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
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.
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.
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
(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.
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. ...