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U.S. EX REL. RUSSELL v. MOTE

United States District Court, N.D. Illinois


May 13, 2004.

UNITED STATES OF AMERICA ex rel. RUSSELL
v.
MOTE

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 untimely.

  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.

20040513

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