The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Pending before the Court is Terrance Pickens' petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, Respondent has moved to
dismiss the petition as untimely pursuant to 28 U.S.C. § 2244(d)(1).
For the following reasons, the Court grants Respondent's motion to
dismiss Pickens' petition for a writ of habeas corpus on the ground that
the petition is untimely,
On April 18, 1997, Petitioner pleaded guilty to one count of first
degree murder in the Circuit Court of Cook County and was sentenced to a
filly-year prison term. People v. Pickens, No, 95 CR 24581 (Apr,
18, 1997), Petitioner did not file a direct appeal following his guilty
plea and sentence. (Pet, Habeas at 2.)
On January 21, 1999, Petitioner filed a post-conviction petition in the
Circuit Court of Cook County, which, on January 20, 2000, was dismissed.
(Id. at 3.) Petitioner appealed, and on February 5, 2002, the Illinois
Appellate Court affirmed the trial court's dismissal order, (Id.)
On June 17, 2002, Petitioner filed a petition for leave to appeal to
the Illinois Supreme Court, which was denied on October 2, 2002, (Id.) On
September 12, 2003, Pickens' petition for writ of habeas corpus was
received by the Clerk of the U.S. District Court for the Northern
District of Illinois. (Id. at 1.)
Respondent has moved to dismiss Petitioner's petition solely on the
grounds that the petition is barred by the statute of limitations.
Pursuant to 28 U.S.C. § 2244(d)(1), "[a] 1-year period of limitation
shall apply to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court." The time begins to
run from the latest of certain categories of dates, only one of which
arguably applies in the instant case, i.e., the date the state court
judgment became final by the conclusion of direct review or the
expiration of time for seeking such review. 28 U.S.C. § 2244(d)(I)(A).
As stated above, Petitioner did not file a direct appeal following his
guilty plea and sentence. The time for direct review (i.e., the filing of
a notice of appeal to the Illinois Appellate Court) expired on May 18,
1997, 30 days after April 18, 1997, the date on which Petitioner pleaded
guilty. See ILL. S. CT. R. 604(d). Respondent argues that section
2244(d)(1)'s one-year limitations period began on May 18, 1997, and
hence, Petitioner's right to petition for writ of habeas corpus expired
on May 18, 1998. Because Petitioner did not file his petition until
September 12, 2003, Respondent argues that Pickens' petition is
time-barred. The Court agrees.
The plain language of section 2244(d)(1)(A) provides for a one-year
limitation period, and the clock started ticking on May 18, 1997. The
clock kept ticking and time ran out before Petitioner filed his
post-conviction petition. Accordingly, 28 U.S.C. § 2244(d)(2), which
provides that "[t]he time during which a properly filed application
for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any
period of limitation under this subsection" does not come into play
because the one-year statute of limitation had already expired before
Petitioner filed his post-conviction petition.
In Johnson v. McCaughtry, prior to his filing of his habeas corpus
petition, a petitioner lodged two improperly filed post-conviction
petitions and then finally brought a properly filed post-conviction
petition arguing ineffective assistance of trial and appellate counsel
which was addressed by the state courts on the merits. 265 F.3d 559,
564-65 (7th Cir. 2001), cert. denied, 535 U.S. 937 (2002). The Seventh
Circuit rejected petitioner's argument that because the state court
eventually reached the merits of the third and the only properly filed
post-conviction petition, the statute of limitation should toll all of the
intervening time between the start of the limitation period and the
filing of his third properly filed post-conviction petition. Id.
Bound by the Johnson court's holding, this Court holds that Pickens'
properly filed post-conviction petition, which he filed 612 days after the
beginning of the one-year limitation period, does not serve to toll all
of the intervening lime between the start of the limitation period and
the filing of his post-conviction petition in which he argued ineffective
assistance of trial counsel. As the Johnson court stated: "Under this
rationale, a petitioner could file a petition years after the limitations
period expired, so long as the state court eventually entertained it on
its merits. This would allow a petitioner to successfully circumvent the
statute of limitations period." Id. at 564, If this Court were to toll
the intervening time between May 18, 1997, the date marking the
expiration of the time to seek direct review, and January 21, 1999, the
date on which his post-conviction petition was properly filed, it would
be allowing petitioner to circumvent the one-year
statute of limitation period. This it clearly cannot do.
Accordingly, because 612 days elapsed between the date on which the
time for seeking direct review expired and the filing of Pickens'
properly filed post-conviction petition and roughly 344 days elapsed
between the date on which the Supreme Court of Illinois denied his
petition for leave to appeal the denial of his post-conviction petition
and date of his filing of his habeas corpus petition, totaling 956 days,
the Court holds that the instant petition must be dismissed as untimely.
For the above reasons, the Court grants Respondent's motion to dismiss
on the basis of untimeliness. ...