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United States District Court, N.D. Illinois, Eastern Division

July 22, 2004.

United States of America ex rel. TERRANCE LOVE, Petitioner,
VICTOR TRANCOSO, Warden, Illinois River Correctional Center, Respondent.

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Following a February 20, 1997 jury trial, Petitioner Terrance Love was found guilty of first degree murder, and the Circuit Court of Cook County sentenced him to 42 years in prison. Petitioner appealed that judgment and, on August 7, 1998, the Appellate Court of Illinois, First District, affirmed the conviction. People v. Love, 298 Ill. App.3d 1157, 738 N.E.2d 232 (1st Dist. 1998). The Illinois Supreme Court denied leave to appeal on June 2, 1999. People v. Love, 184 Ill.2d 566, 714 N.E.2d 530 (1999). Petitioner filed a petition for a writ of habeas corpus pro se in this court on June 14, 1999.*fn1 On October 13, 1999, this court dismissed that petition "without prejudice to re-filing" on the ground that Petitioner had not exhausted his state remedies. On November 23, 1999, Petitioner filed a post-conviction petition in the Circuit Court of Cook County, which dismissed the petition; that dismissal became final on October 2, 2002, when the Illinois Supreme Court denied leave to appeal. People v. Love, 201 Ill.2d 596, 786 N.E.2d 194 (2002). Petitioner filed this petition for a writ of habeas corpus pro se on July 15, 2003 pursuant to 28 U.S.C. § 2254, and Respondent Victor Trancoso moved to dismiss the petition as untimely. By minute order dated December 5, 2003, this court denied Respondent's motion. On December 16, 2003, Defendant moved to alter or amend that judgment. On April 12, 2004, this court vacated the December 5, 2003 minute order, granted Respondent's motion to alter or amend the judgment, and dismissed Petitioner's July 15, 2003 petition as untimely. Through his counsel,*fn2 Petitioner now moves to alter or amend this court's April 12, 2004 judgment pursuant to FED. R. CIV. P. 59(e). For the reasons explained here, the motion is denied.

Petitioner does not challenge the court's determination that he filed his petition four days after the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), had expired. (Motion for Reconsid. ¶¶ 3-4, 15.) Indeed, he concedes that in Duncan v. Walker, 533 U.S. 167 (2001), the Supreme Court held that a pending application for federal habeas corpus review does not toll the § 2244(d)(1) limitations period. Instead, he asks that the limitations period be equitably tolled for the time when his initial petition was pending before this court (August 31 through October 13, 1999), on two grounds: First, he contends, the language of this court's order dismissing his original petition led him to conclude that the limitations period would be tolled from the date that initial petition was filed. Second, he argues, the question whether a pending application for habeas relief tolled the limitations period was not settled until the Supreme Court issued its decision in Duncan. (Motion for Reconsid. ¶ 13.)

  Our Court of Appeals has explained that "[e]quitable tolling excuses an untimely filing when extraordinary circumstances far beyond the litigant's control prevented timely filing," Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003) (internal quotations marks and citations omitted), or "when a petitioner could not, despite the exercise of reasonable diligence, have discovered all the information he needed in order to be able to file his claim on time." Wilson v. Battles, 302 F.3d 745, 748 (7th Cir. 2002) (citation omitted). The Seventh Circuit has not held that the filing deadline in § 2244(d)(1) may never be equitably tolled, but it has observed that "it is unclear what room remains for importing the judge-made doctrine of equitable tolling into § 2244 claims, given the express tolling provisions incorporated in the statute." Nolan v. United States, 358 F.3d 480, 483-84 (7th Cir. 2004) (internal quotations marks and citations omitted). Indeed, the court has refused to equitably toll statutes of limitation for collateral attacks on grounds of attorney incapacity, Modrowski, 322 F.3d at 968; a prisoner's lack of access to a trial transcript, Lloyd v. VanNatta, 296 F.3d 630, 633 (7th Cir. 2002); an attorney's failure to respond, language barrier, lack of legal knowledge, and transfer between prisons, Montenegro v. United States, 248 F.3d 585, 594 (7th Cir. 2001), overruled on other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001); unclear law and the death of an attorney's father, United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000); or attorney negligence, Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999). In a pre-Duncan decision, the court has indicated, however, that "[t]olling [for a § 2254 petitioner] may be available when some impediment of a variety not covered in § 2244(d)(1)*fn3 prevents the filing of a federal collateral attack." Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000); cf. Duncan, 533 U.S. at 184 (Stevens, J., concurring) ("[E]quitable considerations may make it appropriate for federal courts to fill in a perceived omission on the part of Congress by tolling AEDPA's statute of limitations for unexhausted federal habeas petitions").

  Petitioner cites Kethley v. Berge, 14 F. Supp.2d 1077 (E.D. Wis. 1998), where a magistrate judge erroneously concluded that petitioner had exhausted his state remedies, and the case remained pending before the district court for three years, thus exceeding the one-year statute of limitations under § 2244(d)(1). Id. at 1078. The court determined that although the limitations period was not tolled under § 2244(d)(2) during the three-year period while it was "gathering dust on district court shelves," barring petitioner from re-filing on account of the magistrate judge's error would violate the "spirit and logic" of the AEDPA. Id. at 1079. The court thus dismissed the petition without prejudice and ordered that if petitioner chose to reopen his petition, he would retain the original case number and filing date, thus in effect tolling indefinitely the statute of limitations from the date petitioner filed his initial petition. Id. at 1078.

  Petitioner here essentially claims that this court's order dismissing his original petition on October 13, 1999 "without prejudice to re-filing after Petitioner exhausts his remedies by filing a post-conviction petition" led him to believe that, like petitioner in Kethley, he would be permitted to return to federal court at any time after his state remedies were exhausted. (See Motion for Reconsid. ¶ 7.) Had this court suggested to Petitioner that the statute of limitations would be tolled indefinitely, he might well be entitled to equitable relief. See Pliler v. Ford, ___ U.S. ___, 124 S.Ct. 2441, 2447 (2004) (O'Connor, J., concurring) ("[I]f the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate"). In the court's view, however, there is no evidence that Petitioner was aware of the Kethley decision prior to re-filing his habeas petition, or that this court's dismissal order otherwise misled Petitioner to believe he was at liberty to re-file at a time of his choosing. Indeed, it is doubtful that a reasonable person would understand the phrase "without prejudice to re-filing," which relates only to the ability to re-file a habeas petition, as indefinitely extending the time for re-filing such a petition.

  The court notes, further, that it dismissed Petitioner's original petition only a month and a half after the limitation clock under § 2244(d)(1) began to run. Another month and a half elapsed before Petitioner filed his state petition for post-conviction review; when he had exhausted that process, he still had an additional 282 days in which to re-file a petition for habeas relief. Petitioner provides no explanation for this nine-month delay in filing his second petition. Cf. Johnson v. McCaughtry, 265 F.3d 559, 575 (7th Cir. 2001) (refusing to equitably toll § 2244(d)(1) limitations period in part because "a majority of [petitioner's] excludable year, 210 days, elapsed between [the cessation of post-conviction review] . . . and the time he finally filed for habeas relief in federal court"). Petitioner points to no cases, and the court found none, equitably tolling a limitations period when the court had dismissed the initial petition in a timely manner. In the court's view, then, Petitioner had no basis for supposing that this court's October 13, 1999 order dismissing his original petition meant that the limitations period would be tolled indefinitely. Even if Petitioner, as a nonlawyer proceeding pro se, had some reasonable basis for believing so, his lack of legal knowledge as to that order's meaning does not constitute an extraordinary circumstance sufficient to justify equitable tolling. Montenegro, 248 F.3d at 594.

  Similarly, in the court's view, the fact that the question whether a pending habeas application tolls the limitations period was not settled until the 2001 Duncan decision does not warrant equitable tolling. As noted earlier, our Court of Appeals has held that unclear law regarding a filing deadline is not grounds for equitable tolling. Marcello, 212 F.3d at 1010. Indeed, the court explained, where the deadline for filing is unclear, a petitioner should file "by the earliest possible deadline, not the latest." Id.; see also Wilson, 302 F.3d at 748 (same).

  In addition, Petitioner urges that "it is unfair and unnecessarily harsh[] to throw [Petitioner's] habeas corpus claim out because he was 4 days late." (Motion for Reconsid. ¶ 13.) Here, too the Seventh Circuit has spoken, explaining that "the length of the delay in filing has no bearing on [the equitable tolling] analysis; equitable tolling will apply only to exceptional cases, regardless of how minimal the delay in filing." Wilson, 302 F.3d at 749; see also Marcello, 212 F.3d at 1010 (refusing to grant equitable tolling when, due to attorney error, petitioner's claim was filed one day late).*fn4

  The court denies Petitioner's motion for reconsideration (Doc. 23-1).

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