United States District Court, N.D. Illinois, Eastern Division
October 12, 2005.
Edmund Ingram, Petitioner,
Deirdre Battaglia, Respondent.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Respondent's motion to
dismiss. For the reasons stated below, we grant Respondent's
Petitioner Edmund Ingram ("Ingram") was convicted, following a
bench trial in the Circuit Court of Cook County, Illinois, of two
counts of first-degree murder, attempted first degree murder, and
unlawful use of a weapon by a felon. Ingram was sentenced to life
imprisonment, a 30-year concurrent prison term, and a 5-year
concurrent prison term. On November 16, 2001, Ingram's conviction
was upheld by the Illinois Appellate Court, and he did not file a
petition for leave to appeal to the Illinois Supreme Court. On
July 19, 2002, Ingram filed a petition seeking post-conviction relief in the Illinois state courts. On September 4, 2002, the
state circuit court denied Ingram's petition for post-conviction
relief. The Illinois Appellate Court subsequently affirmed the
circuit court's denial of relief, and the Illinois Supreme Court
denied Ingram's petition for leave to appeal on October 7, 2003.
Ingram filed a petition seeking a writ of habeas corpus in
this court on October 13, 2004. On October 28, 2004, we dismissed
the petition without prejudice for failure to exhaust state
remedies. On December 13, 2004, Ingram filed the instant action
seeking a writ of habeas corpus in this court, in which Ingram
acknowledged that there were no related actions pending in state
court. Respondent has filed a motion to dismiss, claiming that
Ingram's petition for a writ of habeas corpus is time barred.
Under 28 U.S.C. § 2244(d) ("Section 2244(d)"), all habeas
corpus petitions filed in the federal courts must be filed
within a one-year statue of limitations, which is measured 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 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
28 U.S.C. § 2244(d)(1). Given that Ingram has not
shown any impediments to the filing of his habeas petition in
this court, that his relief relies on a newly-recognized
constitutional right, or that there is a newly-discovered factual
predicate upon which relief should be granted, only
28 U.S.C. § 2244(d)(1)(A), which starts the clock on the date of a final
decision, is applicable here. However, the one-year limit on
filing habeas petitions is tolled during "[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." Id.
In the instant action, Ingram's conviction was affirmed by the
Illinois Appellate Court on November 16, 2001, and Ingram admits
that he did not file a petition for leave to appeal with the
Illinois Supreme Court during the state's 21-day grace period.
(Resp. 1). Therefore, the finality of Ingram's conviction was not
delayed for the 90-day period for filing a petition for writ of
certiorari in the United State Supreme Court, and Ingram's
conviction became final on December 7, 2001. See Gutierrez v.
Schomig, 233 F.3d 490, 491 (7th Cir. 2000) (holding that the
statute of limitations under Section 2244(d) is not tolled during
the 90-day period to file a petition for writ of certiorari if
the petitioner does not actually file such a petition). This
means that, in regard to Ingram's petition, the clock started
running for the purposes of Section 2244(d) on December 7, 2001,
and continued running until Ingram filed for state post-conviction relief on July 19, 2002,
for a total of 224 days.
The statute of limitations began to run again in this case on
October 7, 2003, when the Illinois Supreme Court denied Ingram's
petition for leave to appeal the denial of post-conviction
relief. The statute of limitations did not stop running until
December 13, 2004, when Ingram filed a proper petition for writ
of habeas corpus in this court. Given that Section 2244(d)
states that only "a properly filed application for State
post-conviction or other collateral review" can toll the statute
of limitations, Ingram's October 2004 petition in this court,
which was dismissed for failing to exhaust state remedies, did
not stop the clock. 28 U.S.C. § 2244(d)(2) (emphasis added).
Therefore, an additional 433 days has run under the statute of
limitations, for a total of 657 days. This is well outside of the
one-year statute of limitations.
On a final note, Ingram argues that the "ends of justice"
require this court to deny the motion to dismiss, despite the
fact that the statute of limitations has passed. Ingram, however,
has not alleged any circumstances out of his control that would
merit applying the doctrines of equitable tolling or equitable
estoppel. See Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir.
2004) (stating that "[e]quitable tolling is proper when
extraordinary circumstances outside of the petitioner's control
prevent timely filing of the habeas petition"); Williams v.
Sims, 390 F.3d 958, 959 (7th Cir. 2004) (defining equitable
estoppel as "conduct by the defendant that prevents the plaintiff
from suing within the statutory period"). Ingram has also failed
to make any showing of actual innocence that could lead this court to
waive the statute of limitations. See Gildon, 384 F.3d at 887
(holding that for a court to allow a claim of actual innocence to
overcome a statute of limitations under Section 2244(d), "a
petitioner would have to show some action or inaction on the part
of the respondent that prevented him from discovering the
relevant facts in a timely fashion, or, at the very least, that a
reasonably diligent petitioner could not have discovered these
facts in time to file a petition within the period of
limitations"). For these reasons, Respondent's motion to dismiss
Based on the foregoing analysis, we grant Respondent's motion
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