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U.S. EX REL. FORD v. PAGE

March 6, 2001

UNITED STATES OF AMERICA EX REL., JIMMIE LEE FORD, PETITIONER,
V.
JAMES H. PAGE, RESPONDENT.



The opinion of the court was delivered by: James H. Alesia, District Judge.

MEMORANDUM OPINION AND ORDER

Before the court is respondent's motion to dismiss petitioner Jimmie Lee Ford's petition for writ of habeas corpus, which he filed pursuant 28 U.S.C. § 2254. For the following reasons, the court grants respondent's motion to dismiss.

I. BACKGROUND

Petitioner Jimmie Lee Ford ("Ford") is a state prisoner. Following a jury trial, Ford was convicted of attempted first degree murder and aggravated battery. On October 31, 1991, Ford was sentenced to sixty years for attempted murder and five years for aggravated battery, with the sentences to run consecutively. Ford appealed his conviction and sentence, and on June 3, 1994, the Illinois Appellate Court affirmed both the conviction and sentence. On October 6, 1994, the Illinois Supreme Court denied Ford leave to appeal.

Then, on June 1, 1995, Ford filed a post-conviction petition with the state court. On August 3, 1995, the state trial court ruled that the petition was frivolous and patently without merit. On May 1, 1997, the Illinois Appellate Court affirmed that ruling. Finally, on October 1, 1997, the Illinois Supreme Court denied Ford's petition for leave to appeal. Undiscouraged, however, Ford filed a second state post-conviction petition on May 12, 1998. This petition was dismissed as untimely on June 23, 1998. The Illinois Appellate Court affirmed that ruling on July 30, 1999, and the Illinois Supreme Court again denied Ford leave to appeal on December 1, 1999.

On July 11, 2000, Ford filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Ford argues that (1) the trial court erred in imposing an extended sentence; (2) the police failed to advise him of his Miranda rights; and (3) the state failed to prove that Ford intended to kill the victim. On August 31, 2000, respondent filed a motion to dismiss Ford's petition as untimely. The court addresses respondent's motion to dismiss in the discussion that follows.

II. DISCUSSION

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") which established a one-year period of limitation for filing a motion under 28 U.S.C. § 2254. Under the AEDPA, a state prisoner who wants collateral relief from a federal court must file his federal petition within one year from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244 (d)(1); see also Owens v. Boyd, 235 F.3d 356, 357 (7th Cir. 2000). For § 2254 petitions filed by persons convicted prior to the effective date of the AEDPA, the period of limitations began to run on April 24, 1996. Gendron v. United States, 154 F.3d 672, 675 (7th Cir. 1998). In other words, if a state prisoner was convicted prior to April 25, 1996, then under the AEDPA he would have until April 23, 1997 to file a timely petition. See id.; see also Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997).

However, under the AEDPA, the one-year period of limitations 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) (emphasis added). The Seventh Circuit has created a clear rule for determining whether a state petition is "properly" filed: If the state court considered the claim on its merits, it was properly filed; if it dismissed the claim for procedural flaws ...


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