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February 13, 2004.

United States ex rel. JOSEPH ARRIETA, Petitioner,
KENNETH R. BRILEY, Warden, Respondent

The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge


Petitioner Joseph Arrieta, a prisoner in the custody of the Illinois Department of Corrections, filed this petition for habeas corpus under 28 U.S.C. § 2254. Because the petition is untimely and petitioner's previous habeas corpus proceeding cannot be reopened, the petition must be dismissed.

Petitioner challenges his conviction for murder entered January 31, 1996, in the Circuit Court of DuPage County, Illinois, and affirmed by the Illinois Appellate Court on February 28, 1997. After the Illinois Supreme Court denied leave to appeal on June 4, 1997, petitioner filed a post-conviction petition on September 18, 1997. The post-conviction petition was dismissed December 15, 1997, and the Illinois Appellate Court affirmed the dismissal on December 18, 1998. Petitioner did not seek leave to appeal to the Illinois Supreme Court at that time, doubtless in reliance on Boerckel v. O'Sullivan, 135 F.3d 1194 (7th Cir. 1998), subsequently reversed by the Supreme Court in O'Sullivan v. Boerckel, 526 U.S. 838 (1999). 1999.

  On June 23, 1999, petitioner filed a timely habeas corpus petition in this court, U.S. ex rel. Arrieta v. Page, No. 99 C 4219. However, before the state's response was received, petitioner moved for a stay of proceedings while he sought leave to file a late petition for leave to appeal to the Illinois Supreme Court to cure the procedural default that O'Sullivan v. Boerckel had held would result from his failure to seek review in that court. This court granted the motion. Page 2

  On November 4, 1999, after the Illinois Supreme Court denied leave to file a late petition for leave to appeal, petitioner moved to reinstate the habeas corpus action. On September 28, 2000, petitioner sought leave to file an amended petition, but before the court had ruled, on October 16, 2000, petitioner moved to dismiss the petition without prejudice, stating that "the instant Motion is filed in good faith, to allow Plaintiff opportunity to present the claims herein to the proper Illinois state Court. To ensure compliance with exhaustion requirements." The court granted the motion and dismissed the petition without prejudice on October 20, 2000, "pursuant to FRCP 41(a)(1)." No separate judgment was entered, but it was clear that no further proceedings were anticipated.

  Three years later, on November 10, 2003, petitioner filed the present habeas petition, together with a "Motion to Reinstate Habeas Corpus Petition." However, the petition was not captioned as an amended petition, neither the motion nor the petition bore the case number of the prior habeas action (the case number was left blank), and petitioner paid the $5.00 filing fee for a new petition. In an order dated December 2, 2003, the court denied petitioner's motion to reinstate, and directed petitioner to show cause why the present petition should not be dismissed as untimely.

  In response, petitioner stated that he had filed the motion to dismiss the first petition without prejudice because he had been told by jailhouse lawyers that he could not have a federal habeas petition pending while seeking relief in state court. Petitioner states that he filed a motion for relief from judgment hi state court on September 18, 2000, but withdrew it and filed a second post-conviction petition on October 31, 2000, based on the U.S. Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000). Although the Illinois courts denied relief, this second post-conviction proceeding remained pending until the Illinois Supreme Court denied petitioner leave to appeal on October 7, 2003.

  The present petition is clearly untimely. The 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") enacted a one-year limitations period for federal habeas corpus applications that normally begins to run when the petitioner can no longer seek direct review of his conviction. 28 U.S.C. § 2244(d)(1)(A). This would have occurred September 2, 1997, 90 days after the Illinois Supreme Court denied petitioner leave to appeal from the Appellate Court's Page 3 affirmance of his conviction, when petitioner could no longer seek review by the United States Supreme Court. Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002).

  The running of the limitations period is interrupted, however, while a "properly filed application for State post-conviction or other collateral review" is pending. 28 U.S.C. § 2244(d)(2). The limitations clock was stopped after 12 days on September 18, 1997, when petitioner filed his first post-conviction petition, but it resumed running when the Illinois Appellate Court affirmed the dismissal of petitioner's post-conviction petition on December 18, 1998. Because the Illinois Supreme Court denied petitioner's request to file a late petition for leave to appeal, petitioner's first state post-conviction proceeding was never "pending" after that date, see Femandez v. Sternes, 227 F.3d 977, 979 (7th Cir. 2000); Baines v. Briley, No. 00 C 7585, 2001 WL 1195826 (N.D.Ill, 2001), and the limitations period expired December 6, 1999.

  At the time the limitations period expired, petitioner's first federal habeas petition was on file, and it remained pending more than ten months thereafter. Nevertheless, the prior habeas petition has no effect on the running of the limitations period under § 2244(d)(2), because a federal habeas petition is not an "application for State post-conviction or other collateral review." Duncan v. Walker, 533 U.S. 167, 172 (2001). Petitioner's second state-court post-conviction petition also had no effect on the running of the imitations period. Although treated by the Illinois courts as "properly filed," it was filed after the federal habeas limitations period had already expired. A properly-filed post-conviction proceeding stops the limitations clock, but cannot restart it.

  When a federal habeas petitioner asserts a constitutional right "newly recognized by the [United States] Supreme Court and made retroactively applicable to cases on collateral review," the limitations period is restarted on the date the Supreme Court initially recognizes that right. 28 U.S.C. § 2244(d)(1)(C). Petitioner's second post-conviction proceeding asserted a constitutional right newly recognized by the Supreme Court in Apprendi v. New Jersey. However, neither in its opinion in Apprendi nor subsequently has the Supreme Court held that the rule of Apprendi is retroactively applicable on collateral review. The Court of Appeals for the Seventh Circuit, which this court must follow, has held it is not. Curtis v. United States, 294 F.3d 841, 844 (7th Cir. 2002). Petitioner's Apprendi claim consequently does not affect the timeliness of this habeas petition, which is untimely by almost four years. Page 4

  Petitioner's situation was not unique. Where a habeas petitioner has sought to pursue unexhausted claims in state court but it is questionable whether a refiled habeas petition would be timely, district courts have, at the petitioner's request, stayed the habeas action or dismissed it with leave to reinstate following the termination of the state-court proceedings. See, e.g., Woods v. Gillespie, 26 F. Supp.2d 1093 (C.D. Ill. 1998); Parisi v. Cooper, 961 F. Supp. 1247 (N.D. Ill. 1997). Dismissal with leave to reinstate is functionally equivalent to a stay, as it does not act as a final judgment until the time for reinstatement is past. Baltimore and Ohio Chicago Terminal Railway Co. v. Wisconsin Central Ltd., 154 F.3d 404, 407-408 (7th Cir. 1998).

  Here, however, when petitioner asked the court to dismiss his prior habeas petition, leave to reinstate it was neither requested nor granted.Petitioner received what he asked for, a dismissal without prejudice. This acted as a final judgment, since this court had clearly finished with the case. Hill v. Potter, 352 F.3d 1142, 144 (7th Cir. 2003). Dismissal without prejudice permits refiling — but only within the original limitations period. For limitations purposes, a suit dismissed without prejudice is treated as if it never had been filed; the limitations period is deemed to have continued running from the tune the cause of action originally accrued. Newell v. Hanks, 283 F.3d 827, 834 (7th Cir. 2002). But when petitioner moved for dismissal, the limitations period had already expired. Petitioner had either failed to calculate the limitations period before filing his motion, or mistakenly assumed that new post-conviction proceedings would restart the limitations clock.

  The present petition cannot be considered unless the court can vacate the judgment in the prior proceeding, which by its terms did not permit reinstatement, and treat the new petition as an amended one. The Federal Rules of Civil Procedure apply in habeas proceedings to the extent they are not inconsistent with the specialized Rules Governing Section 2254 Cases. Newell, 283 F.3d at 835. The specialized ...

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