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August 24, 2001


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


Petitioner Rodney Cooks has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent*fn1 has filed a motion to dismiss the petition as time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA"), 28 U.S.C. § 2244 (d). For the reasons explained below, respondent's motion is denied.


Petitioner filed the instant petition on March 1, 1999. Under § 2244(d) of the ABDPA, petitioner had one year from the date on which the judgment against him became final by the conclusion of direct review, or the expiration of time for seeking such review, in which to file the instant petition. In order to determine whether petitioner met that deadline, the court must first determine when petitioner's one-year clock began ticking.

Petitioner was convicted of murder and attempted murder and sentenced to concurrent terms of 50 and 30 years imprisonment on December 15, 1993. Thereafter, petitioner appealed his conviction and sentence, and both were affirmed by the Illinois Appellate Court on September 3, 1996. See People v. Cooks, 707 N.E.2d 294 (Ill. App. Ct. 1st Dist. 1996). Petitioner then sought leave to appeal to the Illinois Supreme Court, but his request was denied on December 4, 1996. See People v. Cooks, 675 N.E.2d 635 (Ill. 1996). Following that date, petitioner had ninety days in which to file a petition for writ of certiorari in the United States Supreme Court. Because petitioner chose not to seek certiorari, his direct review in the instant case became final on March 4, 1997 (ninety days after December 4, 1996). See Boggan v. Chrans, 2000 U.S. Dist. LEXIS 17935, *6, 2000 WL 1810035, *2 (N.D. Ill. Dec. 6, 2000) (adding the ninety-day period in which the petitioner could have sought certiorari from the Supreme Court to the conclusion of his direct review period); United States ex rel. Williams v. DeTella, 37 F. Supp.2d 1048, 1048 (N.D. Ill. 1998) (same); United States ex rel. Gonzalez v. DeTella, 6 F. Supp.2d 780, 781-82 (N.D. Ill. 1998) (same), rev'd on other grounds, 202 F.3d 273 (7th Cir. 1999).

Thus, petitioner's one-year clock began ticking on March 4, 1997, and was clearly out of time by March 1, 1999, when petitioner filed the instant petition. Under § 2244(d)(2) of the AEDPA, however, the court must exclude the time "during which a properly filed application for State post-conviction . . . review . . . is pending." Petitioner did file an application for post-conviction review in Illinois state court, which was pending from April 28, 1997, until March 12, 1999. Consequently, the question before the court is whether petitioner's Illinois post-conviction application was "properly filed"; if it was, the one year period under § 2244(d) is "tolled" for the duration of petitioner's state proceedings, making his federal habeas petition timely.

Petitioner's initial post-conviction application for relief was dismissed sua sponte by the Circuit Court of Cook County on June 20, 1997, less than two months after it was filed. In dismissing the petition, the circuit court acted within its authority under 725 ILCS § 5/122-2.1(a)(2), which allows the circuit court to dismiss post-conviction petitions that are "frivolous or . . . patently without merit" within 90 days of their filing, by written order that specifies "the findings of fact and conclusions of law it made in reaching its decision." In its Order, the circuit court addressed the timeliness of petitioner's application pursuant to 725 ILCS § 5/122-1, noting that effective January 1, 1996, that section read:

No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court (or more than 45 days after the deadline for the filing of defendant's brief with the Illinois Supreme Court if no brief is filed) or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.*fn2

Under § 5/122-1, the circuit court concluded, petitioner should have filed his post-conviction petition by December 15, 1996, three years from the date of his conviction. Instead, petitioner did not file his post-conviction petition until April 28, 1997, "over four months beyond the statutory period." People v. Cooks, No. 92-CR-25255, slip op. at 9 (June 20, 1997). The circuit court further noted that petitioner "failed to allege any facts showing that his delay in filing the petition was not due to his culpable negligence." Id.. Based on all this, the circuit court found petitioner's application time-barred.*fn3 Id.

In addition to this finding, the circuit court went on to thoroughly address each of petitioner's arguments in his post-conviction application for relief. Id. at 9-13. For example, the circuit court addressed petitioner's claims of ineffective assistance of trial counsel and found them to be "without merit," lacking in support, and "groundless" based on the trial record. Id. at 10-12. The circuit court also found petitioner's ineffective assistance of pre-trial counsel claim to be "without merit." Id. at 13. Consequently, the circuit court concluded that petitioner's claims are "frivolous and patently without merit."*fn4 Id.

Petitioner appealed the circuit court's judgment and was represented in his appeal by a public defender from Cook County. Petitioner's counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), however. The motion seeks leave to withdraw on the following bases:

The petition was not timely filed (3 years from the date of sentence or 6 months from the end of direct appeal, whichever is sooner). Moreover, the petition does not set forth the gist of a constitutional claim. See People v, Mendez, 221 Ill. App.3d 868, 873 (1991). Therefore, there are no appealable issues in the case. See Pennsylvania v. Finley, 481, U.S. 551 (1987). (Emphasis in original.)

On March 12, 1999, the Illinois appellate court issued an Order granting the public defender's motion to withdraw and affirming the dismissal of petitioner's post-conviction petition. The Order states:

Defendant Rodney Cooks appeals from the summary dismissal of his pro se post-conviction petition, which sought to overturn his convictions for first degree murder and attempted murder, for which he received concurrent prison terms of 50 years and 30 years, respectively. These convictions and sentences were affirmed on direct appeal. People v. Cooks, No. 1-94-0913 (1996) (unpublished order under Supreme Court Rule 23). The public defender of Cook County, who represents defendant on appeal, has filed a motion for leave to withdraw as appellate counsel. A brief in support of the motion has been submitted ...

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