The opinion of the court was delivered by: Marvin E. Aspen, United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, Jimmy Coleman, is currently incarcerated at the Danville Correctional Center in Danville, Illinois, where he is in the custody of Warden Blair J. Leibach. Until recently, Coleman was incarcerated at the Western Illinois Correctional Center in Mount Sterling, Illinois, where he was under the custody of Respondent, Warden Dennis L. Hockaday. Coleman has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before us is Respondents motion to dismiss Coleman's petition. For the reasons set forth below, we deny the motion.
On August 13, 1991, a Cook County, Illinois jury found Coleman guilty of first degree murder, and sentenced him to a term of forty years. Coleman appealed the Circuit Court's judgment, which the Illinois Appellate Court affirmed. Coleman then filed a petition for leave to appeal with the Illinois Supreme Court, which was denied on December 6, 1994.
In June 1995, Coleman filed a post-conviction petition in the Circuit Court of Cook County that presented the following claims: (1) violation of his 4th Amendment rights through illegal wiretapping, unlawful arrest, and detention; (2) violation of his 5th Amendment right through unlawful custodial detention; (3) violation of his 7th Amendment right to a fair trial by being required to stand trial in jail attire; (4) denial of his due process rights by unduly suggestive identification procedures; (5) denial of effective assistance of trial counsel; and (6) denial of effective assistance of appellate counsel. Circuit Court Judge Michael P. Toomin dismissed Coleman's petition on August 3, 1995. See People v. Coleman, No. 91-CR-837 (unpublished order). The Circuit Court Clerk did not provide Coleman with notice of the dismissal of his first post-conviction petition or notice of his right to appeal the dismissal as required under Illinois Supreme Court Rule 651(b).
On August 25, 1995, Coleman filed an amendment to his first post-conviction petition. The amendment restated claims contained in Coleman's first post-conviction petition and additionally alleged that: (1) the state knowingly used perjured testimony against him at trial; (2) the trial court denied him discovery materials; (3) the trial court erred in admitting statements made by the victim and two witnesses; (4) violation of his 8th Amendment right against cruel and unusual punishment; (5) a psychological examination was not ordered until after his conviction and sentence; and (6) the appellate court erred in affirming his judgment of conviction. On November 9, 1995, the Circuit Court determined the filing to be a second post-conviction petition and dismissed it as frivolous. See People v. Coleman, No. 91-CR-837 (unpublished order). The Circuit Court Clerk provided Coleman with notice of the dismissal of his second post-conviction petition as well as notice of his right to appeal the dismissal. Coleman subsequently filed a timely appeal of that dismissal, which the Illinois Appellate Court affirmed on October 23, 1996. Coleman then filed a petition for leave to appeal with the Illinois Supreme Court, which was denied on January 29, 1997.
Coleman attempted to appeal the dismissal of his first post-conviction petition despite the Circuit Court Clerk's failure to provide him with the requisite notice. On February 8, 1996, the Illinois Appellate Court returned Coleman's appeal along with a letter errantly informing him that it had already been processed and had been assigned the appellate court number 1-95-4404. The appeal to which the Illinois Appellate Court referred was Coleman's appeal of the dismissal of his second post-conviction petition. After further inquiry by Coleman, the Illinois Appellate Court wrote to him on February 22, 1996, explaining that it had already received a notice of appeal on Coleman's behalf. Again, it referred to Coleman's appeal of the dismissal of his second post-conviction petition. On July 27, 1998, the Illinois Appellate Court confirmed that Coleman had indeed filed only one appeal, that from the dismissal order regarding his second post-conviction petition.
Throughout this time, Coleman also corresponded with Circuit Court Judge Toomin. In letters dating from March 1, 1996 to June 16, 1998, Judge Toomin explained that his examination of the court file reflected that Coleman took an appeal from both dismissal orders. Significantly, Judge Toomin informed Coleman that it was the Circuit Court Clerk that processed his appeal regarding the dismissal of his first post-conviction petition. On March 2, 1999, Coleman filed a mandamus petition in the Circuit Court before Judge Toomin demanding permission to file a late notice of appeal. Judge Toomin denied the mandamus petition on March 12, 1999. On May 17, 1999, Judge Toomin, sua sponte, reentered his August 3, 1995 order dismissing Coleman's first post-conviction petition. See People v. Coleman, No. 91-CR-837 (unpublished order). Judge Toomin informed Coleman of his action in a letter dated May 21, 1999. Judge Toomin stated that he had learned that the Circuit Court Clerk never provided Coleman with notice of the dismissal of his first post-conviction petition or notice of his right to appeal that dismissal.*fn1 Judge Toomin noted that the Clerk of the Circuit Court mailed Coleman the requisite notice on May 19, 1999.
Coleman filed a timely notice of appeal from Judge Toomin's May 17, 1999 order. The Illinois Appellate Court received the appeal and assigned it appellate court number 1-99-3867. On September 20, 2000, the Illinois Appellate Court dismissed Coleman's appeal for lack of jurisdiction, reasoning that the Circuit Court acted without jurisdiction when it re-entered, sua sponte, its August 3, 1995 order of Coleman's first post-conviction petition. See People v. Coleman, No. 1-99-3867 (unpublished order). It characterized the May 17, 1999 order as a "nullity as to its effect in tolling the time within which the defendant could appeal the dismissal of his original petition." Id. Coleman then filed a petition for leave to appeal with the Illinois Supreme Court, which was denied on June 29, 2001. On June 27, 2002, Coleman filed the petition for writ of habeas corpus presently before us, which sets forth the following claims: (1) denial of his due process right of notice to appeal his first post-conviction petition; (2) trial court error in denying Coleman's motion in limine to exclude certain evidence at his trial; (3) denial of effective assistance of trial counsel; and (4) denial of effective assistance of appellate counsel.
A. Statute of Limitations and Equitable Tolling
Respondent argues that Coleman'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). AEDPA became effective on April 24, 1996, and imposed a one year statute of limitations for filing § 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 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;
(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 subsection.
Once Coleman's conviction "became final by the conclusion of direct review or the expiration of the time for seeking such review," the one-year period of limitation for habeas corpus proceedings began to run. 28 U.S.C. § 2244(d)(1)(A). The parties agree that Coleman's conviction was final prior to the enactment date of AEDPA. Thus, Coleman had one year from the effective date of that statute — April 26, 1996 — to file his § 2254 petition. See Newell v. Hanks, 283 F.3d 827
, 833 (7th Cir. 2002). The period of limitation continues to toll, however, while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The Seventh Circuit has explained that "whether a petition is `properly filed' depends on state law, so that if a state court accepts and entertains it on the merits it has been `properly filed' but that if the state court rejects it as procedurally irregular it has not been properly filed." Fernandez v. Sternes, 227 F.3d 977
, 978 (7th Cir. 2000).
We address the state court disposition of Coleman's two post-conviction petitions in reverse order. On November 9, 1995, the Circuit Court of Cook County dismissed Coleman's second post-conviction petition as frivolous, without considering it on the merits. See People v. Coleman, No. 91-CR-837 (unpublished order). The Illinois Appellate Court did not disturb the trial court's ruling ...