The opinion of the court was delivered by: Marvin E. Aspen, District Court Judge.
MEMORANDUM OPINION AND ORDER
On April 12, 1989, Petitioner Rafael Mendez was found guilty of
murder, attempted robbery and unlawful use of a firearm by a felon in
Cook County, Illinois. He was sentenced to 50 years in prison. Mendez has
filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging ineffective assistance of counsel, the
state's knowing use of perjured testimony and discovery violations.
Respondent, Mark A. Pierson, in turn has filed a motion to dismiss the
petition as time-barred under the Antiterrorism and Effective Death
Penalty Act of 1996. As explained below, we grant the motion to dismiss.
In June, 1989, Mendez and a co-defendant were found guilty in a bench
trial of murder, attempted robbery and unlawful use of a firearm by a
felon in Cook County, Illinois, and sentenced to a term of 50 years.
Mendez appealed the judgment of the Cook County Circuit Court in an
appeal consolidated with the appeal of his co-defendant. On September 2,
1992, the Illinois Appellate Court affirmed Mendez's
sentence. On November 30, 1992, Mendez filed a petition for leave to
appeal with the Illinois Supreme Court, which was denied on June 3, 1993.
In December, 1993, Mendez filed a post-conviction petition in the Circuit
Court of Cook County, and this petition was dismissed by the Circuit
Court on November 13, 1995. Mendez then appealed the dismissal of his
post-conviction petition to the Illinois Appellate Court, and on October
13, 1998, the Appellate Court affirmed the dismissal of his petition. The
Appellate Court denied Mendez's December3, 1998 petition for rehearing,
but issued a modified order on January 12, 1999, which again affirmed the
dismissal of Mendez's petition. Finally, Mendez filed a petition for
leave to appeal with the Illinois Supreme Court which was denied on June
2, 1999. Mendez filed his petition for writ of habeas corpus before us on
October 19, 2000, claiming: (1) ineffectiveness of trial counsel; (2)
ineffectiveness of appellate counsel; (3) the State's knowing use of
perjured testimony; and (4) discovery violations.
Respondent argues that Mendez's petition for writ of habeas corpus
should be dismissed with prejudice as untimely under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244
(d)(1). The AEDPA became effective on April 24, 1996 and imposed a
one-year statute of limitations for filing section 2254 petitions for
writ of habeas corpus. Section 2244(d) provides that:
(1) A one-year period of limitation shall apply to an
application for 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 the judgment became final by
the conclusion of direct review or the
expiration of the time for seeking such
(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
Mendez's conviction was final on September 1, 1993, the date on which
the Illinois Supreme Court denied his petition for leave to appeal on
direct appeal (June 3, 1993) plus 90 days for the filing of a petition
for a writ of certiorari to the United States Supreme Court. Because his
conviction was final prior to the enactment of the AEDPA, he had one year
from the effective date of that statute — April 24, 1996 —
within which to file his § 2254 petition. See Gendron v. United
States, 154 F.3d 672, 675 (7th Cir. 1998). However, the time during which
a post-conviction petition is pending in state court is not counted
toward the one-year period. 28 U.S.C. § 2244 (d)(2); Gendron, 154
F.3d at 675. Because Mendez had a post-conviction petition pending in
state court, the statute did not start running until June 2, 1999, the
date his petition for leave to appeal from his post-conviction
proceedings was denied by the Illinois Supreme Court. Therefore, Mendez
was required to file his petition for writ of habeas corpus by June 2,
2000 to meet the statutory requirement.
Mendez filed his petition for writ of habeas corpus on October 19,
2000, four months after the statute had run. The one-year deadline is not
jurisdictional, however, so Mendez's petition may be reviewed if he can
show that "equitable tolling" is warranted. See Taliani v. Chrans,
189 F.3d 597, 597-98 (7th Cir. 1999). Mendez argues that the
circumstances of his
cause justify the application of the doctrine of
Under the judge-made doctrine of "equitable tolling," we may excuse
Mendez's failure to file his § 2254 petition within the limitations
period only if he shows that he "could not, despite the exercise of
reasonable diligence, have discovered all the information he needed in
order to be able to file his claim on time." Taliani, 189 F.3d at 597. In
other words, we may entertain a petition that is untimely filed when, due
to extraordinary circumstances beyond a petitioner's control, he cannot
reasonably be expected to file his suit on time, see Miller v. Runyon,
77 F.3d 189, 191 (7th Cir. 1996), and thus the "`principles of equity
would make [the] rigid application [of a limitation period] unfair.'"
Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d
Cir. 1998) (quoting Shendock v. Dir., Office of Workers' Compensation
Programs, 893 F.2d 1458, 1462-64 (3d Cir. 1990) (en banc)).
Mendez argues that his counsel is at fault here and that he himself did
exercise reasonable diligence. Normally, however, a lawyer's mistake is
not a valid basis for equitable tolling. Taliani, 189 F.3d at 598.
Petitioners do not have a constitutional right to counsel "when mounting
collateral attacks upon their convictions," Pennsylvania v. Finley,
481 U.S. 551, 555, 107 S.Ct. 1990 (1987), and alleged ineffective
assistance of habeas counsel is not a viable basis for tolling the §
2254 statute of limitations. Casas v. U.S., 88 F. Supp.2d 858, 859
(N.D.Ill. 1999). The Supreme Court has emphasized that "the petitioner
bears the risk in federal habeas for all attorney errors made in the
course of the representation," because "the attorney is the petitioner's
agent when acting, or failing to act, in furtherance of the litigation."
Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct. 2546 (1991).
Following this reasoning, we decline to toll the statute of limitations
in Mendez's case.
Mendez elected to wait for written notice from counsel indicating the
status of his petition for leave to appeal rather than discover the
status on his own and file his § 2254 petition pro se, which the
instant petition — finally filed prose almost 2 years after the
filing of the leave to appeal — demonstrates he was capable of
doing. On March 11, 1999, Mendez was informed by counsel that the
Illinois Supreme Court allowed the filing of his petition for leave to
appeal. However, Mendez made no attempt to discover the status of the
petition until January, 2000, when he sent a letter to counsel asking
whether the Illinois Supreme Court had granted or denied the petition.
Counsel sent a letter to Mendez on August 24, 2000, indicating that