United States District Court, N.D. Illinois, Eastern Division
July 15, 2004.
ROBERT SMITH, Plaintiff,
JERRY L. STERNES, Defendant.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Robert Smith (hereinafter, "Smith"),*fn1 pro
se, filed a 28 U.S.C. § 2254 Petition for relief from his State
of Illinois criminal sentence. Respondent Jerry L. Sternes
(hereinafter, "Sternes") now moves to dismiss Smith's petition on
the grounds that it is untimely. In his "response" to Sternes'
motion, Smith did not substantively reply to the legal arguments
put forth by Sternes. Instead, Smith merely made his own motion
for appointment of counsel.
Smith was convicted in the circuit court of Cook County of
aggravated discharge of a firearm, and sentenced as a Class X
offender to 28 years of prison. On appeal, the Illinois Appellate
Court affirmed Smith's conviction. Smith then sought leave to
appeal to the Illinois Supreme Court, which denied Smith's
request on January 29, 2001. Smith's conviction became final 90 days
later, on April 29, 2001, when the time expired for Smith to
petition for writ of certiorari to the Supreme Court. On August
1, 2001, Smith filed a state post-conviction petition for relief.
Proceedings on this petition continued until February 3, 2003,
when the Illinois Supreme Court denied his petition for leave to
appeal. On January 22, 2004, Smith filed his present § 2254
Under the Antiterrorism and Effective Death Penalty Act (the
"AEDPA"), 28 U.S.C. § 2244(d), state prisoners must file their §
2254 federal habeas corpus petitions within one year exhausting
all available relief upon direct review. Within the Seventh
Circuit, this includes the 90-day window a prisoner has to file
for writ of certiorari to the Supreme Court, even if he elects
not to file such an appeal. Anderson v. Litscher,
281 F.3d 672-675 (7th Cir. 2002). Therefore, Smith's statute of
limitations did not start running until at least April 29, 2001,
when Smith's time to file a writ of certiorari expired.
28 U.S.C. § 2244 (d)(2) also tolls the limitations period
during the time in which a "properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending." Here, Smith filed a
post-conviction petition on August 1, 2002, tolling the statute
of limitations from at least this date until February 3, 2003. Smith
filed his federal habeas corpus petition 344 days later.
However, Sternes argues that Smith's post-conviction petition
did not begin to toll the limitations period until it was filed
on August 1, 2002, citing Tate v. Pierson, 177 F. Supp.2d 792
(N.D. Ill. 2001) for support. Therefore, Sternes contends that
Smith's statute of limitations ran untolled for the 94 days
between the Illinois Supreme Court's rejection of his appeal on
January 29, 2001 and his filing of a state habeas petition on
August 1, 2001. Counting these 94 days against Smith's
limitations period, Sternes concludes that Smith had only until
October 14, 2003 to file his habeas petition. Consequently,
Sternes claims that Smith filed his habeas petition too late to
As an initial matter, the Court notes that Tate does not stand
for, or even discuss, the proposition Sternes credits to it. The
Court would like to caution Sternes against citing a case without
apparently first reading it, and not citing cases that do stand
for the proposition he is espousing. That being said, this
Court's own research could not uncover a single district or
circuit court case within the Seventh Circuit that specifically
rules on whether or not the statute of limitations is tolled
between the conclusion of a petitioner's direct appeal and the
filing of his first collateral appeal. However, courts within at
least three of our sister circuits have addressed this issue.
Each of them concluded, as Sternes argues, that a collateral post-conviction petition does
not begin to toll the statute of limitations under
28 U.S.C. § 2244(d) until it is filed. See Nino v. Galaza, 183 F.3d 1003,
1006 (9th Cir. 1999) ("AEDPA's statute of limitations is not
tolled from the time a final decision is issued on direct state
appeal and the time the first state collateral challenge is filed
because there is no case `pending' during that interval");
Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998) ("under
the plain language of the statute, any time that has passed
between the time that [petitioner's] conviction became final and
the time that his state application for habeas corpus was
properly filed must be counted against the one year period");
Bowman v. Kyler, 2003 U.S. Dist. LEXIS 23887 (E.D. Pa. 2003).
Additionally, on a related but slightly distinct issue, a court
within our own district has opined that "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."
Delaney v. Hinsley, 2004 U.S. Dist. LEXIS 12162 *3 (N.D. Ill.
2004). The Court's research did not turn up any contrary case law
favoring Smith on this question, and Smith has provided none
himself. Furthermore, as Flanagan points out, a plain reading of
the statutory language states that only "pending" collateral
petitions toll the statute of limitations. 28 U.S.C. § 2244(d)(2). In no sense was Smith's petition "pending" during
the 94 days before it was even filed.
Accordingly, this Court concurs with every other court to have
examined the issue in finding that Smith's filing of his
post-conviction petition tolled the statute of limitations only
after it was filed, and not retroactively from the date his
conviction became final.
For the reasons stated herein, the Court grants Sternes' Motion
to Dismiss, and denies Smith's § 2254 Petition as barred by the
statute of limitations.
Because the Court finds Smith's § 2254 petition procedurally
barred, the Court likewise denies Smith's Motion for Appointment
IT IS SO ORDERED. JUDGMENT IN A CIVIL CASE
 Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury rendered its
 Decision by Court. This action came before the Court. The
issues have been tried or heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that the motion to dismiss
filed by Jerry L. Sternes is granted. Robert Smith's section 2254
petition is denied.