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U.S. EX REL. APONTE v. STERNES

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


September 27, 2004.

UNITED STATES OF AMERICA ex rel. DANIEL APONTE, Petitioner,
v.
JERRY STERNES, et al., Respondent.

The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Respondent's Motion to Dismiss Petitioner Daniel Aponte's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. For the reasons discussed below, Respondent's motion is granted.

BACKGROUND

  On August 15, 1996, Aponte was sentenced by the Circuit Court of Cook County to a term of forty years' imprisonment after a jury found him guilty of armed robbery. (Pet. Habeas Corpus ¶¶ 1-6.) Aponte appealed, but on June 10, 1998, the Illinois Appellate Court affirmed both his conviction and sentence. (Id. ¶ 8.) Thereafter, Aponte filed a petition for rehearing, which was denied on July 27, 1998. (Mot. Dismiss, Ex. B.)*fn1 Having failed to file a timely petition for leave to appeal, on July 22, 1999, Aponte filed a motion with the Illinois Supreme Court for leave to file a late petition for leave to appeal, which was denied on October 5, 1999. (Mot. Dismiss, Exs. C, D.)

  On August 5, 1999, Aponte submitted two motions to the Circuit Court of Cook County: one moving the court to appoint an investigator to assist Aponte in preparing his post-conviction petition, the other requesting a free copy of his transcript and record. (Mot. Dismiss, Ex. E.) The circuit court denied Aponte's request for the trial transcript, noting that it had already been provided. (Mot. Dismiss, Ex. F.) Aponte filed a petition for post-conviction relief on August 11, 1999,*fn2 which was dismissed as being without merit on October 21, 1999. (Pet. Habeas Corpus ¶¶ 9-10; Mot. Dismiss, Ex. G.) Aponte's motion for the appointment of an investigator was also dismissed on October 21, 1999. (Mot. Dismiss, Ex. G.)

  On appeal, the appellate court affirmed the circuit court's denial of the motion for a free copy of the record on November 21, 2000. (Mot. Dismiss, Ex. F.) The appellate court also affirmed the dismissal of Aponte's petition for post-conviction relief on December 4, 2001. (Mot. Dismiss, Ex. H.) The Illinois Supreme Court denied Aponte's leave to appeal on December 5, 2002. (Mot. Dismiss, Ex. I.) On May 5, 2003, the U.S. Supreme Court denied Aponte's petition for a writ of certiorari. (Mot. Dismiss, Ex. J.) DISCUSSION

  Respondent has moved to dismiss Aponte's petition on the sole basis that it is time-barred under 28 U.S.C. § 2244(d)(1), which provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court." 28 U.S.C. § 2244(d)(1). While the one-year period begins to run at the latest of certain dates, as proscribed by 28 U.S.C. §§ 2244(d)(1)(A)-(D), the Court finds that only § 2244(d)(1)(A) applies in the present case.*fn3 See United States ex rel. Pickens v. Battles, No. 03 C 6479, 2004 WL 609368, at *1 (N.D. Ill. Mar. 19, 2004). Section 2244(d)(1)(A) provides that the one-year period begins on "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).

  The Seventh Circuit has held that "the statute of limitations imposed by section 2244(d)(1)(A) begins to run (i) when all direct criminal appeals in the state system are concluded, followed by either completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) when, if certiorari was not sought, all direct criminal appeals in the state system are concluded, followed by the expiration of the time allotted for filing a petition for writ." Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002) (emphasis in original).

  To determine when the time for seeking direct state review expired, the Court looks to Illinois Supreme Court Rule 315(b), which is applicable to criminal appeals through Illinois Supreme Court Rule 612(b):

If a timely petition for rehearing is filed, the party seeking review [by the Illinois Supreme Court] must file the petition for leave to appeal within 21 days after the entry of the order denying the petition for rehearing, or within the same 21 days must file with the Appellate Court an affidavit or a section 1-109 certification of intent to file a petition, and file the petition within 35 days after entry of such order.
Ill. S.Ct. R. 315(b).

  While Aponte timely filed a petition for rehearing, that petition was denied on July 27, 1998. Thus, Aponte had twenty-one days after July 27, 1998 either to file his petition for leave to appeal or to notify the appellate court of his intent to file such a petition. Aponte did neither.*fn4 Accordingly, the one-year period set out by § 2244(d)(1) commenced on August 17, 1998, twenty-one days after the Illinois Appellate Court's dismissal of his petition for rehearing.*fn5 See United States ex rel. Thomas v. Welborn, No. 00 C 2601, 2000 WL 1831548, at *2 (N.D. Ill. Dec. 13, 2000) (holding that petitioner's failure to file a petition for leave to appeal created a final judgment twenty-one days following the appellate court's ruling, pursuant to Illinois Supreme Court Rule 315); see also Fernandez v. Sternes, 227 F.3d 977, 981 (7th Cir. 2000) (noting that "[s]tate processes ended when the time to seek further review expired" and while "[t]hey may be revived . . . the prospect of revival does not make a case `pending' in the interim"). Moreover, Aponte's motion to file a late petition for leave to appeal, which was denied, does not extend this date. See Tate v. Pierson, 177 F.Supp. 2d 792, 797 (N.D. Ill. 2001) (citing Fernandez, 227 F.3d at 979) (noting that petitioner's "motion to file a late petition for leave to appeal was denied and therefore could not extend the accrual date").

  However, while the clock started running on August 17, 1998, 28 U.S.C. § 2244(d)(2) provides persons in custody with a method by which they are able to effectively toll the period of limitations during the pendency of a properly filed application for post-conviction review. Specifically, § 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under [§ 2244(d)(1)]." 28 U.S.C. § 2244(d)(2).

  In the present case, Aponte did seek post-conviction relief, which would toll the applicable one-year period of limitation. Aponte's petition for post-conviction relief was filed on August 11, 1999, 359 days after August 17, 1998, the commencement of the one-year period established by § 2244(d)(1). With little time to spare, Aponte therefore did pause the clock measuring the one-year period of limitations. When the clock restarted is an issue that is unresolved by the Seventh Circuit. Specifically, the Seventh Circuit expressly has not addressed "the impact of a properly filed petition for certiorari from the denial of state post-conviction relief on the statute of limitations in habeas corpus actions." Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000) (noting, in dicta, that other circuits have held that a properly filed petition for certiorari review does not toll the limitations period because "the state post-conviction review is complete once the state's highest court has ruled"); see also United States ex rel. Brost v. Briley, No. 01 C 2673, 2001 WL 558043, at *3 n. 4 (N.D. Ill. May 21, 2001) (conveying the belief that the Seventh Circuit "would agree that seeking certiorari by the United States Supreme Court is not a form of `State . . . review'" and therefore not includable in the tolling calculation).

  Ultimately, the Court need not answer the question left unresolved by the Seventh Circuit in this case because Aponte's petition for a writ of habeas corpus is untimely in any event. If the time during which Aponte sought a writ of certiorari did not toll the one-year period of limitation, the clock began to run again on December 5, 2002, and Aponte's filing of his petition for a writ of habeas corpus on December 5, 2003 would be 359 days late. If the period of limitation were tolled while Aponte sought a writ of certiorari, his habeas corpus petition would nevertheless be 208 days late.

  As a final matter, this Court must consider whether Aponte's petition must be considered on its merits, despite being time-barred under 28 U.S.C. § 2244(d)(1). In his response to the motion to dismiss, Aponte states that he "is innocent of the crime he is convicted for due to malicious and deceptive practices thr[ough] perjured testimony which was never impeached by ineffective trial counsel which also did his appeal as well." (Resp. Mot. Dismiss at 9.)

  "A claim of actual innocence or the `fundamental miscarriage of justice exception' . . . can provide a gateway for federal habeas courts to review procedurally defaulted claims." United States ex rel. Caffey v. Briley, 266 F. Supp. 2d 789, 793 (N.D. Ill. 2003) (citing Herrera v. Collins, 506 U.S. 390, 400 (1993)). To show actual innocence, Aponte "must not only `support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial' but also `show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Tate, 177 F.Supp.2d at 802 (quoting Schlup v. Delo, 513 U.S. 298 (1995)); see Thomas, 2000 WL 1831548, at *3 (quoting Murray v. Carrier, 477 U.S. 478, 495-96 (1986)) ("In order to demonstrate a fundamental miscarriage of justice, a petition must show that `a Constitutional violation has probably resulted in the conviction of one who is actually innocent.'").

  Aponte fails to meet this requirement because he has not provided new, reliable evidence that was not presented at trial. (See Pet. Habeas Corpus at 4-6.) At best, the "evidence" Aponte offers is merely his version of the events underlying his conviction and is completely unsupported. See Thomas, 2000 WL 1831548, at *4 (noting that the "new evidence" submitted by the petitioner in connection with his habeas claim was "completely unsupported" and therefore "do[es] not approach the level of proof required of a petitioner seeking to invoke the actual innocence exception"). Furthermore, even assuming that Aponte's submissions did constitute new evidence, he has not shown that it is more likely than not that that no reasonable juror would have convicted him in light of the new evidence. Accordingly, Aponte has failed to show that the dismissal of his petition will result in a "fundamental miscarriage of justice."

  CONCLUSION

  For the reasons stated above, Respondent's Motion to Dismiss [doc. no. 13-1] is granted. This case is hereby terminated, and all other pending motions are denied as moot.

  SO ORDERED


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