The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
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
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.
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
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,
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
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
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.
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 ...