The opinion of the court was delivered by: James Zagel, District Judge
Petitioner Gustavo Gonzalez is serving a 20-year sentence in the Illinois Department of Corrections following his conviction by a Cook County jury for delivery of a controlled substance. Following his conviction, Gonzalez filed a time notice of appeal. The Illinois Appellate Court affirmed the conviction and sentence on December 30, 1999. Gonzalez did not seek timely leave to appeal to the Illinois Supreme Court, but on June 15, 2001, he filed a motion for leave to file a late petition for leave to appeal (PLA), which was denied on September 28, 2001.
On June 30, 2000, Gonzalez filed a petition for post-conviction relief in the Illinois Circuit Court, which was dismissed on September 20, 2000. Gonzalez did not file a timely notice of appeal, but on May 3, 2001, he filed a late notice of appeal. Gonzalez was allowed to file this late notice of appeal, and his appeal was considered but denied by the Court. Subsequently, he filed a PLA in the Illinois Supreme Court, but leave to appeal was denied on October 2, 2002. Gonzalez then filed the instant petition for writ of habeas corpus on November 18, 2002.
This petition is dismissed because Gonzalez has failed to file it before the expiration of the one-year statute of limitations period for habeas corpus petitions pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254. Because subsections B, C or D of § 2254(1) do not apply to this case, Gonzalez's one year on the habeas clock began upon the conclusion of his direct appeal. 28 U.S.C. § 2254(1) (A).
The time from when the Illinois Appellate Court ruled in Gonzalez's direct appeal on December 30, 1999, until he filed his state post-conviction petition on June 30, 2000 was 182 days. This time counts against the federal habeas clock. Had Gonzalez filed a timely PLA to the Illinois Supreme Court, he would be granted credit for the 90 days after the denial of that petition during which he could have brought a petition for writ of certiorari in the United States Supreme Court. Andersen v. Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002). However, Gonzalez never had an appeal or even a request for such an appeal before the Illinois Supreme Court. See Fernandez v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000). With regard to a state judgment, a party can petition for a writ of certiorari only from the ruling of the highest court of the state on the merits or the denial of discretionary review by the highest court of the state. United States Supreme Court Rule 13(1). The Illinois Supreme Court took neither of these actions. It merely ruled, based upon state law, that Petitioner's PLA would not be considered at all because it was untimely.
Also, the mere fact that Gonzalez requested the opportunity to file a late PLA did not buy him any extra time. In Fernandez, a petitioner filed a motion for permission to file an untimely PLA from the ruling of the appellate court in his post-conviction appeal, but the Illinois Supreme Court — considering the motion as a PLA — denied it. Id. at 979. In ruling of the question of whether that petitioner's federal habeas petition was timely filed, the Seventh Circuit held that the federal habeas clock was tolled pursuant to § 2244(d) (2) only for the period from when the motion to file a late PLA was filed and when the Illinois Supreme Court denied leave to appeal. Id. at 980-81. Here, unlike in Fernandez, the exact question is when the habeas clock began to tick as opposed to what period that clock was tolled. However, the practical result is the same. The petitioner in Fernandez was not given credit for the time between the ruling of the appellate court and his motion to file an untimely PLA, which was essentially granted when the Illinois Supreme Court considered it as a PLA. It is all the more clear that Gonzalez is not entitled to have any of this time excluded from the one year habeas limit because, unlike in Fernandez, the motion to file a late PLA was not granted and thus the PLA was not considered.
Therefore, Gonzalez's direct appeal concluded with the ruling of the appellate court on direct appeal. He is not entitled to a 90-day credit or delay in starting the clock from either the date of the decision of the appellate court or the Supreme Court's refusal to allow a late PLA. As a result, the entire 182 days between the ruling of the appellate court in his direct appeal and the date on which he mailed his post-conviction petition count against the one-year habeas time limit.
From the time the Illinois Circuit Court dismissed Gonzalez's post-conviction petition on September 20, 2000 until he filed his late notice of appeal in the action on May 3, 2001, was 226 days. The federal habeas clock is not tolled for the period of time between when his post-conviction petition was dismissed and when he filed his late notice of appeal.
From the time the Illinois Supreme Court denied leave to appeal in Gonzalez's post-conviction appeal on October 2, 2002 until he mailed the instant habeas petition on November 18, 2002 was 47 days.
Thus, the federal habeas clock ran for 455 days between the conclusion of Gonzalez's direct appeal and when he filed his habeas petition. And although the Seventh Circuit left open the possibility in Fernandez that it might later rule that the one year limitation period should be tolled during the periods in which petitioners could have filed a timely PLA, even if Gonzalez is given credit for both of the periods in which he could have filed a timely PLA — 21 days in his direct appeal and 30 days for his post-conviction petition dismissal — he has still lost 404 days, well over the one year limit. Therefore, the instant petition is untimely and is hereby dismissed.
For the reasons above, Snyder's Motion to Dismiss is GRANTED.
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