United States District Court, N.D. Illinois, Eastern Division
September 29, 2004.
UNITED STATES OF AMERICA ex rel. JORGE CHAVEZ, Petitioner,
JOHN EVANS, Respondent.
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM AND ORDER
The respondent's motion to dismiss petitioner Jorge Chavez's §
2254 petition as time-barred is before the court. For the
following reasons, the court finds Chavez's habeas petition is
untimely and thus grants the motion to dismiss.
In January of 1999, Chavez was convicted of attempted murder
and aggravated battery with a firearm based on a gang-related
shooting incident. He was sentenced to two concurrent terms of
fifteen years' imprisonment. He filed a timely appeal and the
Illinois Appellate Court affirmed his conviction and sentence on
December 29, 2000. On July 22, 2002, Chavez placed his motion for
leave to file a late petition for leave to appeal ("PLA") in the
prison mail system. On September 30, 2002, the Illinois Supreme
Court denied Chavez's motion for leave to file an untimely PLA.
Chavez prepared a federal habeas petition, which he signed on
September 30, 2003. He sent the petition to the United States
District Court for the Southern District of Illinois. The court
received it on October 3, 2003, and subsequently transferred it
to this district. Discussion
A one-year statute of limitations applies to petitions for a
writ of habeas corpus. 28 U.S.C. § 2254(d). The statute of
limitations begins to run when the latest of several events
occur, 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. See
28 U.S.C. § 2254(d)(1)(A). Here, as noted above, the Illinois Appellate Court
affirmed Chavez's conviction and sentence on December 29, 2000.
His PLA or a notice of intent to file one was due twenty-one days
later, or on January 19, 2001. See Ill. S.Ct. Rule 315(b).
He did not file anything with the Illinois Supreme Court by
January 19, 2001 so his conviction became final as of this date.
See Fernandez v. Sternes, 227 F.3d 977, 979 (7th Cir. 2000)
(conviction is final under § 2254(d)(1)(A) twenty-one days after
the Illinois Appellate Court enters judgment where the petitioner
does not file a timely PLA or a notice of intent to file one).
The court will assume that Chavez placed his § 2254 petition in
the prison mail system with prepaid first class postage on
September 30, 2003, the date that he signed it. See Jones v.
Bertrand, 171 F.3d 499, 501 (7th Cir. 1999) (adopting the
mailbox rule in evaluating the timeliness of habeas petitions).
Even using this date, his petition is untimely because September
30, 2003, is well beyond the one-year anniversary of January 19,
This is true even though Chavez filed a motion for leave to
file an untimely PLA on July 22, 2002. First, July 22, 2002, is
more than one year after January 19, 2001. Thus, even if the
motion could toll the statute of limitations, there was nothing
to toll as the statute had already run as of the date that Chavez
filed his motion. Second, even if the motion could somehow toll a
statute that had already run, the Seventh Circuit has held that a
motion for leave to file a late PLA does not toll the statute of limitations if the motion is denied.
See Fernandez v. Sternes, 227 F.3d at 979-81. Thus, the filing
of the motion for leave to file a late PLA does not help Chavez.
This means that his federal habeas petition is untimely and must
For the above reasons, the respondent's motion to dismiss
Chavez's habeas petition as untimely is granted.
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