The opinion of the court was delivered by: Ruben Castillo, United States District Judge.
MEMORANDUM OPINION AND ORDER
Eskhiria Guyana petitions this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, attacking his state court solicitation
of murder for hire conviction. Guyana raises eleven issues in his
petition, including multiple trial court error and ineffective assistance
of counsel claims. Respondent argues that Guyana's habeas corpus petition
is untimely, pursuant to § 2244, in that Guyana filed his
post-conviction petition more than six months after the denial of his
direct petition for leave to appeal. Respondent asserts that, because the
state courts determined that Gilyana's post-conviction petition was
untimely without addressing the merits of the petition, the statute of
limitations for filing his habeas corpus petition began to run on January
2, 1997. As Gilyana did not file his habeas corpus petition until July
2, 2000, after the statute of limitations had expired by more than two
and a half years, Respondent contends that this Court must dismiss
Gilyana's petition. After a thorough review of Guyana's petition and a
careful reading of the state court record, we dismiss his petition for a
writ of habeas
corpus, with prejudice, pursuant to 28 U.S.C. § 2244(d)(1). (R.
When considering a habeas corpus petition, the Court presumes that the
factual determinations of the state court are correct.
28 U.S.C. § 2254(e)(1). Accordingly, we adopt the facts as set forth
by the Illinois Appellate Court in People v. Gilyana, No. 1-95-0569
(Ill. App. Ct. Mar. 21, 1996), and People v. Gilyana, No. 1-98-2075
(Ill. App. Ct. Mar. 10, 2000).
Guyana was charged with the Class X felonies of solicitation of murder
and solicitation of murder for hire. On November 22, 1994, following a
bench trial before Judge William J. Hibbler, Gilyana was found guilty of
solicitation of murder for hire. On January 10, 1995, Gilyana was
sentenced to a prison term of twenty years, the minimum term for
solicitation of murder for hire.
The evidence presented at trial established that Gilyana and Thomas
"Rico" Younadam were brothers-in-law and held different opinions about
the political situation in their native Iraq. In May 1993, Gilyana
solicited and offered to pay $2,000 to Travis Harris to kill Younadam.
Chicago police made court-authorized tape recordings of the conversations
between Gilyana and Harris, and the tape recordings were introduced into
evidence at trial. During one conversation, for example, after Harris
falsely told Gilyana that he had killed Younadam, Guyana laughed.
Gilyana appealed his conviction to the Illinois Appellate Court and
raised the following issues: (1) the trial court erred in denying
Gilyana's motion to suppress evidence obtained by an improperly granted
application for a consensual overhear because the application was
insufficient in that it failed to show reasonable cause that a crime was
about to be committed and was based on uncorroborated hearsay; and (2)
the trial court erred in denying Guyana's request for a Franks v.
Delaware hearing where it was shown through sworn testimony at trial that
the informant provided false information for the application. On March
21, 1996, the Illinois Appellate Court affirmed Gilyana's conviction.
Gilyana filed a petition for leave to appeal to the Illinois Supreme
Court, raising the same issues as above. On October 2, 1996, the Illinois
Supreme Court denied Gilyana's petition for leave to appeal.
On April 21, 1997, Gilyana filed a petition for post-conviction relief
and raised the following issues: (1) he was denied due process when the
trial court failed to sua sponte ascertain whether he was taking
psychotropic medicine under medical direction that would require a fitness
hearing; (2) his due process rights were violated at sentencing when the
pre-sentence investigation report stated that he was taking psychotropic
medicine, and the court failed to hold a fitness hearing; (3) he was
denied due process and the effective assistance of counsel when trial
counsel, who had full knowledge of Gilyana's psychiatric treatment and
his taking psychotropic medicine, failed to request a fitness hearing;
(4) he was denied effective assistance of counsel when trial counsel
failed to interview witnesses, substitute the judge and inform him of the
State's plea offer. On April 29, 1998, the trial court dismissed Guyana's
post-conviction petition as untimely.
On April 24, 2000, Gilyana filed a petition for leave to appeal to the
Illinois Supreme Court and raised the following issues: (1) his
post-conviction petition showed that the delay was not due to his culpable
negligence; and (2) both the trial and appellate courts erred in denying
him an evidentiary hearing to determine such and to allow him to overcome
the prejudicial effects of procedural default in violation of his Fifth
and Fourteenth Amendment rights. On July 5, 2000, the Illinois Supreme
Court denied Gilyana's petition for leave to appeal.
Currently before the Court is Gilyana's petition for a writ of habeas
corpus, filed on July 2, 2001. In his petition, Gilyana raises the
following claims for relief: (1) he was denied effective assistance of
counsel when appellate counsel failed to supply him with a copy of his
appellate record with enough time to file a timely post-conviction
petition; (2) the trial court erred in dismissing his post-conviction
petition because the Illinois Supreme Court issued its mandate on October
24, 1996, which gave Gilyana until April 21, 1997 to file his
post-conviction petition and not until October 2, 1996, as the court
erroneously believed; (3) the trial court erroneously denied him a
fitness hearing although he was taking various psychotropic medications
from December 6, 1993 until the time of his conviction; (4) he was denied
effective assistance of counsel when trial counsel failed to request a
fitness hearing; (5) he was denied effective assistance of counsel when
trial counsel denied him his right to trial by jury by convincing him
that he would receive a minimum sentence of thirty years if he was
convicted; (6) he was denied effective assistance of counsel when trial
counsel failed to honor his request for a substitution of judges; (7) he
was denied effective assistance of counsel and due process of law when
trial counsel failed to advise him that the prosecutor made a plea
offer; (8) he was denied effective assistance of counsel when trial
counsel failed to interview the State's witnesses prior to trial; (9) the
trial court erred by denying his supplemental motion to suppress the
evidence obtained pursuant to the judicial overhear order; (10) the trial
court erred by denying an evidentiary hearing pursuant to Franks v.
Delaware; and (11) he was denied effective assistance of counsel when
appellate counsel only raised two of the claims that are raised in
Gilyana's instant petition. On September 14, 2001, Respondent filed a
motion to dismiss Gilyana's habeas petition as untimely. For the
following reasons, Gilyana's petition for a writ of habeas corpus is
I. Statute of Limitations