United States District Court, N.D. Illinois
March 22, 2004.
United States of America ex rel. WILLIE LEE ANDREWS, Petitioner
EUGENE McADORY, Warden, Menard Correctional Center, Respondent
The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Willie Andrews 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, respondent's motion to dismiss
Andrews' petition as time-barred is granted.
On November 8, 1999, Andrews pled guilty to criminal sexual assault in
the Circuit Court of Will County, and he was sentenced the same day to
nine years in prison. His conviction was entered on a blind plea of
guilty. Illinois Supreme Court Rule 605(b)(2) requires that to pursue a
direct appeal from a guilty plea, a defendant must file a motion in the
trial court to withdraw his plea within thirty days of the date on which
sentence is imposed. Andrews filed a motion to vacate his plea, but not
until July 1, 2002, nearly three years after he was sentenced.
The trial court denied this motion on July 5, 2002.
On February 20, 2001, Andrews filed in the state trial court a petition
for a writ of habeas corpus pursuant to 735 ILCS 5/10-102. The petition
was denied on June 8, 2001. Andrews did not appeal this dismissal. On
June 11, 2001, Andrews filed a motion for relief from judgment in the
state trial court. The trial court construed this as a petition for
post-conviction relief and dismissed it on June 26, 2001. Andrews
appealed, and the appellate court affirmed the dismissal on July 3, 2002,
but vacated the trial court's order imposing court costs against Andrews.
Andrews did not file a petition for leave to appeal this decision to the
Illinois Supreme Court. As a result, the appellate court's decision
became final on July 24, 2002, as Illinois law requires that a petition
for leave to appeal must be filed within twenty-one days.
On January 9, 2003, Andrews filed a petition for mandamus relief in the
Illinois Supreme Court, which the court denied on March 20, 2003. Then on
May 6, 2003, he filed a motion before the Illinois Supreme Court for
leave to file an original petition for a writ of habeas corpus in that
court. The motion was denied on September 23, 2003. On September 29,
2003, Andrews filed the present federal habeas corpus petition.
AEDPA, established a one-year statute of limitations applicable to
federal habeas corpus petitions filed under 28 U.S.C. § 2254. The
statute provides that:
(1) A one-year period of limitation shall apply
to an application for writ of habeas corpus by a
person in custody pursuant to the judgment of a
state court. The limitation period shall run from
the latest of:
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review; . . .
(2) the time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
claim is pending shall not be counted toward any
period of limitation under this subsection.
28 U.S.C. § 2244(d)(1) & 2.
Under Illinois law, Andrews had thirty days from November 8, 1999, the
date on which he was sentenced, to withdraw his guilty plea. He did not
do so within that time period, and thus his conviction became final on
December 8, 1999. Andrews filed the present habeas corpus petition just
under four years later. Under § 2244(d)(2), the time after December
8, 1999 is tolled during periods in which he had a properly filed
application for collateral relief pending in state court. See Gendron
v. United States, 154 F.3d 672, 675 (7th Cir. 1998).
Andrews filed his first application for collateral relief in state
court on February 20, 2001, over fourteen months after his conviction
became final. This collateral attack was in the form of a petition for
writ of habeas corpus pursuant to 735 ILCS 5/10-102, which the state
trial court denied on June 8, 2001.*fn1 The fourteen month interval
before the state habeas petition was filed would appear to bar Andrews'
federal habeas petition. Andrews seems to argue, however, that the period
of limitations should be tolled because the state withheld exculpatory
DNA evidence from him and thus he had no plausible reason for withdrawing
his guilty plea within the twenty-one day time period.
We first review the procedural history of Andrews' case to put in
context his argument regarding why the statute should be considered
tolled. Andrews was charged with two counts of aggravated criminal sexual
assault and two parallel counts of criminal sexual assault. The
information filed against him alleged that he had forcible vaginal and
oral intercourse with Dorian Usher by threatening her with force. Police
reports reflect that Usher told the police that she was approached and
then followed by Andrews, who grabbed her from behind, put a sharp object
against her throat, and forced her to continue walking until they reached
a secluded area. Usher reported that Andrews then forced her to have oral
and vaginal intercourse and that he had ejaculated inside her. He then
allowed her to leave but followed her. She approached a building and
reported to a security guard standing outside that she had been raped, to
which Andrews stated, "Why [are] you telling them this?" The security
guard called the Joliet police, and Andrews was arrested. After he was
taken into custody, his penis was swabbed for possible evidence.
Andrews pled guilty to Count 3 of the information, which alleged that
he had placed his penis in Usher's vagina by the threat of force. In his
habeas corpus petition, Andrews asserts that he was innocent of this and
the other charges. He contends that Usher willingly traded oral sex for
drugs and denies that he had vaginal intercourse with her. He claims
Usher falsely accused him of sexual assault in a panic after her
boyfriend saw the two of them together. According to Andrews, he pled
guilty because his lawyer advised him that if convicted at trial he was
at risk of a sentence of as long as sixty years due to his prior criminal
Andrews alleges that at the time he pled guilty and was sentenced, the
prosecution had not produced evidence from DNA testing of the penile swab
and of evidence taken from Usher. Andrews says he did not receive this
evidence until May 6, 2002, when he obtained it following a Illinois
Freedom of Information Act request to the City of Joliet. The test
reports, which accompany Andrews' habeas corpus petition, reflect that
spermatozoa were found on vaginal and
rectal swabs taken from Usher and that the DNA profile from the material
on the rectal swab was consistent with that of Andrews (evidently no DNA
profile could be derived from the material on the vaginal swab). Another
report reflects that no vaginal secretions were found on the penile swab;
Andrews says this supports his assertion that he had only oral
intercourse with Usher and thus is exculpatory. Andrews says that when he
learned of the penile swab evidence, he moved to withdraw his guilty
plea, and he contends that none of the time through that date should count
against the one-year limitation in § 2244(d)(1).
Under AEDPA, the statute of limitations is equitably tolled in
extraordinary circumstances beyond the petitioner's control that
prevented him from filing his petition for writ of habeas corpus on time.
See, e.g., Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). Andrews'
allegation that the state withheld potentially exculpatory DNA evidence
from him might suffice to toll the statute. See Harris v. Hutchinson,
209 F.3d 325, 330 (4th Cir. 2000). The Court need not address this
issue, however, because even if we disregard the time that passed until
the dismissal of Andrews' post-conviction petition became final, more
than a year passed before he filed his federal habeas petition.
Specifically, fourteen months passed from the date the dismissal of
Andrews' post-conviction petition became final on July 24, 2002 until the
date he filed the present petition. Under § 2244(d)(2), the one-year
statute of limitations is tolled only during the pendency of "properly
filed application[s] for State post-conviction or other collateral review
with respect to the pertinent judgment." If either Andrews' state
mandamus petition filed on January 9, 2003, or his pleading captioned
Motion by Petitioner for Leave to File a Petition for Writ of Habeas
Corpus filed on May 6, 2003 fall within the scope of this provision, then
the present petition is
not time-barred. Neither of these filings, however, satisfy §
2244(d)(2)'s requirements. The former fails because it was not a petition
for collateral review. The latter fails because it was not a "properly
filed" petition for collateral review.
Andrews' state mandamus petition was not a collateral attack on his
conviction. A collateral attack for the purposes of § 2254 and § 2255 is
any motion or petition filed after the time for direct appeals has
expired and which requests relief from a criminal conviction or
sentence. See Romandine v. United States, 206 F.3d 731, 734-36 (7th Cir.
2000); see also Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998). Regardless of what title or caption is placed on the pleading, if
it amounts to an attack on the fact or duration of a prisoner's
confinement, then it is properly considered a collateral attack. See
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also United States v.
Evans, 224 F.3d 670, 674 (7th Cir. 2000). Andrews' mandamus petition,
though it asked the Illinois Supreme Court to order the state trial judge
to rule on his habeas petition which itself fell under § 2254, did not
itself request any relief from Andrews' criminal conviction or sentence.
In other words, the mandamus petition was not an attack on the fact or
duration of his confinement. See United States v. Campbell, 294 F.3d 824,
827-28 (7th Cir. 2002), citing Preiser v. Rodriguez, 411 U.S. 475, 484
(1973) (holding that defendant's motion for disclosure of jury matters
was not a collateral attack even though defendant planned on using the
information to support his collateral attack.) Thus Andrews' mandamus
petition did not toll § 2244(d)(1)'s statute of limitations.
Andrews' May 6, 2003 motion for leave to file a habeas petition in the
Illinois Supreme Court, though it amounted to a collateral attack on his
conviction, does not satisfy the "properly filed" requirement of §
2244(d)(2). A properly filed application is "one submitted according to
the state's procedural requirements." E.g., Lovasz v. Vaughn, 134 F.3d 146,
148 (3rd Cir. 1998). The May 6, 2003 motion essentially rehashed the same
arguments that Andrews had made in his post-conviction petition, whose
dismissal had been affirmed on appeal nearly ten months earlier, on July
3, 2002. If Andrews wanted to further pursue these claims in the Illinois
Supreme Court, the proper means to do so would have been by filing a
petition for leave to appeal in the Illinois Supreme Court within
twenty-one days of the Appellate Court's ruling, that is, by July 24,
2002. Were we to characterize the May 2003 motion for leave to file a
habeas petition asserting these same claims as a "properly filed"
collateral attack on his conviction for purposes of § 2244(d)(2), we
would essentially be allowing Andrews to circumvent Illinois' procedural
requirements regarding appeals. For these reasons, the Court finds that
this pleading was not a properly filed collateral attack and thus does
not toll the one year statute of limitations.
Finally, the Court has considered the possibility (not squarely argued
by Andrews) that the statute should be tolled due to his claimed actual
innocence. A showing of actual innocence can provide a means by which a
federal court may review a procedurally defaulted habeas corpus claim
under the "fundamental miscarriage of justice exception." See Coleman v.
Thompson, 501 U.S. 722, 749-50 (1991). This requires a showing that "a
constitutional violation has probably resulted in the conviction of one
who is actually innocent." See Murray v. Carrier, 477 U.S. 478, 496
(1986). At least one court has suggested that a claim of actual innocence
provides an exception to AEDPA's statute of limitations set forth in §
2244(d)(1)(A). See, e.g., Wyzkowski v. Dep't of Corr., 226 F.3d 1213,
1217-19 (11th Cir. 2000); but see David v. Hall, 318 F.3d 343, 347 (1st
Cir. 2003). But even if such an exception applied, it would not assist
Andrews. As the First Circuit pointed out in David, the law and
fundamental fairness do not require "actual
innocence" tolling for a prisoner who learns the basis for his claim of
innocence before the statute runs but still fails to file a habeas claim
within one year thereafter. Such is the case with Andrews. The Court has
already excluded from its consideration all the time that ran before he
was given the penile swab test results; yet he waited well over a year
after that date to file the present petition. He has provided the Court
with no basis to toll the statute for any part of the period after July
For the reasons stated above, respondent's motion to dismiss Andrews'
petition for a writ of habeas corpus as time-barred [Docket #10] is