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United States ex rel Smith v. Hulick

July 9, 2007

UNITED STATES OF AMERICA, EX. REL. MICHAEL SMITH, PETITIONER,
v.
DON HULICK, RESPONDENT.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM, OPINION AND ORDER

Michael Smith has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 to vacate his conviction for aggravated criminal sexual assault, home invasion, and armed robbery. This case is before the court on the motion of Respondent, Don Hulick, to dismiss Petitioner's petition as time-barred. For the reasons provided in this Memorandum Opinion and Order, the court grants the motion and terminates this case.

BACKGROUND

On April 24th, 1997, Petitioner was convicted of aggravated criminal sexual assault, home invasion, and armed robbery after a jury trial in the Circuit Court of Cook County. The trial court sentenced the Petitioner to sixty years of imprisonment for the assault and concurrent forty-year terms of imprisonment for the home invasion and armed robbery, each to run consecutively to the assault sentence. Petitioner appealed his conviction, and the Illinois Appellate Court affirmed the conviction on March 2, 1999. Petitioner concedes that he did not appeal his conviction to the Illinois Supreme Court.

On July 27th, 1999, Petitioner filed a petition for relief under the Illinois Post-Conviction Hearing Act. After the post-conviction trial court dismissed the petition in May of 2001, Petitioner appealed to the Illinois Appellate Court. Petitioner later moved to voluntarily dismiss his appeal. This was granted, and the case was remanded to the post-conviction trial court. On remand, the Petitioner's appointed counsel filed a supplemental petition on his behalf in December of 2001. The trial court dismissed the supplemental petition on the state's motion, and Petitioner again appealed. The Illinois Appellate Court affirmed the post-conviction trial court's judgment on October 25, 2004, and the Illinois Supreme Court denied leave to appeal on March 30, 2005.

Though the date is not clear from the record, at some point after the Illinois Supreme Court's denial of leave to appeal from the post-conviction trial court ruling, Petitioner filed a petition for writ of certiorari in the United States Supreme Court. The Supreme Court denied certiorari on October 3, 2005. On May 30, 2006, the Petitioner filed his federal habeas petition.

DISCUSSION

In his habeas petition, the Petitioner claims that: (1) the trial court erred when it ordered extended term and consecutive sentencing; (2) he was denied his Sixth Amendment right to effective representation of counsel; (3) prosecutorial misconduct denied him a fair trial; and (4) his conviction and sentence is trial court error and should be void. In the motion to dismiss, Respondent argues that these claims are untimely and, therefore, must be dismissed. Respondent contends the following in regard to the running of the statute of limitations: it began to run when the conviction became final on March 23, 1999, and ran 125 days until July 27, 1999. It tolled from that date due to the pendency of the post-conviction proceedings until March 30th, 2005 when those proceedings became final. It then ran the remaining 240 days until all 365 days had expired on November 25, 2005. The primary question raised here is when the statute of limitations began running, and whether additional tolling is appropriate.

28 U.S.C. §2244 (d)(1) imposes a one-year statute of limitations for filing a habeas petition after the decision becomes final. The statute reads:

1. A one-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 of filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the application 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 ...


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