United States District Court, N.D. Illinois, Eastern Division
July 1, 2004.
UNITED STATES OF AMERICA ex rel. BENZANTA VANZANT, Petitioner,
TERRY McCANN, Warden, Shawnee Correctional Center, Respondent.
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, Benzanta Vanzant ("Vanzant"), has petitioned this
court for a writ of habeas corpus under 28 U.S.C. § 2254. Before
the court is respondent's motion to dismiss the petition as
untimely pursuant to 28 U.S.C. § 2244(d)(1), enacted as part of
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"). For the reasons set forth below, the motion is
On May 1, 1981, following a jury trial in the Circuit Court of
Cook County, Illinois, Vanzant was convicted of murder and armed
robbery and was sentenced to concurrent prison terms of 80 years
and 30 years, respectively. Vanzant appealed his conviction and
sentence to the Illinois Appellate Court, where he raised two
claims for review: (1) that he was prejudiced by evidence
presented by the state proving an alibi for the person petitioner
identified as the killer; and (2) that he was improperly
sentenced to an extended term for murder. In an unpublished order
dated October 26, 1982, the appellate court affirmed Vanzant's
conviction and sentences. Vanzant failed to file a petition for leave to appeal the
appellate court's decision to the Illinois Supreme Court. Vanzant
then filed the same post-conviction petition before two different
Cook County Circuit Court judges. The judges dismissed both of
the petitions. Vanzant then filed separate appeals from each
dismissal. In both cases, the Illinois Appellate court affirmed
the circuit court's judgment. Vanzant failed to file a petition
for leave to appeal from either of the appellate court orders
affirming the denial of post-conviction relief.
On November 7, 1997, Vanzant filed a state habeas corpus
petition before the Circuit Court of Cook County. The circuit
court dismissed the petition as patently without merit on January
13, 1998. Vanzant appealed, and on December 31, 1998, the
appellate court affirmed the judgment of the circuit court
denying habeas relief. On August 18, 1999, the appellate court
denied Vanzant's petition for rehearing. On September 28, 1999,
Vanzant filed a petition for leave to appeal, which was denied by
the Illinois Supreme Court on December 1, 1999.
Vanzant subsequently filed a third post-conviction petition in
the Circuit Court of Cook County, which was summarily dismissed
on February 6, 2001. Vanzant appealed. On January 29, 2002, the
Illinois Appellate Court affirmed the summary dismissal of the
third post-conviction petition, and on September 9, 2002, the
Illinois Supreme Court denied Vanzant's petition for leave to
appeal. Vanzant filed the present habeas corpus petition on March
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
(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; (B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the
claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2244(d)(1). AEDPA also provides for tolling of the
limitations period for the time during which a properly filed
application for state post-conviction or other collateral review
is pending. 28 U.S.C. § 2244(d)(2).
Subsequent to the enactment of AEDPA, the Seventh Circuit
recognized a one-year "grace period" for purposes of the
application of § 2244(d)(1). Lindh v. Murphy, 96 F.3d 856,
866 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320
(1997). Thus, a habeas petition filed by a petitioner whose
conviction became final before AEDPA was enacted on April 24,
1996, is not time-barred if it was filed before April 24, 1997.
Vanzant's petition alleges that his sentence is
unconstitutional under the new rule of law announced by the
Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Thus, he argues that § 2244(d)(1)(C) applies here and thus that
the statute of limitations on his habeas petition began to run in
June, 2000, when the Court decided Apprendi. However, §
2244(d)(1)(C) only applies here if the new rule announced in
Apprendi is retroactively applicable to cases on collateral
review. The Seventh Circuit has held that it is not. Curtis v.
United States, 294 F.3d 841, 842 (7th Cir. 2002); see also
Rodriguez v. United States, 286 F.3d 972, 981 (7th Cir.
2002). Thus, § 2244(d)(1)(C) is inapplicable. Vanzant's conviction was final 21 days after his convictions
and sentences were affirmed on direct appeal by the Illinois
Appellate Court, since he failed to file a petition for leave to
appeal to the Illinois Supreme Court. Therefore, his convictions
were final by November 16, 1982, long before the enactment of
AEDPA. Once AEDPA was enacted, Vanzant had one year to file a
federal habeas petition. Lindh, 96 F.3d at 866. He failed to do
so. Moreover, during the year after the enactment of AEDPA,
Vanzant was not pursuing any post-conviction remedies in state
court which may have served to toll the limitations period
pursuant to § 2244(d)(2). Thus, his petition is time-barred.
Vanzant's contention that respondent has waived any potential
timeliness challenge by failing to address the issue in response
to Vanzant's state post-conviction petition is unavailing. The
question of whether a state post-conviction petition is timely
filed pursuant to state statutory guidelines has no bearing on
whether a federal petition for a writ of habeas corpus is timely
filed pursuant to AEDPA.
For the reasons stated above, respondent's motion to dismiss is
granted [#21]. Case is terminated.
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