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Duke v. Budz

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


December 19, 2006

TERRY DUKE, PETITIONER,
v.
TIMOTHY BUDZ, RESPONDENT.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

In response to this Court's December 6, 2006 memorandum order ("Order"), counsel for federal habeas petitioner Terry Duke ("Duke") has filed an Amended Supplement to Memorandum in Support of Petition for Writ of Habeas Corpus.*fn1 Counsel's convoluted explanation appears to leave open a serious question as to the Petition's timeliness--to choose only one example, the Illinois Appellate Court's September 29, 2003 order in its Case No. 1-02-3885 dismissed Duke's attempted interlocutory appeal as outside of the Appellate Court's jurisdiction--in that respect, see such cases as Pace v. DiGugliemo, 544 U.S. 408 (2005), narrowly construing the term "properly filed" within the meaning of the tolling provision of 28 U.S.C. §2244(d)(2).*fn2

But this Court will not itself seek to explore the maze of Duke's travels through the state court system.*fn3 Instead the Illinois Attorney General's Office is ordered, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, to file a response to the Petition. Because any determination that the Petition is indeed untimely would obviate the need for addressing its merits, that initial response shall focus only on the subject of limitations under Section 2244(d). And because that poses only a question of law that should require no inquiry into the factual predicate for the Petition, the response is ordered to be filed on or before January 4, 2007.


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