United States District Court, Central District of Illinois, Danville/Urbana Division
September 2, 1999
DIEGO POSADA, PETITIONER,
JAMES W. SCHOMIG, WARDEN, RESPONDENT.
The opinion of the court was delivered by: McCUSKEY, District Judge.
On January 22, 1999, Petitioner, Diego Posada, was allowed to
file his petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 without prepayment of fees and costs (# 4). On
February 25, 1999, Respondent, James W. Schomig, filed a Motion
to Dismiss (# 7). Petitioner filed his Answer to the Motion to
Dismiss (# 11) on June 25, 1999. This court agrees with
Respondent that the petition for a writ of habeas corpus was not
timely filed. Accordingly, Respondent's Motion to Dismiss (# 7)
On February 19, 1993, Petitioner pleaded guilty to the offense
of controlled substance trafficking. Petitioner had been charged
with knowingly and without lawful authority bringing into the
State of Illinois more than 900 grams of cocaine with the intent
to deliver the controlled substance. On March 30, 1993,
Petitioner was sentenced to a term of 50 years in the Illinois
Department of Corrections. He was also ordered to pay a street
value fine of $26,637,310. Petitioner appealed, and the Appellate
Court, Third District, dismissed Petitioner's appeal from his
conviction and affirmed the sentence imposed. People v. Posada,
No. 3-93-0389 (June 9, 1994) (unpublished order).*fn1
Petitioner received a letter, dated June 15, 1994, from his
appellate counsel which advised him that, following the denial of
his appeal, his options were to file a petition for leave to
appeal to the Illinois Supreme Court or to file a post-conviction
petition. In the letter, appellate counsel indicated that
Petitioner's "best bet" would be to file a post-conviction
petition. The letter stated that, if Petitioner wanted to file a
post-conviction petition, he "must do so within 3 years of [his]
conviction." Petitioner did not file a petition for leave to
appeal to the Illinois Supreme Court. On March 29, 1996,
Petitioner filed a pro se petition for post-conviction relief in
the circuit court of Bureau County. The circuit court dismissed
the petition as frivolous and patently without merit on June 4,
1996. Petitioner filed a notice of appeal on June 8, 1996.
On October 16, 1997, the State filed a Motion to Dismiss the
appeal. The State argued that Petitioner's petition for
post-conviction relief was not timely. The State argued that
Petitioner's March 29, 1996, petition was not filed within the
statutory limitations period and did not allege facts showing
that the delay was not due to his culpable negligence. The State
therefore contended that the Appellate Court lacked jurisdiction
over the matter and the appeal should be dismissed. The Appellate
Court agreed and, on November 7, 1997, dismissed Petitioner's
appeal from the dismissal of his petition for post-conviction
On August 19, 1998, Petitioner filed a Motion for Leave to File
a Late Petition for Leave to Appeal with the Illinois Supreme
Court. The Supreme Court denied the Motion on December 9, 1998.
On December 16, 1998, Petitioner filed a Motion for
Reconsideration with the Supreme Court. According to the parties,
the Supreme Court has not yet ruled on the Motion. As noted,
Petitioner filed his petition for a writ of habeas corpus on
January 22, 1999(# 4).
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, 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); Tinker v. Hanks,
172 F.3d 990 (7th Cir. 1999). 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), cert. denied by Ahitow v. Glass, ___
U.S. ___, 119 S.Ct. 1758, 143 L.Ed.2d 790 (1999). In this case,
Petitioner's § 2254 petition was filed in January 1999, almost
three 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; McClain v. Page,
36 F. Supp.2d 819, 820-21 (C.D.Ill. 1999). In his Motion to Dismiss,
Respondent contends that Petitioner's petition for
post-conviction relief was not timely filed and, therefore, did
not toll the limitations period for filing his petition for a
habeas corpus. This court agrees that Petitioner's petition for
post-conviction relief was not timely.
The Post-Conviction Hearing Act (Act) was amended, effective
July 1, 1995, and now provides that no proceedings under the Act
"shall be commenced more than 6 months after the denial of a
petition for leave to appeal or the date for filing such a
petition if none is filed . . . or 3 years from the date of
conviction, whichever is sooner, unless the petitioner alleges
facts showing that the delay was not due to his or her culpable
negligence." 725 Ill.Comp.Stat. 5/122-1(c) (West 1996) (emphasis
added). Petitioner did not file a petition for leave to appeal
from the Appellate Court's June 9, 1994, decision. Accordingly,
under the Act, as amended, Petitioner had to file his petition
for post-conviction relief six months from the date a petition
for leave to appeal was due or three years from the date of his
conviction, whichever was sooner. 725 Ill.Comp.Stat. 5/122-1(c)
(West 1996); see also People v. Woods, 306 Ill. App.3d 1144,
240 Ill.Dec. 161, 715 N.E.2d 1218, 1220 (1999). Petitioner's
petition for leave to appeal was due within 21 days of June 9,
1994, the date his conviction was affirmed by the appellate
court. See People v. Lee, 292 Ill. App.3d 941, 227 Ill.Dec. 980,
688 N.E.2d 673, 674 (1997) (citing Ill.Sup.Ct.R. 315(b)).
Accordingly, he had six months from June 30, 1994, to file his
petition for post-conviction relief. Lee, 227 Ill.Dec. 980, 688
N.E.2d at 674. As a practical matter, Petitioner actually had
until June 30, 1995, that day before the amendment to the Act
became effective, to file his petition. Because Petitioner did
not file his petition for post-conviction relief until March 29,
1996, the petition was not timely.
It therefore appears that the Appellate Court properly
dismissed Petitioner's appeal from the dismissal of his petition
for post-conviction relief. A defendant's failure to file a
petition for post-conviction relief within the limitation period
established in the Act is a jurisdictional bar to his action.
People v. Caraballo, 304 Ill. App.3d 288, 237 Ill.Dec. 930,
710 N.E.2d 560, 562 (1999) (citing People v. Heirens,
271 Ill. App.3d 392, 207 Ill.Dec. 804, 648 N.E.2d 260, 267 (1995)).
Accordingly, the Appellate Court lacks jurisdiction over an
appeal from the dismissal of an untimely petition even where the
circuit court dismissed the post-conviction petition as frivolous
and patently without merit rather than as untimely. See
Caraballo, 237 Ill.Dec. 930, 710 N.E.2d at 562-63.
In his Answer to the Motion to Dismiss, Petitioner argues that
any delay in filing his petition for post-conviction relief was
based upon the advice of his appellate counsel and was not due to
his "culpable negligence." As support for this contention,
Petitioner has attached a copy of his appellate counsel's June
15, 1994, letter. Petitioner has also attached his own affidavit
and the affidavit of Victor Manual Lopez, a law clerk at Danville
Correctional Center, where Petitioner is now in custody. To a
large extent, the affidavits focus on the reasons why Petitioner
did not file his Motion for Leave to File a Late Petition for
Leave to Appeal with the Illinois Supreme Court until August 19,
1998. This court concludes that these statements in the
affidavits are not relevant to the threshold and dispositive
issue now before this court: whether Petitioner filed a timely
petition for post-conviction relief which tolled the one-year
limitations period for filing a petition for a writ of habeas
corpus. A portion of Petitioner's affidavit is relevant to this
inquiry and stated that, after his direct appeal was denied:
I started to go to the Law Library at Stateville
Correctional Center, but due to the continuous
lock-down, I never was informed about the law change
of the Statute of Limitations to file a
The Illinois Appellate Court has consistently concluded that
the same type of excuses for late filing offered by Petitioner
are not sufficient to establish that the delay was not due to
culpable negligence. In
People v. McClain, 292 Ill. App.3d 185, 226 Ill.Dec. 66,
684 N.E.2d 1062, 1064 (1997), the Court found that the petitioner
failed to make the required "substantial showing" that his delay
was not due to his culpable negligence. 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 `lock-down,'
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.
In People v. Perry, 293 Ill. App.3d 113, 227 Ill.Dec. 613,
687 N.E.2d 1095, 1097 (1997), the Court noted that "[f]reedom from
culpable negligence is very difficult to establish." The Court
then found that Perry's untimely filing was not excused even
though he had been given incorrect information regarding the
statute of limitations in the prisoner handbook and the prison
was on "lock-down." Perry, 227 Ill.Dec. 613, 687 N.E.2d at
1097-98. In Lee, the Court concluded that Lee's claims that he
was incorrectly advised by appellate counsel of the statute of
limitations for filing a post-conviction petition, and that he
lacked access to his trial transcripts and a law library were not
sufficient to carry "his burden of proving lack of culpable
negligence." Lee, 227 Ill.Dec. 980, 688 N.E.2d at 674-75. In
People v. Stenson, 296 Ill. App.3d 93, 230 Ill.Dec. 573,
694 N.E.2d 204, 206 (1998), the Court found that Stenson's claim that
he received incorrect advice from inmate law clerks was
"insufficient to show a lack of culpable negligence."
In People v. Mitchell, 296 Ill. App.3d 930, 231 Ill.Dec. 373,
696 N.E.2d 365 (1998), app. denied, 179 Ill.2d 605, 235
Ill.Dec. 572, 705 N.E.2d 445 (1998), the Court stated:
Unlike the McClain court, we are not prepared to
say that denial of access to the prison law library
as a result of lockdowns could never excuse a late
filing. As Justice Green pointed out in his dissent
in McClain, many prisoners are unable to draft even
simple documents without the aid of more
sophisticated prisoners, and the prison library
offers a place where the prisoner and his `jail-house
lawyer' can meet and work in a way not available
during a lockdown. McClain, 292 Ill. App.3d 185, 226
Ill.Dec. 66, 684 N.E.2d 1062 (Green, J., dissenting).
Therefore, where the record shows that lockdowns have
deprived the defendant of a meaningful opportunity to
prepare his petition in a timely fashion, we believe
some delay is excusable. Mitchell, 231 Ill.Dec.
373, 696 N.E.2d at 367.
However, the court in Mitchell went on to find that the
defendant in that case did not make a sufficient showing that the
delay in filing was caused by the lockdown because the
institution was not on lockdown the entire time the petitioner
had available to file a timely petition. Mitchell, 231 Ill.
Dec. 373, 696 N.E.2d at 367. The court also noted that a
petitioner's mistaken belief about the law, including a claim
that he was incorrectly advised of the filing deadline by
appellate counsel, was not sufficient to excuse compliance with
the time limitations. Mitchell, 231 Ill.Dec. 373
, 696 N.E.2d at
367-68. Accordingly, the court in Mitchell affirmed the circuit
court's dismissal of the post-conviction petition. Mitchell,
231 Ill.Dec. 373
, 696 N.E.2d at 368.
Most recently, in People v. Van Hee, 305 Ill. App.3d 333, 238
Ill.Dec. 641, 712 N.E.2d 363, 367 (1999), the Court stated that
it agreed with the approach espoused by the court in Mitchell
and the reasoning in Justice Green's dissent in McClain. In
Van Hee, the defendant stated in his affidavit that a lockdown
precluded him from obtaining access to the law library "for the
last few months" but failed to include specific facts indicating
the duration of the lockdown. Van Hee, 238 Ill.Dec. 641, 712
N.E.2d at 367. The Court stated:
Absent specific dates, we are left to speculate that
the lockdown lasted a short period of time. Under
these circumstances, the lockdown did not excuse
defendant's delay because defendant could have
utilized the law library during the times that the
lockdown was not in effect. Van Hee, 238 Ill.Dec.
641, 712 N.E.2d at 367.
The court further concluded that the defendant's argument that he
was unfamiliar with the amended limitations period was
insufficient to establish that the delay was not due to his
culpable negligence. Van Hee, 238 Ill.Dec. 641, 712 N.E.2d at
This court must conclude that, even accepting the reasoning of
the courts in Mitchell and Van Hee that denial of access to
the law library because of a lockdown can, in some circumstances,
excuse a late filing, Petitioner here has not established a
legitimate excuse for not filing his petition in a timely
fashion. Like the defendant in Van Hee, Petitioner did not
provide specific dates for the lockdown. In his affidavit,
Petitioner stated that Stateville Correctional Center was on
"continuous lock-down." However, in his Answer to Respondent's
Motion to Dismiss, Petitioner states that the prison "was in
lockdown for a portion of the time Petitioner was there." This is
not sufficient to show that there was inadequate time available
between June 9, 1994, the date of the appellate court's decision
on his first appeal, and June 30, 1995, the last date a timely
petition could be filed, to file his petition for post-conviction
relief. See Van Hee, 238 Ill.Dec. 641, 712 N.E.2d at 367. Also,
the fact that he received erroneous advice from appellate counsel
about the limitations period could not excuse his late filing.
Lee, 227 Ill.Dec. 980, 688 N.E.2d at 674-75.
Based upon Illinois law, the appellate court properly dismissed
Petitioner's appeal because his petition for post-conviction
relief was untimely. See Caraballo, 237 Ill.Dec. 930, 710
N.E.2d at 562-63. Further, based upon Illinois law, Petitioner
has not established that his failure to file a timely petition
for post-conviction relief was not due to his culpable
negligence. Petitioner's petition for post-conviction relief was
clearly not timely under Illinois law.
In McClain v. Page, 36 F. Supp.2d 819 (C.D.Ill. 1999), this
court considered an issue very similar to the issue in this case.
This court noted that a "properly filed application" is one
submitted according to the state's procedural rules, including
the rules governing the time and place of filing. McClain, 36
F. Supp.2d at 821. Accordingly, this court concluded that an
untimely petition was not "properly filed" and could not toll the
limitations period under § 2244(d)(2). McClain, 36 F. Supp.2d at
821; see also United States ex rel. Villazana v. Page, 1999 WL
342384, at *3 (N.D.Ill. 1999); United States ex rel. Jefferson
v. Gilmore, 1999 WL 261737, at *2 (N.D.Ill. 1999); United
States ex rel. Walker v. Carter, 1998 WL 685373, at *2 (N.D.Ill.
1998). Because McClain's post-conviction petition was found
untimely and was dismissed by the circuit court, and the
dismissal was affirmed on appeal, this court found that McClain
did not have a "properly filed application" for state
post-conviction relief. McClain, 36 F. Supp.2d at 821.
Therefore, this court held that the limitations period was not
tolled and, to be timely, McClain's petition for habeas corpus
relief had to be filed by April 23, 1997. McClain, 36 F. Supp.2d
at 821. This court then dismissed McClain's petition as time
barred. McClain, 36 F. Supp.2d at 821.
Here, this court has concluded that Petitioner's petition for
post-conviction relief was not timely under Illinois law and,
accordingly, his appeal from the dismissal of his petition was
properly dismissed by the Illinois Appellate Court. As a result,
this court concludes that this case cannot be distinguished from
McClain. This court finds that its decision in McClain was
correct and must be followed here. Consequently, Petitioner's
untimely post-conviction petition did not toll the limitations
period and, to be timely, his petition for
habeas corpus relief had to be filed by April 23, 1997. See
McClain, 36 F. Supp.2d at 821; see also United States ex rel.
Gooch v. Scillia, 56 F. Supp.2d 1040, 1042 (N.D.Ill. 1999)
(because the Appellate Court found that petitioner did not file
his petition for post-conviction relief in a timely manner, court
would not toll the limitations period for filing his habeas
In the alternative, Petitioner argues that the limitations
period for filing his petition for a writ of habeas corpus should
be equitably tolled. Petitioner contends that equitable tolling
is warranted by the "extraordinary circumstances of his case." He
again argues that he was misled by his appellate counsel and that
Stateville Correctional Center was in lock-down for a portion of
the time he was there. He also contends that the law clerk at the
prison failed to provide adequate assistance to him. This court
recognizes that courts have found that the one-year period of
limitations is not jurisdictional but operates as a statute of
limitations and is therefore subject to equitable tolling.
United States v. Griffin, 58 F. Supp.2d 863 868 (N.D.Ill. 1999);
Walker, 1998 WL 685373, at *2; United States ex rel. Lacey v.
Gilmore, 1998 WL 397842, at *3 (N.D.Ill. 1998). However,
equitable tolling should be granted only in "extraordinary
circumstances." Griffin, 58 F. Supp.2d at 868-69. A claim of
excusable neglect or a run-of-the-mill claim of ignorance of the
law is not sufficient to warrant equitable tolling of the
limitations period. Griffin, at 868.
This court concludes that Petitioner's fairly "run-of-the-mill"
claims that he was misled by his appellate counsel and that the
prison was sometimes on lock-down do not establish "extraordinary
circumstances" justifying equitable tolling. See United States
ex rel. Morgan v. Gilmore, 26 F. Supp.2d 1035, 1039 (N.D.Ill.
1998) (lock-down at Pontiac Correctional Center did not prevent
petitioner from filing timely application); Lacey, 1998 WL
397842, at *3 (denial of access to law library for limited period
of time did not excuse late filing of habeas petition).
Similarly, his claim that the prison law clerk did not provide
adequate assistance does not establish "extraordinary
circumstances." This court notes that it was Petitioner's
responsibility to file his petition on a timely basis.
Petitioner's status as a pro se litigant did not exempt him from
compliance with the relevant rules of procedural and substantive
law, such as the requirement of timely filing. United States ex
rel. Freeman v. Page, 1998 WL 171822, at *3 (N.D.Ill. 1998).
This court further notes, as it did in McClain, that even if
Petitioner's habeas corpus petition was not dismissed, 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
petition for habeas corpus relief based upon procedural default
because the untimely post-conviction petition was dismissed by
the state court and not decided on the merits). This court again
concludes, as it did in McClain, that the proper procedure is
to dismiss the habeas petition as untimely pursuant to
28 U.S.C. § 2244(d)(1). See McClain, 36 F. Supp.2d at 821.
IT IS THEREFORE ORDERED THAT:
(1) Respondent's Motion to Dismiss (# 7) is GRANTED.
(2) The clerk is directed to dismiss the petition (# 4) with
prejudice. This case is terminated.