The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Jamie Hauad has petitioned the Court for a writ of habeas corpus under
28 U.S.C. § 2254. Respondent argues that the Court should dismiss the
petition as untimely pursuant to 28 U.S.C. § 2244(d)(1)(A), enacted as
part of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). For the reasons set forth below, the Court dismisses Hauad's
petition without prejudice.
Jamie Hauad was convicted of murder and aggravated battery with a
firearm in connection with a May 1997 shooting, and received two
concurrent life imprisonment terms and a consecutive fifteen year term.
His conviction and sentence were affirmed on direct appeal, and his
petition for leave to appeal to the Illinois Supreme Court was denied.
Next he filed a petition for post-conviction relief in state court, which
was dismissed. The dismissal was affirmed on appeal, and the Illinois
Supreme Court denied leave to appeal.
On September 27, 2003, Hauad filed a pro se petition for habeas corpus
under 28 U.S.C. § 2254.
The petition seeks relief on six grounds: the state's failure to prove
guilt beyond reasonable doubt; ineffective assistance of trial counsel;
improper admission of evidence of gang involvement; ineffective assistance
of appellate counsel; denial of fair trial and due process; a claim of
actual innocence based on a recantation by a prosecution witness; and a
claim of ineffective assistance regarding a particular jury instruction.
The actual innocence claim is backed up by an affidavit from the only
surviving victim, Miguel Salgado, essentially stating that he falsely
testified that he saw Hauad at the scene of the crime, and that he in
fact had not seen him on the day the shooting took place. Salgado also
says he was never contacted by Hauad's defense counsel. This claim has
never been raised in state court, as Hauad contends that he was not able
to secure this affidavit until April 2003, well after the conclusion of
his state court proceedings.
Respondent has moved to dismiss Hauad's petition, arguing that it is
untimely. A habeas petitioner must file no later than one year after the
conclusion of his direct appeal or the expiration of the time for seeking
direct review, in this case February 27, 2001. See 28 U.S.C. § 2244(d)(1).
The time during which a properly filed state petition for collateral
review is pending does not count against the one year limitation. See
id. § 2244(6)(2). Hauad's post-conviction petition was filed on April
18, 2001, and his petition for leave to appeal as to the post-conviction
petition was denied on October 2, 2002. Because 49 days had passed before
Hauad filed the post-conviction petition, he had 316 days left after
October 2, 2002 to file this case, that is, until August 14, 2003.
As to all but one of his claims, Hauad identifies no proper basis for
tolling the statute of
limitations. The fact that he was incarcerated and proceeding pro se does
not excuse late filing, see Montenegro v. United States, 248 F.3d 585,
594 (7th Cir. 2001), overruled on other grounds, Ashley v. United
States, 266 F.3d 671 (7th Cir. 2001). And the Court disagrees with
Hauad's argument that the statute is unclear: it makes it very clear that
the clock starts running when the direct appeal is over with and stops
only if and when a properly filed collateral attack is pending. The only
potentially meritorious basis for tolling that Hauad identifies is that he
did not receive Salgado's affidavit until April 2003. But this would
not, we believe, extend the time for Hauad's five claims that are
completely unrelated to Salgado's affidavit, as four months remained on
the clock once the affidavit had been secured.
On the other hand, the presence of the "actual innocence" claim points
us toward a resolution of the case, at least for the time being, other
than dismissal with prejudice. That particular claim is raised for the
first time in the habeas petition, and thus Hauad has not yet exhausted
available state court remedies on the claim. As a general rule, when a
court receives a habeas petition containing both exhausted and
unexhausted claims, we are to dismiss the petition in its entirety,
"leaving the petitioner with the choice of returning to state court to
exhaust his claims or of amending or resubmitting the habeas petition to
present only exhausted claims to the district court." Rose v. Lundy,
455 U.S. 509, 510 (1982); see also Slack v. McDaniel, 529 U.S. 473, 487
(2000). This does not put Hauad at risk that his later re-filing of this
case will be hindered by the rigorous procedural requirements of
28 U.S.C. § 2244(b), which governs the filing of second or successive
habeas applications. After a dismissal of a mixed petition pursuant to
Rose v. Lundy, the subsequent refiling is not considered a second or
successive petition. Slack, 529 U.S. at 487.
There is a good chance that Hauad's sixth claim will not provide a
basis for federal habeas relief if and when Hauad brings it back to this
Court. See Herrera v. Collins, 506 U.S. 390 (1993) (claim of actual
innocence based on newly discovered evidence does not provide basis for
federal habeas relief). But there is at least some hint of a claim of
ineffective assistance of counsel contained in Salgado's affidavit, which
conceivably might permit a claim cognizable in federal court. Our
consideration of these issues, however, must await Hauad's efforts to
present the claim in state court should he chose to do so.
The Court therefore dismisses Hauad's petition without prejudice
pursuant to Rose v. Lundy. Accordingly, the Court makes no final
determination at this time regarding the timeliness of the petition.
Hauad may seek reinstatement of his petition without his actual innocence
claim, though he would run the risk that a future petition on this claim
will be disallowed. Alternatively, he may attempt to exhaust in state
court the claims arising from the Salgado affidavit, via a second post
conviction petition in a motion under 735 ILCS 5/2-1401. He may then
reinstate this petition in its entirety after completing the state
appellate process (which includes seeking leave to appeal to the Illinois
Supreme Court). Either way, the Court will not require him to file an
entirely new case; he may simply file a motion for reinstatement of the
For the foregoing reasons, the Court dismisses Hauad's petition ...