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U.S. EX REL. WESTON v. CLARK

June 5, 2000

UNITED STATES EX REL. DESMOND WESTON, PLAINTIFF,
V.
WARDEN CLARK, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Desmond Weston filed this pro se petition for a writ of habeas corpus on August 4, 1999. On August 24, 1999, the court issued a Rule To Show Cause why the petition should not be dismissed as untimely. Weston's response states that he pursued all state court remedies in a timely fashion and that newly discovered evidence excuses his late filing. Weston further states that his habeas petition includes issues raised on direct appeal in his state post-conviction as well as several new claims.

Weston does not clearly identify the "new evidence" in his response, nor does Weston explain how this new evidence gives rise to any or all of the legal claims in his petition for a writ of habeas corpus. In addition, Weston offers no legal or factual argument in support of his assertion that his state court remedies were timely.

Background

Following a jury trial, Weston was convicted of first degree murder and attempted first degree murder and sentenced to consecutive aggregate terms of 75 years. On March 31, 1995, the judgment was affirmed on direct appeal in a published opinion (People v. Weston, 271 Ill. App.3d 604, 208 Ill.Dec. 146, 648 N.E.2d 1068 (1995)) and a separate accompanying Rule 23 order. The Illinois Supreme Court denied Weston leave to appeal on June 1, 1995. On February 20, 1998, Weston filed a pro se post-conviction petition in state court. In that petition, Weston raised nine constitutional claims. The trial court dismissed the post-conviction proceeding on March 3, 1998, without an evidentiary hearing. Weston appealed and the dismissal was affirmed in a brief order dated December 31, 1998. A petition for leave to appeal to the Illinois Supreme Court was denied on March 31, 1999.

On August 4, 1999, Weston filed his petition for a writ of habeas corpus in this court. Weston raises eleven claims: 1) Fourth Amendment right to be free from unreasonable search and seizure violated when he was arrested without probable cause or a warrant upon information provided by an unreliable informant; 2) Fourteenth Amendment Due Process rights and Sixth Amendment right to fair trial violated when trial court abused its discretion in joining his indictment with that of another individual; 3) Sixth Amendment right to fair trial and confront witnesses violated when trial court permitted hearsay testimony; 4) Sixth Amendment right to fair trial and Fourteenth Amendment Due Process violated when state's attorney made inflammatory statements during opening and closing arguments; 5) trial court abused its discretion when the trial court imposed consecutive sentences without considering mitigating circumstances; 6) state's attorney violated his rights in making statements regarding gang evidence during opening arguments and then failing to introduce any evidence in support of those statements; 7) Fourth Amendment rights violated when trial court abused its discretion in denying Weston's motion to suppress evidence resulting from his arrest; 8) ineffective assistance of trial counsel; 9) Fourteenth Amendment Due Process rights violated when convicted for a murder when he was innocent; 10) ineffective assistance of appellate counsel and denial of due process in the collateral attack on his conviction; 11) the trial court and appellate court abused their discretion in dismissing his post-conviction petition. Weston states that he raised all these claims in the post-conviction proceeding. Because both claim ten and eleven relate to Weston's post-conviction petition, it is unclear exactly when and how those claims were raised. Accordingly, the court will consider those claims separately from the claims arising from the trial and the direct appeal.

Discussion

Before the court may entertain Weston's claims, the court must first determine whether they are brought in a timely manner. Weston filed his petition for writ of habeas corpus on August 4, 1999. Thus, the petition is governed by 28 U.S.C. § 2244 as amended by the Antiterrorism and Effective Death Penalty Act (hereinafter "AEDPA"). See Gendron v. United States, 154 F.3d 672, 675 (7th Cir. 1998). In 1996, Congress enacted AEDPA which established a one-year period of limitation for filing a petition under 28 U.S.C. § 2254. Section 28 U.S.C. § 2244(d)(d) states in part:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(a) the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(2) The 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 shall not be counted toward any period of limitation under this section.
  28 U.S.C. § 2244(d).

For those state prisoners whose judgments of conviction became final prior to the effective date of AEDPA, the one-year period of limitations began to run on April 24, 1996, AEDPA's enactment date. Gendron, 154 F.3d at 675. Thus, the statute of limitations for all convictions that became final prior to April 24, 1996, began to run on April 24, 1996. The statute of limitations would be tolled, however, during the pendency of a properly filed post-conviction petition.

A state post-conviction proceeding that is barred by the statute of limitations is not "properly filed" within the meaning of the tolling provisions for federal habeas corpus proceedings. U.S. ex. rel. Everett v. Neal, 65 F. Supp.2d 850 (N.D.Ill. 1999). See also Dictado v. Ducharme, 189 F.3d 889, 890, 891 (9th Cir. 1999) (to trigger tolling provision for "properly filed" application for collateral review, means to submit application in compliance with the procedural laws of the state); Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999) ("Properly filed application" for collateral review is one that conforms with state's applicable procedural filing requirements); Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998) ("Properly filed application" is one submitted according to state's procedural requirements, such as rules governing time and place of filing); and cf. ...


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