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FELTON v. BOWEN

February 19, 2004.

THOMAS FELTON, Plaintiff,
v.
EDWIN R. BOWEN, Defendant



The opinion of the court was delivered by: CHARLES KOCORAS, District Judge

MEMORANDUM OPINION

This matter comes before the court on Respondent Edwin Bowen's ("Bowen") motion to dismiss the petition of Thomas Felton ("Felton") for a writ of habeas corpus. For the reasons set forth below, the motion is granted.

BACKGROUND

  Felton is currently a prisoner at the Centralia Correctional Center in Centralia, Illinois. As such, he is in the custody of Bowen, the facility's warden. On March 14, 1997, Felton was convicted, in the Circuit Court of Cook County, of home invasion, two counts of attempted murder, and three counts of aggravated criminal sexual assault. That same day, Felton was sentenced to two consecutive fifteen-year prison sentences for the attempted murder convictions, a concurrent ten-year sentence for the Page 2 home invasion conviction, and three concurrent twelve-year sentences for the sexual assault convictions, to be imposed consecutively to the sentences previously imposed. On May 7, 1999, the Illinois Appellate Court, First District, vacated two of Felton's three sexual assault convictions while affirming the remainder of the trial court's findings. Felton then filed a petition for leave to appeal with the Illinois Supreme Court, which was denied on October 6, 1999.

  On March 23, 2000, Felton petitioned the Cook County Circuit Court for post-conviction relief. Felton's petition alleged ineffective assistance of counsel in violation of the Constitution and Illinois State Constitution. The petition was dismissed on May 2, 2000, because, amongst other reasons, it was untimely filed under Illinois law. On June 14, 2002, the Illinois Appellate Court, First District, found that the Circuit Court did not err in dismissing the petition as untimely or for the other reasons cited. Felton then filed a petition for leave to appeal with the Illinois Supreme Court, which was denied on October 2, 2002.

  On August 14, 2003, Felton, who is proceeding pro se, filed the present petition for writ of habeas corpus. Felton's petition contains the following claims: (1) Ineffective assistance of counsel at the trial level because Felton's attorney was taking pain killers and muscle relaxers at trial; (2) ineffective assistance of appellate counsel because a different attorney failed to raise the issue of ineffective trial counsel Page 3 on appeal; (3) ineffective assistance of counsel at the post-conviction level because a third attorney failed to raise the issue of ineffective trial counsel at Felton's post-conviction petition hearing; and (4) the Circuit Court erred in dismissing Felton's post-conviction petition as untimely. Respondent Bowen moves to dismiss Felton's petition as being barred by the statute of limitations. 28 U.S.C. § 2244(d).

  LEGAL STANDARD

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a prisoner in state custody may petition a district court for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The AEDPA further dictates that a prisoner in state custody cannot be granted habeas relief "unless the state court decision `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Schaff v. Snyder, 190 F.3d 513, 521 (7th Cir. 1999) (quoting 28 U.S.C. § 2254(d)(1) & (2)). For a state court decision to be "contrary to" clearly established Federal law, it must be "substantially different" from relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405 (2000). This situation arises if the state court either applies a rule that contradicts the governing law as set forth by Page 4 the Supreme Court or confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and still arrives at a different result. Id. at 405-06. A state court decision involves an "unreasonable application" of clearly established Supreme Court law when it uses the correct legal rule but applies it in an objectively unreasonable manner. Id. at 409-10. An objectively unreasonable decision is one that lies "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002). With these considerations in mind we now turn to Felton's petition for writ of habeas corpus.

  DISCUSSION

  Before examining the merits of Felton's claims, we must first determine if his petition was filed in a timely manner. Respondent Bowen argues that Felton's habeas petition should be dismissed because it is time-barred by the statute of limitations. A state prisoner who seeks federal habeas corpus relief from a criminal conviction has one year from "the date on which the judgment became final by the conclusion of direct review or expiration of the time for seeking review" to file a petition. 28 U.S.C. § 2244(d)(1)(A); Gray v. Briley, 305 F.3d 777. The statute of limitations begins to run either (1) when all direct appeals in the state system are concluded, followed by either completion or denial of certiorari proceedings before the U.S. Supreme Court or (2) when, if certiorari was not sought, all direct criminal appeals in the state system are Page 5 concluded, followed by the expiration of the time allotted for filing a petition of writ to the Supreme Court. Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002). Under Supreme Court rules, a petition for writ of certiorari seeking review of a lower state court judgment that is subject to discretionary review by the state's highest court must be filed within ninety days following the state high court's denial of discretionary review. Sup.Ct. R. 13(1). Since the Illinois Supreme Court denied Felton's petition for leave to appeal on October 6, 1999, Felton had ninety days from that date to seek review from the U.S. Supreme Court, which he did not do. Therefore, for purposes of 28 U.S.C. § 2244(d)(1), the statute of limitations began to run for his present habeas petition on January 4, 2000, ninety days after his opportunity to seek federal Supreme Court review had ended. Felton did not file his current petition until August 14, 2003, over two-and-one-half-years later.

  Our inquiry into the timeliness of Felton's petition is not so easily answered due to the tolling provision of 28 U.S.C. § 2244(d)(2), which states that the one-year statute of limitations imposed by 28 U.S.C. § 2244(d)(1) "is tolled while a `properly filed' application for post-conviction review is pending in state court." Gray, 305 F.3d at 778. An application is "properly filed" under 28 U.S.C. § 2244(d)(2) if "its delivery and acceptance `are in compliance with the applicable laws and rules governing filings.'" Gray at 778-79 (quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)). On the Page 6 other hand, if an application for state court post-conviction relief is found to be untimely filed by the petitioned court, and the prisoner "cannot show cause and prejudice in connection with his failure to do so," then 28 U.S.C. § 2244(d)(2)'s tolling provision does not apply. Gray at 779.

  Felton filed a petition for post-conviction relief with the Circuit Court of Cook County on March 23, 2000. If found to have been properly filed, his petition would have tolled 28 U.S.C. § 2244(d)(1)'s statute of limitations, making his present petition timely.*fn1 This was not the case as the Circuit Court of Cook County denied Felton's petition as untimely under Illinois law.*fn2 At the time Felton filed for post-petition relief, the relevant statute provided that:

  No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court . . . or 3 years from the date of conviction, whichever is sooner, unless the ...


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