arrested Jones and Berry relatively quickly, but searched for Drain between 30 and 40 times before his arrest on June 19, 1991. On cross-examination, defense counsel attempted to ask Detective Duffin if his report stated that Berry told him that he was with Drain on the night of the shooting. Defense counsel said he wanted to introduce the contents of the report to show that Detective Duffin had generated a false police report. The trial court judge, however, sustained the State's objection and held that defense counsel could only impeach Detective Duffin by asking him if Berry had told him that he was with ...

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