United States District Court, Northern District of Illinois, Eastern Division
March 28, 2003
UNITED STATES OF AMERICA EX REL. FABIAN SANTIAGO, B-79716, PETITIONER,
JONATHAN R. WALLS, WARDEN, RESPONDENT
The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge.
This Court's most recent (January 24, 2003) memorandum in this action placed on hold, pending the United States Supreme Court's decision in Clay v. United States, Dkt. No. 01-1500, the motion to dismiss that had been filed by respondent Warden Jonathan Walls. Although Clay did not pose in direct fashion the issues presented by the Warden's motion, the then-expected imminence of that decision suggested prudence in waiting to see whether anything said there might cast light on the matters before this Court.
On March 4 the Clay decision came down (71 U.S.L.W. 4155). Its discussion was limited to the includability of the time for seeking certiorari in fixing the date when a judgment of conviction becomes final (thus starting the one-year limitations clock ticking under 28 U.S.C. § 2255*fn1 for federal prisoners, just as it does under Section 2244(d)(1) for state prisoners seeking federal habeas relief. Nothing in the discussion in Clay provides added insight as to the controlling issues here.
It therefore appears that the Warden's motion to dismiss is well taken:
1. After the May 4, 1999 date of finality of the
direct appeal by petitioner Fabian Santiago
("Santiago") from his state court conviction (a date
that takes into account the time within which he could
have sought, but did not seek, certiorari) and before
the August 9, 1999 filing of his state court
post-conviction petition, 97 days ran on the one-year
2. Between the June 22, 2001 date on which the
Illinois Appellate Court rejected Santiago's appeal
relating to his post-conviction petition and the May
2, 2002 filing date of his Section 2254 petition
here, another 314 days elapsed.
That second calculation does not credit Santiago for any time within which he could have sought, but did not seek, further review of the Appellate Court's turndown — a matter controlled by our Court of Appeals' decision in Gutierrez v. Schomig, 233 F.3d 490
(7th Cir. 2000) as to when a post-conviction application is "pending" for purposes of the Section 2244(d)(2) tolling provision.*fn2
What has been said here would ordinarily call for the granting of Warden Walls' motion and the dismissal of Santiago's petition and this action. But up to now Santiago's able appointed counsel, James Graham, Esq., has not been afforded an opportunity to address the issue dealt with here. Accordingly attorney Graham is granted leave to file in this Court's chambers on or before April 15, 2003 (with a copy to be transmitted to respondent's counsel) an appropriate filing on the subject of timeliness. In that respect, it should of course be understood that if attorney Graham sees no arguable avenue of escape for Santiago, he is at liberty to follow the path marked out by Anders v. California — without feeling any need to elaborate on the analysis advanced by Warden Walls' counsel or stated in this memorandum.