United States District Court, N.D. Illinois, Eastern Division
August 24, 2005.
UNITED STATES of AMERICA, ex rel. DeWAYNE GROVES, Petitioner,
EDWIN R. BOWEN, Respondent.
The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Dewayne Groves ("Petitioner") filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 ("section 2254") to
set aside his conviction. Pursuant to Rule 5 of Section 2254,
Respondent, Edwin R. Bowen moves to dismiss Petitioner's petition
as time barred. For the reasons set forth below, we conclude that
the petition is time barred and Respondent's motion to dismiss is
This case is before the Court on remand from the Seventh
Circuit. Groves v. Bowen, No. 03-C1534 (May 25, 2004). In its
order, the appellate court held that the district court, in
previously denying petitioner's writ of habeas corpus, did not
have enough information before it to determine that Groves's petition was untimely under § 2254, or, in the
alternative, that it was procedurally defaulted.
After receiving briefs from the parties and further reviewing
the facts and law, this Court has determined that the petition is
time-barred under 28 U.S.C. § 2244(d).
On October 30, 1995, after a jury trial in Cook County,
petitioner was convicted of attempted murder, aggravated battery,
armed violence and aggravated battery of a child. He was
sentenced to thirty years in prison. The Appellate Court of
Illinois, First District, affirmed his conviction on February 4,
1998 (Resp't. Mot. Dismiss, Ex. A.) The Illinois Supreme Court
denied petitioner's request for leave to appeal on June 3, 1998
(Id., Ex. B.)
On October 7, 1998, Groves filed a post conviction petition in
Cook County Circuit Court. On January 4, 1998, Associate Judge
Reginald Baker dismissed the petition, calling it "frivolous and
without merit." (Id., Ex. C.) The Illinois Appellate Court
affirmed the dismissal, ruling that petitioner attempted to
circumvent the operation of res judicata by "rephrasing issues
in his petition in the context of ineffective assistance of
counsel. Defendant's post-conviction petition did not adequately
raise issues of ineffective assistance of trial and appellate
counsel but reiterated issues raised on direct appeal." (Id.,
Ex D. p. 7) (MUST TALK TO JUDGE ABOUT PRECEDING SENTENCE)
Petitioner did not seek leave to appeal to the Illinois Supreme
Instead, on April 30, 2002, Groves filed a petition for a writ
of habeas corpus in state court. (Id., Ex. E). The petition was
dismissed. On August 14, 2002, Groves filed a petition for a writ
of habeas corpus before the Illinois Supreme Court, which was
also denied in an order dated November 26, 2002. (Id., Ex. F).
The federal habeas petition now pending before this Court was
filed on February 11, 2003. This Court, in an order issued on
March 27, 2003, dismissed the petition as time-barred, or, in the
alternative, as procedurally defaulted. As stated above, the
Seventh Circuit remanded, directing this court to obtain
additional information on the issue of timeliness of the filing
of the federal habeas petition.
Pursuant to the order of the Seventh Circuit, the state filed a
brief and enclosed: copies of the Illinois Appellate Court
opinions affirming his conviction; Groves's post conviction
petition and the appeal brief in that petition; Groves's state
and federal petitions for habeas relief. After reviewing the
record and Petitioner's response to Respondent's brief, the Court
concludes that the federal habeas petition is, in fact,
Section 2244(d), imposes a one-year statute of limitation for
the filing of a habeas petition pursuant to the judgment of a
state court. The statue provides the following language:
(1) A 1-year period of limitation shall apply to an
application for 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 if
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 has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or (D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which 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 this subsection.
28 U.S.C. sec. 2244(d).
The statute of limitations is tolled during the pendency of a
properly filed post-conviction proceeding. Artuz v. Bennet,
531 U.S. 4 (2000). Here, Respondent agrees that Groves's
post-conviction petition conviction was properly filed, so, the
statute was, in fact, tolled during Petitioner's post conviction
proceedings. However, Petitioner still did not meet the statutory
deadline for filing his federal petition. A review of the
relevant dates of the state remedies he pursued, plus credit
given under the tolling provision of the statute, shows the
Petitioner's conviction became final on June 2, 1998, when the
Illinois Supreme Court denied his request for review. Because
Petitioner had ninety days in which to file a writ of certiorari
in the United State Supreme Court, pursuant to Supreme Court Rule
13, his conviction became final on September 1, 1998. The statute
of limitation began to run on this date.
But thirty-six days later, on October 7, 1998, the statute of
limitations was again tolled when petitioner filed for post
conviction relief. With the Illinois Appellate Court's denial of
the post conviction petition on February 20, 2001, Petitioner had
twenty-one days in which to file a petition for leave to appeal
to the Illinois Supreme Court, pursuant to Illinois Supreme Court
rule 315. Petitioner did not exercise this option. Therefore, his
post conviction proceedings became finalized twenty-one days
after the Illinois Appellate Court ruling, or, on March 12, 2001.
"[T]olling does not occur during period in which a petition for
certiorari could have been filed, but was not. . . ." Gutierrez v. Schomig, 233 F.3d 490, 491-92 (7th Cir. 2000).
From the conclusion of Petitioner's post conviction proceedings
on March 12, 2001, until the filing of his federal habeas
petition on February 11, 2003, nearly two years elapsed. The
Petitioner has failed to meet the one-year statute of limitations
for filing habeas petitions as is mandated under § 2244(d)(1).
In addition, petitioner cannot assert a claim under any other
provisions of § 2244(d) to render his petition timely. Petitioner
has presented no evidence suggesting that there was an impediment
to filing an application created by State action in violation of
the Constitution or laws of the United States pursuant to
28 U.S.C. 2244(d)(1)(B). Nor has petitioner presented evidence
indicating that there exists a new Constitutional right recently
enacted and applying retroactively under § 2244(d)(1)(C).
Finally, Petitioner's basis for federal habeas relief that
the state unlawfully broadened his indictment was not a theory
he was prevented, through due diligence, from recognizing prior
to the filing of this federal petition. Indeed, Petitioner
clearly had factual knowledge of the accountability theory under
which he was tried and convicted because he raised issues
albeit in a slightly different way in his direct appeal and his
post conviction petition. He chose not to appeal those issues to
the Illinois Supreme Court.
The last issue to be decided is whether petitioner's filing of
a state habeas writ in both the trial court and the Illinois
Supreme Court tolled the statute of limitations. In this case, it
did not. Petitioner waited more than one year to file his habeas
petition in state court from March 12, 2001 until April 30,
2002. "A state court post-conviction motion that is filed
following the expiration of the limitations period for seeking
federal habeas relief cannot toll that period because there is no period remaining to be tolled. Brown v. McKee,
232 F. Supp. 2d 761, 766 (ED Mich. 2002) (citing Grayson v. Grayson,
185 F. Supp. 2d 747, 750 (E.D. Mich. 2002)).
Because nearly two years lapsed between the conclusion of
petitioner's post conviction proceeding in state court and the
filing of his federal habeas petition, the petition is dismissed
For all of the reasons stated above, Groves's section 2254
petition is time-barred and accordingly, Respondent's motion to
dismiss is granted. This case is dismissed with prejudice.
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