The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Donny Adams has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Before this Court is respondent
Mark Pierson's motion to dismiss the petition as untimely. For
the reasons provided in this Memorandum Opinion and Order,
Pierson's motion is granted.
On October 27, 1992, following a jury trial, Adams was
convicted of first-degree murder and sentenced to a forty-year
prison term. Adams filed a direct appeal of his conviction, which
was affirmed by the Illinois Appellate Court on September 5,
1996.*fn1 People v. Adams, No. 1-93-0694 (Ill.App. Ct.
Sept. 5, 1996). On April 8, 1997, Adams filed a motion to file a
late petition for leave to appeal to the Illinois Supreme Court,
which was granted on June 3, 1997. People v. Adams, No. 83370
(Ill. June 3, 1997). On October 1, 1997, the Illinois Supreme
Court denied Adams' petition, which consisted of the same claims
made in his direct appeal to the Illinois Appellate Court. People v. Adams, No. 83370 (Ill. Oct. 1,
On October 30, 1997, Adams filed a petition for post-conviction
relief in the Circuit Court of Cook County, alleging eight claims
of ineffective assistance of counsel and one claim of actual
innocence. On December 15, 1997, the Circuit Court denied the
petition, and Adams appealed to the Illinois Appellate Court.
People v. Adams, No. 92CR 01890-1 (Ill. Cir. Ct. Dec. 15,
1997). Adams' counsel filed a brief pursuant to Pennsylvania v.
Finley, 481 U.S. 551 (1987), and Adams filed a response stating
that he was not culpably negligent in failing to file his
post-conviction petition within the statutory period. On May 3,
1999, the Illinois Appellate Court affirmed the Circuit Court's
order and held that Adams failed to state any grounds to excuse
his untimely filing. People v. Adams, No. 1-98-0719 (Ill.App.
Ct. May 3, 1999). On June 10, 1999, Adams filed a petition for
leave to appeal to the Illinois Supreme Court, which was denied
on October 6, 1999. People v. Adams, No. 87666 (Ill. Oct. 6,
On October 25, 1999, Adams filed a second post-conviction
petition and argued that his appellate counsel had been
ineffective by failing to inform him of the change in the time
limit for filing under the Post-Conviction Hearing Act and that
he was actually innocent of the crime based on new evidence. On
January 6, 2000, the Circuit Court of Cook County dismissed the
second post-conviction petition as frivolous and patently without
merit. People v. Adams, No. 92CR 01890-1 (Ill. Cir. Ct. Jan. 6,
2000). On February 1, 2000, Adams filed a motion for
reconsideration, which was denied, and on October 19, 2001, the
Illinois Appellate Court affirmed. People v. Adams, No. 92CR
01890-01 (Ill. Cir. Ct. Feb. 22, 2000); see People v. Adams,
No. 1-00-0878 (Ill.App. Ct. Oct. 19, 2001). On December 5, 2002,
Adams' petition for leave to appeal was denied. People v.
Adams, No. 92978 (Ill. Dec. 5, 2002).)
On June 13, 2002, Adams filed his third petition for
post-conviction relief and argued that he was denied his right to file a timely post-conviction
petition because, in his view, the appellate court delayed in
ruling on the direct appeal of his conviction. The Circuit Court
dismissed the petition, stating that Adams had failed to
demonstrate any basis to warrant the court's consideration and
that the petition was barred by waiver and res judicata. People
v. Adams, No. 92CR 01890-1 (Ill. Cir. Ct. Sept. 9, 2002). Adams
appealed, and the public defender filed a motion pursuant to
Pennsylvania v. Finley, 481 U.S. 551 (1987), to which Adams
responded. On June 13, 2003, the Illinois Appellate Court
affirmed. People v. Adams, No. 1-02-3093 (Ill.App. Ct. June
13, 2003). Adams did not petition for leave to appeal to the
Illinois Supreme Court with regard to his third post-conviction
petition. (See Resp't's Ex. R, Letter of 1/13/04 (stating no
record of petition for leave to appeal his third post-conviction
Respondent seeks to dismiss Adams' habeas petition because the
petition is time-barred under 28 U.S.C. § 2244. The pertinent
provision of 28 U.S.C. § 2244 requires that a petition for writ
of habeas corpus must be filed within one year 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); see Anderson v. Litscher, 281 F.3d 672,
674 (7th Cir. 2002).
Thus, the Court must first determine the date on which the
judgment became final. On October 1, 1997, the Illinois Supreme
Court denied Adams' petition for leave to appeal the Illinois
Appellate Court's affirmance of his conviction. People v.
Adams, No. 83370 (Ill. Oct. 1, 1997). Adams then had ninety
days, or until December 30, 1997, to petition the U.S. Supreme Court for a writ of certiorari, but he did not do so. See
Sup. Ct. R. 13. Thus, December 30, 1997 is the date on which direct
review of his conviction concluded and the statute of limitations
for filing his habeas corpus petition began to run.
The statute of limitations may be tolled, however, 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." 28 U.S.C. § 2244(d)(2);
see Smith v. Walls, 276 F.3d 340, 343 (7th Cir. 2002); United
States ex rel. Fernandez v. Washington, No. 98 C 1332, 1999 WL
688771, at *2-3 (N.D. Ill. Mar. 30, 1999). For the purposes of
timeliness, a properly filed state post-conviction petition
requires its delivery and acceptance to comply with the
applicable laws and rules governing filings in that state,
including the form of the document, time limits upon its
delivery, and payment of the filing fee, regardless of whether
the state court later dismisses the application as procedurally
barred. Artuz v. Bennett, 531 U.S. 4, 8 (2000).
In the present matter, Respondent argues that Adams' first
state post-conviction petition was improperly filed according to
Illinois rules and therefore did not toll the limitations period
for filing a federal habeas corpus petition. Adams opines that he
is excused from an untimely filing because the four years during
which his direct appeal was pending in the Illinois Appellate
Court exhausted the time limit under which he could file a
A petitioner has three years from the date of sentencing or six
months from the Illinois Supreme Court's denial of a petition for
leave to appeal, whichever occurs sooner, to file his first
post-conviction petition and toll the one-year statute of
limitations for filing a federal habeas petition. 725 ILL. COMP.
STAT. 5/122-1(c); see Freeman v. Page, 208 F.3d 572, 574 (7th
Cir. 2000); Rivas v. Sternes, No. 03 C 2164, 2004 WL 407003, at
* 1 (N.D. Ill. Feb. 24, 2004). Furthermore, the petitioner has
twenty-one days after the Illinois Appellate Court's denial of
the post-conviction petition to submit a properly filed petition for
leave to appeal to the Illinois Supreme Court. United States ex
rel. Morgan v. Gilmore, 26 F. Supp. 2d 1035, 1038 (N.D. Ill.
Respondent argues that Adams' petition for writ of habeas
corpus is time-barred because his first state post-conviction
petition, dated by Adams as October 30, 1997 and stamped as filed
by the court on November 19, 1997, was not properly filed and did
not toll the statute of limitations. Adams' first state
post-conviction petition was due on the earliest of three years
after his sentencing or six months after the Illinois Supreme
Court denied his properly filed petition for leave to appeal.
See 725 ILL. COMP. STAT. 5/122-1(c); see also Rivas, 2004 WL
407003, at *2. Adams was convicted on October 27, 1992, and the
Illinois Supreme Court denied his petition on October 1, 1997.
Thus, the earliest date is three years after conviction, ...