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POSADA v. SCHOMIG

September 2, 1999

DIEGO POSADA, PETITIONER,
v.
JAMES W. SCHOMIG, WARDEN, RESPONDENT.



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

ORDER

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) is GRANTED.

FACTS

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 People v. Posada, No. 3-93-0389 (June 9, 1994) (unpublished order).*fn1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 relief.*fn2

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).

ANALYSIS

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 writ of 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 ...

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