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Nunez v. Robert

January 24, 2006

JOSE NUNEZ, PETITIONER,
v.
BRADLEY J. ROBERT, RESPONDENT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM & ORDER

I. INTRODUCTION

On February 24, 2004, petitioner Jose Nunez filed this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, with this Court. (Doc. 1.) On June 10, 2005, Respondent filed a motion to dismiss. (Doc. 9.) In consideration of Respondent's motion to dismiss, Magistrate Judge Donald G. Wilkerson issued a Report and Recommendation (the "Report"). (Doc. 12.)

The Report first recommends that the Court substitute Bradley J. Robert for respondent Edwin J. Bowen, as Robert is currently the warden of Centralia Correctional Center, where Nunez is assigned, and such substitution is proper pursuant to Rule 2(a) of the Rules Governing § 2254 cases. Further, the Report recommends granting Respondent's motion to dismiss and thereby dismissing Nunez's Petition. The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" within ten days of service. Nunez filed timely objections to the Report, which necessitates a de novo review be conducted by this Court. For the following reasons, the Court affirms the Report.

II. BACKGROUND

A. FACTUAL HISTORY

To briefly recount the facts relevant for this review, Nunez was convicted on September 29, 1993, by a jury in St. Clair County Circuit Court, of controlled substance trafficking and sentenced to 34 years imprisonment and a $1,575,000 fine was also imposed. (Doc. 1, pp. 4-5; see also Doc. 9, Ex. C, p. 1.) Nunez proceeded to appeal his conviction to the Illinois Appellate Court, Fifth District, which affirmed his conviction in an order dated May 3, 1996. (Doc. 9, Ex. A.) Nunez thereafter made no further attempt to appeal the Fifth District's decision to the Illinois Supreme Court. (Doc. 1, p. 5, ¶ 10c.) However, Nunez states that the reason he did not file an appeal with the Illinois Supreme Court is because he filed a post-conviction petition with the St. Clair County Circuit Court, claiming that his trial counsel was ineffective, the trial court erred in denying a motion to suppress and challenging whether the Appellate Court's decision affirming his conviction was res judicata. (Doc. 1, p. 5-6, ¶¶ 10d and 11A4.)

The St. Clair County Circuit Court denied Nunez's post-conviction petition in an order dated November 20, 2000. (Doc. 1, p. 6-7, ¶¶ 11A6 and 11A7; see also Doc. 9, Ex. B.) Again, Nunez appealed the denial of his post-conviction petition to the Illinois Appellate Court, Fifth District, which was also affirmed in an order dated October 3, 2002. (Doc. 9, Ex. C.) Therefore, Nunez appealed the Fifth District's decision to the Illinois Supreme Court, which also subsequently affirmed the denial of his post-conviction petition in an order dated February 5, 2003. People v. Nunez, 787 N.E.2d 178 (table)(Ill. 2003) (see also Doc. 9, Ex. D - Case No. 95145.)

B. PROCEDURAL HISTORY

Nunez filed his Petition on February 11, 2005. (Doc. 11, § 3.) Specifically, Nunez raises the following issues: (1) his Fourth Amendment rights were violated; (2) ineffective assistance of trial counsel and (3) whether the appellate court's ruling on his conviction appeal should be considered res judicata. (Doc. 1, pp. 9-10.) The Respondent's Motion to Dismiss asserts that Nunez's habeas Petition should be dismissed because he failed to comply with the limitations period set forth in 28 U.S.C. § 2244(d)(1). (Doc. 9, ¶¶ 11, 12.)

In particular, Respondent argues that Nunez's Petition should be dismissed with prejudice because it was filed more than one year after "the date on which the judgment became final by the conclusion of direct review . . . ." as stated in 28 U.S.C. § 2244(d)(1)(A). (Doc. 9, ¶¶ 11, 12.) In this case, Respondent asserts that the judgment "became final" on February 5, 2003, when the Illinois Supreme Court denied Nunez's post-conviction appeal. (Id.) If true, Nunez then had until February 5, 2004, to file his Petition. However, Respondent asserts that the earliest date Nunez's Petition can be considered filed is February 11, 2004.*fn1 (Id.)

Nunez filed an opposing response to Respondent's motion to dismiss, objecting to the assertion that his Petition is time barred under 28 U.S.C. § 2244(d). (Doc. 11.) Essentially, Nunez reasons that the principles of equitable tolling should apply in this case because he was provided incorrect advice regarding the filing date by a civilian paralegal and an inmate law clerk. (Id. at ¶¶ 2, 3.) Nunez alleges that when he went to the law library at the Centralia Correctional Center, he was specifically told by both the assigned inmate law clerk and civilian paralegal that he had to file his Petition within one year from the date the mandate was issued by the Illinois Supreme Court with respect to the denial of his post-conviction appeal; that date of issue being February 27, 2003. (Id. at ¶ 3.) Therefore, following their advice (albeit bad advice) as to this time frame, his Petition actually was timely, as it ostensibly was not due until February 27, 2004. Nunez claims that as he is not trained in the law, he had no other choice but than to rely on the assistance provided by the law clerk and paralegal regarding the time limit for filing his Petition; his delay was not deliberately intended. (Id. at ¶ 4.)

Nunez also filed objections to the Report. (Doc. 13.) His arguments mirror those contained in his opposing response to Respondent's motion to dismiss, with the exception that the name of Respondent should be changed to J. Mark Jones, as he is the new Warden of the Jacksonville Correctional Center, where Nunez is currently assigned. (Id. at ΒΆ 2.) Adhering to his equitable tolling defense, Nunez ...


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