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Shaw v. Hulick

October 23, 2006

ROGER SHAW, PETITIONER,
v.
DON HULICK, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER*fn1

Petitioner Roger Shaw has brought a pro se petition for a writ of habeas corpus seeking to overturn his 1990 conviction for first degree murder. Respondent has moved to dismiss the petition as untimely under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d) ("AEDPA"). For the reasons set forth below, the motion is granted.

BACKGROUND

On March 30, 1990, petitioner pled guilty in the Circuit Court of Will County, Illinois, to first degree murder and home invasion. He was sentenced to a term of 80 years incarceration for the murder conviction and a concurrent term of 30 years incarceration for the home invasion conviction.

After being sentenced, petitioner filed a motion to withdraw his guilty plea or modify his sentence, which was denied. He appealed that denial to the Illinois Appellate Court, which found that his trial attorney had not properly followed Illinois Supreme Court Rules in filing the post-plea motion, and thus remanded for a new hearing. On remand, the motion was again denied on January 27, 1992. Petitioner's appeal was denied on September 17, 1992. Petitioner did not timely file a petition for leave to appeal ("PLA") to the Illinois Supreme Court, so his direct appeal process ended after the appeal was denied by the appellate court. Nearly four years later, on October 4, 1996, petitioner moved to file a late PLA, which motion was denied on February 10, 1997.

On September 13, 1996, petitioner filed his initial petition for post-conviction relief. It was dismissed on September 24, 1996. Petitioner appealed, and after years of litigation, withdrew that appeal on March 2, 1999. He then filed a PLA which was denied on June 2, 1999. In the interim, on May 4, 1999, he also filed an Amended Motion for Review of Plain Error with the Illinois Supreme Court, which was denied on May 12, 1999.

On September 23, 1996, shortly after filing his initial post-conviction petition, petitioner also filed a motion for leave to file a petition for writ of habeas corpus with the Illinois Supreme Court. That motion was denied on December 16, 1996.

While his post-conviction appeal was pending, petitioner filed additional motions in the circuit court. First, he filed a petition for relief from judgment which was denied on November 11, 1998. Then, on December 13, 1999, he filed a motion for review of plain error which he then withdrew before it could be addressed.

On April 23, 1999, petitioner filed a second post-conviction petition and, on June 10, 1999, a second petition for relief from judgment. Both were denied as untimely or successive on June 27, 1999. He appealed from that denial order, and the Illinois Appellate Court affirmed on January 25, 2001. Petition for rehearing was denied on February 21, 2001. No PLA was filed.

Petitioner then moved to Vacate, Modify or Correct a Void Judgment in the circuit court. The court construed the motion as a post-conviction petition and dismissed it on May 17, 2001. Petitioner appealed and the decision was affirmed on May 9, 2002. No PLA was filed.

On May 23, 2002, petitioner filed a "Renewed Motion to Vacate Guilty Plea" in the circuit court. On June 24, 2002, he moved to withdraw that motion and to file a "Combined Motion to Vacate Guilty Plea and Judgment of Conviction." On June 21, however, the court had already dismissed the initial motion as untimely, and then dismissed the latter motion as moot on June 27, 2002.

Then, on February 2, 2003, petitioner filed a motion for "De Novo Review of Illegal Conviction," which was denied on March 26, 2003. Petitioner appealed and the appellate court affirmed on September 28, 2004. Petitioner's PLA was denied on February 17, 2005.

On April 22, 2005, petitioner then moved for a new trial, which was denied. Petitioner appealed, but withdrew the appeal on February 9, 2006, and the case was dismissed on March 6, 2006. ...


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