The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
Pending before the Court are Petitioner Gordon Oaks' Petition for Writ of Habeas Corpus (d/e 1) (Petition) and Respondent Gregory Firkus' Motion to Dismiss (d/e 6). Oaks is currently serving a twenty-five year sentence in the Illinois Department of Corrections following his plea of guilty to one count of unlawful delivery of a controlled substance in violation of 720 ILCS 570/401(a)(2)(B). His Petition seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the Petition, asserting that it is untimely. For the reasons set forth below, the Motion to Dismiss is allowed, and the Petition is dismissed.
In October 1999, Oaks was charged in Illinois state court with two counts of unlawful delivery of a controlled substance in violation of 720 ILCS 570/401(a)(2)(B). In March 2000, Oaks pled guilty to one count, in exchange for the dismissal of the second count. Oaks was sentenced in May 2000, to twenty-five years imprisonment. Oaks then filed a motion to reconsider his sentence and a motion to withdraw his guilty plea. After hearings were held on both motions, the motions were denied.
Oaks then filed an appeal, asserting that the sentence was excessive and that the trial judge erred in considering the harm to society and the amount of cocaine involved as aggravating factors. The Illinois Appellate Court for the Fourth District affirmed in an Order dated February 5, 2002. Oaks did not file a Petition for Leave to Appeal to the Illinois Supreme Court.
Meanwhile, in March 2001, Oaks filed a Petition for Post Conviction Relief in state court pursuant to 725 ILCS 5/122-1. He filed an Amended Petition for Post-Conviction Relief on May 2, 2001. The trial court dismissed the petitions as frivolous and patently without merit. Oaks appealed. The Illinois Appellate Court for the Fourth District affirmed in an Order dated December 18, 2002, holding that Oaks failed to raise any issues in his post-conviction petition that could not have been raised earlier.
Oaks filed a Petition for Leave to Appeal, which the Illinois Supreme Court denied on April 2, 2003.
In September 2003, Oaks filed a Petition for Relief from Judgment pursuant to 735 ILCS 5/2-1401, with an accompanying memorandum of law, challenging the denial of his Petition for Post-Conviction Relief. The trial court summarily dismissed the Petition for Relief in September 2003. Oaks appealed, arguing that § 2-1401 does not authorize the summary dismissal of petitions brought under it.
In December 2003, while his appeal of the § 2-1401 dismissal was pending, Oaks filed a Second Subsequent Pro Se Post-Conviction Petition. The trial court dismissed the Second Petition, finding Oaks' claims to be frivolous, patently without merit, and barred by the doctrines of waiver and res judicata. Oaks appealed.
On October 4, 2004, the Illinois Appellate Court for the Fourth District issued two separate orders on Oaks' appeals. In the first, Case No. 4-04-0044, the Court affirmed the dismissal of the Second Subsequent Pro Se Post-Conviction Petition after addressing its merits. Justice Cook filed a dissenting opinion, noting his belief that it was "completely backwards for this case to be dealt with summarily in the trial court, but then for counsel to appear on both sides in this court, and for us to address the merits of the case in a 15-page order." Motion to Dismiss, Ex. I, p. 16. Justice Cook advocated remanding the case for further consideration at the trial level. The second order, in Case No. 4-03-0864, affirmed the summary dismissal of Oaks' § 2-1401 petition. Justice Cook again filed a dissenting opinion, asserting that summary dismissal was inappropriate given his belief that the petition was not frivolous. Oaks filed a Petition for Leave to Appeal to the Illinois Supreme Court in Case No. 4-04-0044, which was denied on September 29, 2005.
Oaks executed the instant Petition on September 22, 2006. It was filed by this Court on October 2, 2006. The Petition asserts the following three grounds for relief: (1) denial of effective assistance of counsel at trial, post-trial, and during appeal; (2) denial of the right to appeal; and (3) denial of due process based on the summary dismissal of his post-conviction petitions. Respondent asserts that the Petition should be dismissed with prejudice because it is untimely. The Court agrees.
A federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under 28 U.S.C. § 2244(d)(1):
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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 ...