United States District Court, N.D. Illinois
August 12, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, Curtis Sullivan, a state prisoner, filed this
action pursuant to 28 U.S.C. § 2254, seeking to challenge his
state convictions for aggravated battery with a firearm and
aggravated discharge of a firearm. The State filed a motion to
dismiss predicated on the one-year statute of limitations
contained in 28 U.S.C. § 2254(d). Petitioner has filed a response
to the motion to dismiss.
Section 2254(d) provides, in pertinent part, that a one-year
limitation period shall apply to a petition for writ of habeas
corpus. The limitation period shall run from the latest of
certain circumstances, including the one applicable here: 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. § 2254(d)(1)(A). This date is extended 90 days,
which is the time a prisoner has following the conclusion of his
direct appeal in the state court system to file a petition for
writ of certiorari with the United States Supreme Court.
Anderson v. Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002).
In this case, petitioner's direct review of his state-court
conviction concluded on August 29, 2000, a date calculated by
adding the 90-day extension for filing a petition for writ of
certiorari (petitioner did not file such a petition). Ninety days
later, on November 27, 2000, petitioner filed a state
post-conviction petition. Thus, the statute of limitations was
not tolled during the 89-day interim.
Petitioner's state post-conviction proceedings concluded on May
30, 2002, when the Illinois Supreme Court denied his petition for
leave to appeal. Petitioner did not file a petition for writ of
certiorari, and the time period was not tolled for an additional
90 days. See Gutierrez v. Schomig, 233 F.3d 490, 491-92
(7th Cir. 2000). Therefore, as of May 30, 2002, petitioner
had 276 days in which to file a petition pursuant to § 2254.
Instead, petitioner filed a state habeas corpus petition on
July 17, 2002. The interim between May 30, 2002, and July 17,
2002, cost petitioner another 47 days, leaving him with 229 days
in which to file a petition under § 2254.
Even assuming the petition for state habeas relief tolled the
one-year statute of limitation (see Young v. Roth, No. 97 C
3103, 1998 WL 851502, *2 (N.D. Ill. Dec. 3, 1998)), those
proceedings concluded on June 4, 2003, when the Illinois Supreme
Court denied petitioner's petition for leave to appeal. There is
no authority to suggest that the 90-day extension for filing a
petition for writ of certiorari would apply as this was not a
direct appeal proceeding and Gutierrez would support its
non-applicability. That left petitioner with 229 days from June
4, 2003, or until January 20, 2004 (the 229th day, January
19, 2004, fell on a holiday) to file his petition under § 2254.
He filed it on February 19, 2004 (that is the earlier of two
dates, the one asserted by the State as the filing date and the
February 20, 2004, date stamped on the envelope used to mail his
petition to the clerk's office). The petition having been filed
beyond the one-year limitations period, the court dismisses this
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