United States District Court, N.D. Illinois
May 13, 2004.
UNITED STATES OF AMERICA ex rel. RUSSELL
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MOTION TO DISMISS
Petitioner, Earnest Russell, was found guilty of first degree murder,
attempted first degree murder, armed violence, aggravated discharge of a
firearm, and aggravated battery in the Circuit Court of Cook County on
April 22, 1997 and was sentenced to concurrent terms of imprisonment of
45 years for the first degree murder, 15 years for the aggravated
discharge of a firearm, and 15 years for aggravated battery. Petitioner
appealed his sentence to the Illinois Appellate Court, which, on February
19, 1999, affirmed his conviction. Petitioner did not seek leave to
appeal that decision.
On March 20, 2001, Petitioner filed a pro se petition for
post-conviction relief in the Circuit Court of Cook County. His appeal was
dismissed on May 9, 2001. The Appellate Court affirmed this dismissal and
Petitioner sought leave to appeal from the Illinois Supreme Court. The
Illinois Supreme Court denied his petition in an order issued February
5, 2003. This mandate was issued to the Appellate Court on February 27,
2003, after allowing for the 21 day rehearing period.
On February 27, 2004, Petitioner filed his petition for writ of habeas
corpus, claiming he received ineffective assistance of counsel.
Respondent now moves to dismiss this petition as untimely. The
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides
for a one year statute of limitations for writ of habeas corpus
applications. The time limit begins running "the date on which the
judgment became final by the conclusion of direct review."
28 U.S.C. § 2244(d)(1)(A).
In this case, the statute of limitations began to run on February 19,
2001, the date on which Petitioner's conviction was affirmed by the
Appellate Court. However, "the time during which a properly filed
application for State post-conviction . . . review . . . is pending shall
not be counted toward any period of limitation." 28 U.S.C. § 2244(d)(2).
Under the AEDPA, the statute of limitations ran until March 20, 2001, the
date on which Petitioner first filed for post-conviction review.
Petitioner's delay in filing for post-conviction review allowed the time
to run for over two years, making his petition for writ of habeas corpus
Even assuming that the statute was tolled continuously until the
Illinois Supreme Court's denial of leave to appeal the post-conviction
rulings on February 5, 2003, this petition would still be barred by the
statute of limitations. The judgment of an Illinois court becomes
effective the day on which it is entered. Wilson v. Battles, 302 F.3d 745,
747 (7th Cir. 2002). Petitioner did not seek habeas review until February
27, 2004-twenty-two days after the Illinois Supreme Court's final
disposition of this matter. The fact that the denial was not issued to
the Appellate Court until February 27, 2003 to allow time for rehearing
is irrelevant. Id. This is particularly true because it is Petitioner who
decides whether to seek a rehearing. Since the Petitioner did not seek a
rehearing, he should have understood the Illinois Supreme Court's order
to be final on the day it was issued. Accordingly, I find that
Petitioner's Habeas petition is untimely.
Respondent's Motion to Dismiss Petitioner's petition for Writ of Habeas
Corpus is GRANTED.
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