The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Petitioner Roy Noel filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. Respondent Dwayne Clark moves
to dismiss on the ground the petition is time-barred. For the
reasons set forth below, the motion is denied.
Following a jury trial in Cook County Circuit Court, Mr. Noel
was convicted of murder and armed robbery in the (September 26,
1982) killing of Howard Rollins in Chicago. People v. Noel,
132 Ill. App.3d 1161, 98 Ill.Dec. 837, 494 N.E.2d 959 (1985). He was
sentenced to concurrent terms of 40 years imprisonment for murder
and 20 years for armed robbery. Id. at 1. Mr. Noel's conviction
and sentence were affirmed by the Illinois Appellate Court on
April 11, 1985, id. at 11, and he petitioned for leave to appeal
to the Illinois Supreme Court. That petition was denied on
October 2, 1985. (Resp't's Ex. B.) On October 26, 1987, Mr. Noel
filed a state post-conviction petition. People v. Noel,
204 Ill. App.3d 1105, 174 Ill.Dec. 308, 598 N.E.2d 505 (1990). That
petition was dismissed by the circuit court, and the Illinois
Appellate Court affirmed. Id. at 2. Mr. Noel's petition for leave
to appeal that decision was denied by the Illinois Supreme Court
on February 6, 1991 (according to the supreme court clerk). On
June 26, 1995, Mr. Noel filed a state habeas corpus petition.
(Resp't's Ex. D.) Three months later (September 27, 1995), the
petition was dismissed by the circuit court. (Resp't's Ex. E.) On
August 20, 1997, the appellate court affirmed. People v. Noel,
291 Ill. App.3d 1121, 240 Ill.Dec. 285, 716 N.E.2d 879 (1997). Mr.
Noel then had 21 days (until September 10, 1997) to petition for
leave to appeal to the Illinois Supreme Court. Ill. Sup.Ct. R.
315(b). However, it was not until June 29, 1998, more than nine
months later, that he sought permission to file a late petition
for leave to appeal to the Illinois Supreme Court. (Resp't's Ex.
G.) That request was granted (according to the supreme court
clerk), and the petition for leave to appeal was filed on October
7, 1998. Id. About two months later (December 2, 1998) the
supreme court denied leave to appeal. (Resp't's Ex. H.) Mr.
Noel's federal habeas petition was filed about a week thereafter.
Under the Antiterrorism and Effective Death Penalty Act
("AEDPA"), there is a one-year statute of limitations for habeas
petitions brought pursuant to Section 2254.
28 U.S.C. § 2244(d)(1). That statute applies to cases filed after April 24,
1996, the AEDPA enactment date. Gendron v. United States,
154 F.3d 672, 675 (7th Cir. 1998), cert. denied, ___ U.S. ___, 119
S.Ct. 1758, 143 L.Ed.2d 790 (1999). Mr. Noel's federal habeas
petition was filed December 10, 1998, so the Section 2244(d)
statute of limitations applies to him.
Under that statute, the limitation period begins to run on "the
date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review." 28 U.S.C. § 2244(d)(1)(A). Mr. Noel pursued direct
review to the Illinois Supreme Court, which denied his petition
for leave to appeal on October 2, 1985. Under United States
Supreme Court Rule 13, he had 90 days to file a petition for writ
of certiorari with the United States Supreme Court, but there is
no indication he did so. Mr. Clark therefore contends the
limitations period began to run for Mr. Noel on January 2, 1986,
when the time expired for seeking Supreme Court review. (Mot.
to Dismiss ¶ 8.) However, for Section 2254 petitions, the
one-year limitations period does not begin to run until April
24, 1996, the AEDPA enactment date. Gendron, 154 F.3d at 675.
Therefore, no time prior to that date may be counted against Mr.
Noel. See United States ex rel. Johnson v. Illinois, No. 98 C
6523, 1999 WL 754688, at *2 (N.D.Ill. Sept. 10, 1999).
In addition, the statute is tolled for "[t]he time during which
a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim
is pending." 28 U.S.C. § 2244(d)(2). At the time the AEDPA
was enacted, Mr. Noel had a properly filed state habeas corpus
petition pending. That petition remained pending at least until
August 20, 1997, when the appellate court affirmed its dismissal.
The limitations period is tolled, moreover, for the time during
which a "properly filed application" is pending, and Mr. Noel's
subsequent motion for leave to file a late petition for leave to
appeal to the state supreme court was a properly filed
application because "`a properly filed application' is one
submitted according to the state's procedural requirements, such
as the rules governing the time and place of filing." Lovasz v.
Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998); accord Dictado v.
Ducharme, 189 F.3d 889, 892 (9th Cir. 1999); Villegas v. Johnson,
184 F.3d 467, 469 (5th Cir. 1999). The Third Circuit has reasoned
that AEDPA was designed to minimize federal intrusions into state
criminal law, so that "federal courts should not undermine the
state's decision by refusing to toll the one-year period of
limitation of § 2244(d)(1) . . . . Nor should we discourage
petitioners from exhausting all their claims in state
court . . . . where permissible under state law." Id. The state
of Illinois allows motions like Mr. Noel's. It would be
inappropriate to refuse to toll the limitations period in view of
the state's policies as to post-conviction review. But see United
States ex rel. Morgan v. Gilmore, 26 F. Supp.2d 1035, 1038
(N.D.Ill. 1998) (reaching opposite result); United States ex rel.
Jefferson v. Gilmore, No. 98 C 3342, 1999 WL 261737, at *3
(N.D.Ill. April 19, 1999) (same).
Accordingly, the limitations period began to run for Mr. Noel
as of September 10, 1997, when the time expired for him to seek
review in the Illinois Supreme Court of the decision on his state
habeas petition, see Gendron, 154 F.3d at 674, but the clock
stopped on June 29, 1998, when he sought permission to file a
late petition, and remained stopped through December 2, 1998,
when the state Supreme Court denied Mr. Noel leave to appeal. The
limitations period ran therefore, for less than a one-year
interval — a little less than ten months, to be more exact.
federal habeas petition thus is not time-barred under Section
2244(d). Mr. Clark's motion to dismiss Mr. Noel's § 2254
petition for writ of habeas corpus is DENIED.
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