United States District Court, C.D. Illinois
August 11, 2005.
DAVID A. MOORE, Petitioner,
ALAN UCHTMAN, Warden, Respondent.
The opinion of the court was delivered by: MICHAEL MIHM, District Judge
This matter is now before the Court on Petitioner David A.
Moore's Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254. For the reasons set forth below, the § 2254 Petition is
The following facts are taken from Moore's Petition. In 1992,
Moore was convicted of three counts of murder and one count of
burglary after a jury trial in Peoria County Court. He was
sentence to 70 years in prison. On appeal, two of the three
murder convictions were vacated; however, the convictions and
sentences on the third murder charge and the burglary were
upheld. Additionally, Moore's first post-conviction motion was
dismissed in May 1998 (there is no indication in Moore's
pleadings of the date that it was filed); his second
post-conviction motion was filed in June 1998 and dismissed in
February 1999; and a state habeas petition was filed in January
2001, dismissed in that same month, and a petition for leave to
appeal was denied by the Illinois Supreme Court in January 2004.
In March 2005, Moore filed the instant Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 in the Northern
District of Illinois; the case was transferred to this District
in May. This Order follows. DISCUSSION
There are statutory time limits which govern whether a district
court can entertain a petition for writ of habeas corpus. The
present case is covered by 28 U.S.C. § 2244, which states in
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.
The limitation period shall run from the latest of
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right was newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review;
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The time during which a properly filed
application for post-conviction or other collateral review is
pending in the state courts is not counted toward any period of
limitation. 28 U.S.C. § 2244(d)(2).
In the present case, Moore gives no indication that his case is
governed by anything other than subsection (A). He makes no
assertion that he was unable to discover his claims within the
time period allowed through the exercise of due diligence, that
there is any newly recognized constitutional right, or that he
was prevented from filing. Thus, this case does not involve the
application of sub-sections (B), (C), or (D) above. According to Moore, his direct attack on his conviction ended
on November 21, 1996, when his 30-day time for filing a direct
appeal expired. Although he does not state when he filed his
first post-conviction motion, the court will assume that it was
timely, and thus served to toll the one-year limitations period
under § 2254. His pursuit of that motion ended in June 1998, when
his 30-day period for filing an appeal expired after the motion
was dismissed. Although he filed a second post-conviction motion
in May 1998, the period during which that motion was pending does
not toll the one-year limitations period because the motion was
not properly filed, as required by § 2254.
28 U.S.C. § 2244(d)(2). 725 ILCS 5/122-1 requires any post-conviction
petitions to be brought within three years of the date of
conviction, and Moore's second post-conviction petition clearly
falls outside of that window. Finally, the court will assume that
Moore's state habeas corpus petition was properly filed, and
therefore, will not count January 2001 through January 2004
against Moore's limitations period.
However, even after tolling Moore's limitations period during
the pendency of his first post-conviction motion and his state
habeas petition, Moore is still well outside the one-year
limitations period of § 2254. His first opportunity to file a
federal habeas action was in June 1998, after his first
post-conviction motion was dismissed. The limitations period did
not begin tolling again until January 2001, when he filed his
state habeas action. Accordingly, he was required to file his
petition by June 1999, and is nearly six years late.
Furthermore, it is entirely unclear what Moore is challenging
in this federal habeas action. In the section of his Petition
entitled "Petitioner's Claims" Moore states the following:
I would wish and pray that the Federal Courts would
look over my case in supporting me in any matter that
may be wrongfully done in my case. I am dumfounded in the laws and need your help badly.
Many thanks, David A Moore.
He makes no more specific allegations explaining why his entitled
to relief in this court. The court views this failure as an
alternate grounds justifying dismissal.
For the reasons set forth above, Moore's petition for writ of
habeas corpus pursuant to § 2254 is DENIED, and this matter is
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