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Harkless v. Weger

August 23, 2007

RICHARD HARKLESS, PETITIONER,
v.
TOM WEGER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on Petitioner Richard Harkless' Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and the Respondent's Motion to Dismiss. For the reasons set forth below, the Motion [#13] is GRANTED, and § 2254 Petition [#1] is DISMISSED.

BACKGROUND

On December 10, 1992, Petitioner Richard Harkless ("Harkless") was charged with two counts of first degree murder. In 1993, Harkless plead guilty pursuant to a plea agreement in the Circuit Court of Rock Island County and was sentenced to 35 years of imprisonment. Harkless filed a direct appeal, and on August 11, 1994, the appellate court granted Harkless' motion to remand the cause to circuit court to permit Harkless to move for reconsideration of his sentence. Harkless' motion for reconsideration was denied in August 1995. Harkless filed a second direct appeal, challenging his sentence as excessive. The appellate court affirmed on June 11, 1996, and Harkless did not file a petiton for leave to appeal (PLA) to the Illinois Supreme Court.

On January 4, 2000, Harkless filed his first state post-conviction petition, which was promptly denied on January 21, 2000. Harkless filed a second state post-conviction petition on April 18, 2001, which the circuit court summarily dismissed as untimely. As the Illinois Supreme Court had recently held that a trial court may not dismiss a post-conviction petition at the summary dismissal stage based on timeliness, the appellate court remanded for further proceedings.

On remand, Harkless filed an amended post-conviction petition, which the circuit court dismissed as untimely. Harkless again appealed, and the appellate court affirmed on March 4, 2005. Harkless filed a PLA in the Illinois Supreme Court, which was denied on May 25, 2005. Harkless did not seek further review.

Harkless signed and mailed the instant federal habeas corpus petition on November 21, 2006.

Harkless' petition was erroneously filed in the Northern District of Illinois, and was transferred to this District on January 1, 2007. Harkless argues that his identity, confession, and certain physical evidence should have been suppressed at trial. According to Harkless, he and his two co-defendants, R.E. and K.M., all of whom were minors at the time of arrest, gave statements to the police outside the presence of their attorneys or legal guardians, in violation of their due process rights. Therefore, his confession, as well as certain physical evidence implicating him, and his "very name" should have been suppressed as "fruits of the poisonous tree." Harkless acknowledges that not all of these grounds were previously raised before the state courts because of the "newly discovered evidence" that the statements of his co-defendants were suppressed for this reason, "the result of which was their inevitable acquittal and/or not guilty by jury trial." Petition, at 5. The Respondent has filed a Motion to Dismiss, arguing that the Petition is untimely. Harkless has filed a Response to that Motion, and this Order follows.

DISCUSSION

There are statutory time limits which govern whether a district court can entertain a petition for writ of habeas corpus. The present case is covered by 28 U.S.C. § 2244, which states in relevant part:

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 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 was newly recognized by the Supreme Court and made ...


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