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ALLEN v. BRILEY

March 21, 2003

MARSHAN T. ALLEN, PETITIONER,
v.
KENNETH BRILEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: John W. Darrah, United States District Judge

MEMORANDUM OPINION AND ORDER

Petitioner, Marshan I. Allen ("Allen"), socks a writ of habeas corpus against the Stateville Correctional Center Warden, Kenneth Briley ("Respondent"), pursuant to 28 U.S.C. § 2254. Allen raises nine grounds for relief: (1) ineffective assistance of appellate counsel for failing to raise, on direct appeal, the denial of Allen's motion to quash arrest and suppress evidence; (2) ineffective assistance of trial counsel for failing to object and preserve, in a post trial motion, that the state knowingly elicited and allowed perjured testimony; (3) ineffective assistance of trial counsel for failing to present available evidence and ineffective appellate counsel for failing to raise this issue on appeal; (4) ineffective assistance of trial counsel for failing to interview and call four witnesses; (5) ineffective assistance of counsel for admitting Allen's guilt to home invasion and ineffective assistance of appellate counsel for failing to raise this issue on appeal; (6) ineffective trial counsel for failing to object or move to have Allen's inculpatory statement suppressed and ineffective assistance of appellate counsel for failing to appeal this issue; and (7) denial of a fair trial based on the trial court's denial of Allen's motion to suppress. Presently before the Court is Respondent's Motion to Dismiss on grounds of untimeliness.

HISTORY

In August 1994, Allen was convicted, by a jury, of two counts of first degree murder and one count of home invasion. On August 23, 1994, Allen was sentenced to two concurrent terms of natural life imprisonment without parole. On direct appeal to the Illinois Supreme Court, the judgment was affirmed. People v. Allen, No. 1-94-3443 (1996) (unpublished order pursuant to Supreme Court Rule 23). On October 1, 1997, Allen's Petition for Leave to Appeal in the Illinois Supreme Court was denied.

On April 20, 1998, Allen filed an "amended" petition for relief under the Post-Conviction Hearing Act. Allen requested that the court permit him to amend his petition of March 16, 1998. The post-conviction court summarily dismissed the petition, finding that it was untimely and, if it was timely, that the allegations within the petition were barred under the doctrine of res judicata and waiver. A notation in the ruling reflected that no other post-conviction petition had been received by the court or the State's Attorney's office.

Allen appealed the denial of his post-conviction petition. The State Appellate Defender was appointed to represent Allen. Appellate counsel filed a motion pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), based on counsel's conclusion that an appeal would be frivolous. Allen filed a pro se response, objecting to counsel's action and assessment of the case. On September 7, 1999, the Appellate Court found that Allen did not file his petition within the statutorily mandated time limitations, nor did he set forth facts to show that his tardiness was not due to his culpable negligence. Furthermore, even if the untimeliness was excused, Allen would not be entitled to the relief requested because his claims were foreclosed under the doctrines of res judicata and waiver. People v. Alien, No. 1-98-2925 (1999) (unpublished order pursuant to Supreme Court Rule 23). Allen filed a Petition for Leave to Appeal in the Illinois Supreme Court, which was denied on February 2, 2000.

On June 5, 2000, Allen filed a pro se petition for relief from judgment. On August 18, 2000, the trial court dismissed the petition as non-meritorious. On September 6, 2000, Allen filed a pro se motion for reconsideration and for leave to file a supplemental petition. On October 13, 2000, the trial court considered the matter as a post-conviction petition and dismissed the matter as frivolous and patently without merit.

Allen appealed to the First District Illinois Appellate Court. Allen's appointed appellate counsel moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987) (Finley), based on counsel's conclusion that an appeal would be frivolous. On January 22, 2002, the appellate court allowed the Finley motion, finding no issues of arguable merit. On May 30, 2002, the Illinois Supreme Court denied Allen's Petition for Leave to File in the Illinois Supreme Court.

While the above appeal was pending, Allen filed another motion for reconsideration and leave to supplement his post-conviction petition. The trial court treated this motion as a third post-conviction petition and found that the denial of Allen's request to open or amend his post-conviction petition did not require a written order and that the issues raised in the petition were either raised or could have been raised earlier. The trial court denied Allen's motion.

Allen appealed this denial to the First District Illinois Appellate Court. Allen's appellate counsel filed a motion to withdraw pursuant to Finley based on counsel's conclusion that an appeal would be frivolous. On April 15, 2002, the appellate court allowed the motion. On October 2, 2002, the Illinois Supreme Court denied Allen's Petition for Leave to Appeal in the Illinois Supreme Court.

On October 7, 2002, Allen filed the instant petition. Respondent argues that Allen's petition is untimely because the statute of limitations on that petition had ran under 28 U.S.C. § 2244 (d)(1). Respondent also argues that Allen's post-conviction petition did not toll the statute of limitations under § 2244(d)(2) because Allen's post-conviction petition was untimely.

ANALYSIS

Section 2244(d)(i) provides that:

A 1-year period of limitations 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 the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]
28 U.S.C. ยง 2244 (d)(I)(A). However, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the ...

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