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.
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 ...