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.
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 May 11, 1998) (unpublished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).
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.
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
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
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
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 ...