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U.S. EX REL. MARTIN v. CHAMBERS

August 31, 2005.

United States of America ex rel. MIKE MARTIN, Petitioner,
v.
JOHN CHAMBERS, Warden, Danville Correctional Center, Respondent.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Mike Martin's ("Martin") request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c). For the reasons stated below, Martin's request for a certificate of appealability is denied.

BACKGROUND

  On December 4, 1998, following a jury trial in the Circuit Court of Lake County, Illinois ("trial court"), Martin was found guilty of attempted first degree murder, two counts of armed violence, and two counts of aggravated battery with a firearm. Martin was subsequently sentenced to consecutive prison terms of 24 and 25 years for each of the convictions for armed violence. Martin filed an appeal and the Appellate Court of Illinois affirmed the judgment of the trial court, but modified the mittimus to specify that Martin was entitled to day-for-day good conduct credit against his sentence. Martin then filed a petition for leave to appeal with the Supreme Court of Illinois, which was denied on April 4, 2001. On May 16, 2001, Martin filed a state post-conviction petition in the trial court, which was dismissed on July 16, 2001. Martin then filed an appeal and the Appellate Court of Illinois affirmed the judgment of the trial court. Subsequently, Martin filed a petition for leave to appeal with the Supreme Court of Illinois, which was denied on October 7, 2003.

  On October 26, 2004, Martin filed his petition for writ of habeas corpus before this court and Respondent subsequently filed a motion to dismiss. On April 22, 2005, in a memorandum opinion, we granted Respondent's motion to dismiss since Martin's petition for writ of habeas corpus was time-barred because it was not filed within the one-year statute of limitations period imposed in the Anti-Terrorism and Effective Death Penalty Act of 1996 § 1, et seq. ("AEDPA"). Martin now seeks a certificate of appealability.

  LEGAL STANDARD

  In order to appeal the denial of a petition for writ of habeas corpus, a petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c); Montgomery v. Davis, 362 F.3d 956, 957 (7th Cir. 2004). A court should only issue a certificate of appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner must also show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDonnell, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

  DISCUSSION

  In Martin's request for a certificate of appealability, Martin claims that the court failed to sufficiently consider the arguments presented by Martin in his response brief to Respondent's motion to dismiss ("Response Brief"). As a result, Martin contends that the court miscalculated the date in which Martin's state court conviction became final for purposes of habeas review. (Request 3-4). In addition, Martin argues that the court should have applied the doctrine of equitable tolling. (Request 3-4). Despite Martin's contentions, the court did in fact consider the arguments set forth in Martin's Response Brief and as our prior opinion illustrates, Martin's arguments are without merit. (Opinion 4-8).

  I. Statute of Limitations

  In Martin's request for a certificate of appealability, Martin contends that the court miscalculated the date in which Martin's state court conviction became final for purposes of habeas review. (Request 3-4). AEDPA's one-year statute of limitations, for purposes of habeas review, "begin 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." See Anderson v. Lischer, 281 F.3d 672, 675 (7th Cir. 2002) (emphasis in the original) (explaining that the period during which a petitioner may file a petition for writ of certiorari with the United States Supreme Court expires ninety days after all direct criminal appeals in the state system are concluded). AEDPA's statute of limitations are tolled while a petitioner has a proper application for state post-conviction review filed and pending in the state court. Williams v. Sims, 390 F.3d 958, 960 (7th Cir. 2004); Smith v. Walls, 276 F.3d 340, 343 (7th Cir. 2002).

  The record reflects that after Martin exhausted his remedies on direct appeal, Martin filed a state post-conviction petition before the expiration of the ninety-day period allotted for filing a petition for writ of certiorari with the United States Supreme Court. Lischer, 281 F.3d 675; (Resp't App. D, A. 5). Accordingly, AEDPA's statute of limitations remained tolled during the period in which Martin's state post-conviction petition was "pending" in the state court. Walls, 276 F.3d at 343. On October 7, 2003, the Supreme Court of Illinois denied Martin's petition for leave to appeal from the lower courts' decision on his state post-conviction petition. Therefore, on October 7, 2003, AEDPA's statute of limitations were triggered and Martin had until October 7, 2004 to file a timely petition for writ of habeas corpus. Wilson v. Battles, 302 F.3d 745, 747-48 (7th Cir. 2002).

  In Martin's Response Brief, Martin has contended that his petition for writ of habeas corpus which was filed on October 26, 2004 was timely because his conviction did not become final on October 7, 2003, the day the Supreme Court of Illinois denied Martin's petition for leave to appeal from the lower courts' decision on his state post-conviction petition. Rather, Martin argues that his conviction did not become final until October 29, 2003, the date the Supreme Court of Illinois issued its mandate to the Appellate Court of Illinois. In Respondent's reply brief, Respondent has disputed Martin's contention and has argued that Martin's petition for writ of habeas corpus became final on October 7, 2003, the day the Supreme Court of Illinois denied Martin's petition for leave to appeal from the lower courts' decision on his state post-conviction petition. (Resp't Reply 1-2). Under Illinois law, "the judgment of an Illinois Court of Appeals is final on the day it is entered" and not on the day such a court issues its mandate. See Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004) (stating that "state law controls the issue of when a state action is pending and when it is final."). Accordingly, Martin's conviction became final on October 7, 2003, the date the Supreme Court of Illinois denied his petition for leave to appeal from the lower courts' decision on his state post-conviction petition. Gildon, 384 F.3d at 887; Battles, 302 F.3d at 747-48. For AEDPA's statute of limitations purposes, Martin therefore had until October 7, ...


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