The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
*fn1 Charles L. Hinsley has replaced Eugene McAdory as Warden at
the Menard Correctional Center and is thus the proper respondent
in this habeas action. See Rule 2(a) of the Rules Governing
Habeas Corpus cases under 28 U.S.C. § 2254. This court,
therefore, hereby substitutes Hinsley as the respondent. See Fed.
R. Civ. P. 25(d)(1).
MEMORANDUM OPINION AND ORDER
On January 30, 1997, petitioner, Tyrone Delaney ("Delaney"),
pled guilty to first-degree murder in the Circuit Court of Cook
County, Illinois. The court sentenced him to seventy years
imprisonment. On January 27, 2004, Delaney filed this petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging that Illinois' extended term statute, under which he was
sentenced, is unconstitutional. Respondent has filed a motion to
dismiss Delaney's petition as time-barred under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). For the reasons
stated below, the motion is granted. PROCEDURAL HISTORY
After being sentenced by the Circuit Court, Delaney appealed
the length of the sentence to the Illinois Appellate Court, which
affirmed the judgment of the Circuit Court on June 30, 1998.
Pursuant to Illinois Supreme Court Rule 315(b), Delaney had 21
days, until July 12, 1998, to file a petition for leave to appeal
to the Illinois Supreme Court. He did not. He did file a pro se
petition for relief of judgment with the Circuit Court of Cook
County on October 5, 2000,*fn2 which that court dismissed on
November 15, 2000. Delaney appealed the dismissal of the petition
to the Illinois Appellate Court on December 18, 2000 and that
court affirmed the dismissal on March 29, 2002. The Illinois
Supreme Court denied leave to appeal the order of the Appellate
Court on October 6, 2003.
AEDPA establishes a one-year statute of limitations applicable
to federal habeas corpus petitions filed under 28 U.S.C. § 2254.
AEDPA provides that the limitation period shall run from "the
date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review." 28 U.S.C. § 2244(d)(1)(A). Although section 2244(d)(2)
of the AEDPA does provide that the period of limitation in
section 2244(d)(1) will be tolled while any properly filed
post-conviction or other collateral review is pending, the period
of limitations does not toll during the period after the
conclusion of direct review and prior to any ultimate collateral
review if no petition for collateral review has actually been
filed yet. See Fernandez v. Sternes, 227 F.3d 977, 980 (7th
Cir. 2000). Delaney waited 811 days after the last date he could
have filed a petition for leave to appeal his conviction to the
Illinois Supreme Court, July 12, 1998, before he filed his post-conviction
petition in the Circuit Court of Cook County on September 30,
2000. Consequently, his right to file a petition for writ of
habeas corpus with this court ended on July 12, 1999, 446 days
prior to the date he filed his post-conviction petition with the
Circuit Court of Cook County.
In his response to respondent's motion to dismiss the petition
as time-barred, Delaney goes to great lengths to argue the merits
of his petition. However, he does not present an argument
opposing the motion except insofar as he states that he does not
feel the AEDPA is applicable to his situation because he filed
his first petition for post-conviction relief pursuant to
Illinois statute 735 ILCS 5/2-1401, which allows an indefinite
time period for challenging a void order or judgment. (Pet.
Response. p. 2.) Delaney does not offer any legal rationale for
applying state law time limits, rather than those mandated by
AEDPA, to a petition for a writ of habeas corpus filed in a
federal district court, and the court finds no grounds for doing
For the above reason this court grants respondent's motion to
dismiss Delaney's petition ...