The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Respondent Roger Zimmerman's Motion to Dismiss (d/e 10). Petitioner Charles Palmer mailed his Petition for Habeas Corpus Relief (d/e 2) on September 27, 2006. 28 U.S.C. § 2254. Zimmerman now moves to dismiss the Petition on the grounds that it is barred by the statute of limitations. 28 U.S.C. § 2244 (d)(1)(A). Zimmerman is correct, and this case is, therefore, dismissed.
Palmer was convicted of first-degree murder and sentenced in Macon County, Illinois, Circuit Court in April 2000. Motion to Dismiss, Exhibit A, People v. Palmer, No. 4-00-0634, Rule 23 Order Entered September 25, 2001, at 1. The conviction was affirmed by the Illinois Appellate Court for the Fourth District on September 25, 2001. Id. Palmer then filed a Petition for Leave to Appeal (PLA) in the Illinois Supreme Court. The Illinois Supreme Court denied his PLA on February 6, 2002. Motion to Dismiss, Exhibit B, Denial of PLA in People v. Palmer, No. 92669. Palmer filed a state post-conviction petition on August 18, 2002. Motion to Dismiss, Exhibit C, PLA in People v. Palmer, No. 99550, at 6.*fn1 The state petition was dismissed, and the dismissal was appealed by Palmer. The dismissal was affirmed by the Appellate Court, and Palmer filed a PLA with the Illinois Supreme Court, which was denied on September 29, 2005. Motion to Dismiss, Exhibit E, Denial of PLA in People v. Palmer, No. 99550. Palmer mailed this Petition on September 27, 2006.
The statute of limitations for a § 2254 habeas petition states:
(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 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 that 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 the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Based on the claims in Palmer's Petition, the statute began to run on the date his judgment of conviction became final. 28 U.S.C. § 2244(d)(1)(A). For purposes of § 2244, his conviction became final ninety days after the Illinois Supreme Court denied his PLA, on February 6, 2002, or May 7, 2002. The ninety days represented the time that he had to file a petition for a writ of certiorari with the United States Supreme Court. See Anderson v. Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002).
Beginning on May 7, 2002, the statute ran until Palmer filed his state post-conviction petition on August 18, 2002, 104 days later.*fn2 The statute was tolled during the time that his state post-conviction petition was pending. 28 U.S.C. § 2244(d)(2). Palmer's state post-conviction petition was no longer pending after September 29, 2005, when the Illinois Supreme Court denied his PLA. Palmer then had 261 days left, until June 13, 2006, on the one-year statute to file his Petition. He did not mail his Petition until September 27, 2006, after the statute of limitations ran. His Petition is, thus, barred.
Palmer argues that his state post-conviction petition tolled the statute until ninety days after the Illinois Supreme Court denied his PLA because he had ninety days to file a petition for a writ of certiorari with the United States Supreme Court. That is incorrect. The statute of limitations is not tolled during the time in which a petitioner could have filed, but did not, a petition for certiorari to review the denial of state post-conviction relief. Jones v. Hulick, 449 F.3d 784, 788 ...