The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Calvin Trice ("Trice") filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254, wherein he complains that the trial court improperly admitted an anonymous 911 tape recording into evidence, the State used coerced testimony and withheld witness information, and his defense counsel rendered ineffective assistance at trial. Respondent Warden Donald Hulick ("Hulick") moves to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1)(A). On January 10, 2007, this Court questioned the timeliness of Trice's petition under 28 U.S.C. § 2244(d)(1). The Court, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, ordered Trice to show good cause in writing as to why the petition should not be dismissed as time-barred, which he filed on February 6, 2007. In response, Hulick filed the instant motion. For the reasons set forth below, Hulick's motion to dismiss is granted and Trice's petition is dismissed with prejudice.
On May 1, 1987, Trice was convicted of first degree murder of police officer Rudolph Schaeffer, armed robbery, and concealment of homicidal death.*fn1 (Pet. 1; Resp't Ex. A, Cert. Stmt. 4; People v. Trice, 577 N.E.2d 1195, 1197 (Ill. App. Ct. 1991).) On January 14, 1991, the conviction was affirmed on direct appeal by the Illinois Appellate Court. Trice, 577 N.E.2d at 1205. Trice then filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, which was denied on December 4, 1991. (Resp't Ex. C, PLA in People v. Trice, No. 72669; Resp't Ex. D, People v. Trice, 584 N.E.2d 138 (Table) (Ill. Dec. 4, 1991).) Trice did not file a petition for writ of certiorari to the United States Supreme Court. Allowing him the time within which he could have filed such a petition pursuant to 28 U.S.C. § 2244(d)(1)(A), Trice's criminal judgment became final on March 4, 1992, 90 days after judgment and the date on which his time for filing a petition for certiorari expired. Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002).
On January 17, 2001,*fn2 Trice filed a petition for post-conviction relief in the Circuit Court of Cook County, Illinois, which was dismissed on April 13, 2001. (Resp't Ex. A, Cert. Stmt. 5; Resp't Ex. E, Pet. Relief 1; Resp't Ex. F, April 13, 2001 Order.) The Illinois Appellate Cout affirmed dismissal on December 13, 2002 and, on June 4, 2003, the Illinois Supreme Court denied Trice's PLA. (Resp't Ex. G, Dec. 12, 2002 Order; Resp't Ex. H, PLA in People v. Trice; Resp't Ex. I, People v. Trice, 792 N.E.2d 313 (Table) (Ill. June 4, 2003).) Prior to the denial of this PLA, Trice also filed a petition for relief from judgment on May 28, 2003. (Pet. 4; Resp't Ex. A, Cert. Stmt. 6.) The trial court dismissed the petition on July 28, 2005 and Trice did not appeal. (Pet. 4; Resp't Ex. A, Cert. Stmt. 9.) On November 28, 2006, Trice filed the instant petition.*fn3 (Pet. 8.)
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "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." 28 U.S.C. § 2244(d)(1). The one-year period runs from the latest of several dates, including: (1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) the date on which a state-created impediment to filing that was either unconstitutional or in violation of the laws of the United States was removed; (3) the date on which a new constitutional right was recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id. If the petitioner's conviction became final before the AEDPA's enactment on April 24, 1996, the petitioner is given a one-year grace period for filing a federal habeas petition, that is, April 23, 1997. Jones v. Bertrand, 171 F.3d 499, 500 (7th Cir. 1999) (citing Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320, 138 L.Ed. 2d 481, 117 S.Ct. 2059 (1997)). Additionally, "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 the one-year statute of limitations. 28 U.S.C. § 2244(d)(2).
In the instant case, Trice's conviction became final on March 4, 1992, before the effective date of the AEDPA. Because his conviction became final before enactment of the AEDPA, Trice was required to file his petition by April 23, 1997 under § 2244(d)(1). As noted above, Trice filed a post-conviction petition for relief on January 17, 2001, which remained pending until the Illinois Supreme Court denied his PLA on June 4, 2003. Prior to this denial, Trice also filed a petition for relief from judgment on May 28, 2003, which remained pending until the trial court's dismissal on July 28, 2005. Thus, under 28 U.S.C. § 2244(d)(2), the limitations period was tolled from January 14, 2001 through July 28, 2005. However, this does not account for the period between April 24, 1996 and January 17, 2001, which would make any petition filed after April 23, 1997 untimely. Nor does it account for the time lapse between July 29, 2005 and November 28, 2006. Recognizing these gaps, Trice submits the following four arguments to support his position that the petition is not time-barred: (1)Trice is entitled to equitable tolling; (2) the petition is timely under 28 U.S.C. § 2244(d)(1)(B); (3) the petition is timely under 28 U.S.C § 2244(d)(1)(C); (4) the time-barred petition is subject to the "actual innocence" exception.
Trice initially contends that he is entitled to equitable tolling with respect to both of the time lapses unaccounted for intervals. A court may toll the limitations period under the doctrine of equitable tolling if the petitioner can establish that: (1) he has been pursuing his rights diligently; and (2) some extraordinary circumstance far beyond his control stood in the way of timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 419, 125 S.Ct. 1807, 161 L.Ed. 2d 669 & n.8 (2005); Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003). While the Seventh Circuit has acknowledged that equitable tolling may apply to § 2244, the principle is only applied in exceptional circumstances. Anou Lo v. Endicott, 506 F.3d 572, 576 (7th Cir. 2007); see also Johnson v. Chandler, 224 Fed. Appx. 515, 519 (7th Cir. 2007) ("[W]e have yet to identify a factual circumstance so extraordinary that it warrants equitable tolling."). With respect to the April 1996 through January 2001 period, Trice claims that he is entitled to equitable tolling because his attorney held his legal papers, but failed to file any petitions on Trice's behalf. With respect to the July 2005 through November 2006 period, Trice maintains that he did not have access to his legal documents because prison officials falsely accused Trice of committing certain prison infractions that resulted in Trice's placement in segregation. In addition, Trice asserted that prison officials subsequently denied him access to legal materials when they effected two different prison transfers.
Setting aside the issue of whether Trice "diligently" pursued his rights, as required by Pace, Trice's allegations regarding the 1996 through 2001 period do not rise to the level of "extraordinary circumstances" warranting equitable tolling. According to Trice, in November 2006, Trice gave his attorney all his legal documents. (Pet'r Mem. Show Cause 2-3.) For the next three and one-half years, Trice's attorney held the documents, but failed to file any petitions on Trice's behalf. (Pet'r Mem. Show Cause 3.) Trice did not reacquire the documents until June 2000, when Trice's brother went to the attorney's office, obtained the documents, and sent them to Trice. (Id.) That Trice's attorney failed to act on Trice's behalf is insufficient to trigger equitable tolling. "Attorney misconduct, whether labeled negligent, grossly negligent, or willful, is attributable to the client." Modrowski, 322 F.3d at 968. Nor is Trice's allegation that his counsel retained Trice's legal documents persuasive. Trice, as the petitioner, "bears the ultimate responsibility for [his] filings." Id. Trice had an obligation to not only "vigilantly oversee the actions of [his attorney]," but also "to take matters into [his] own hands," if necessary. Id. There is no indication that Trice attempted to retrieve his documents prior to June 2000 or that counsel continued to withhold the documents despite a request to return the materials. There is also no indication that Trice took any affirmative acts in support of his petition. Rather, Trice simply asserts he is entitled to equitable tolling because his attorney retained the documents until Trice's brother retrieved them. This Court will not treat Trice's lawyer as a source of interference. See Johnson v. McBride, 381 F.3d 587, 589-90 (7th Cir. 2004) ("No one interfered with Johnson's ability to pursue collateral relief in a timely fashion. He wants us to treat his own lawyer as the source of interference, but lawyers are agents. Their acts (good and bad alike) are attributed to the clients they represent. The sixth amendment creates an exception to this principle for criminal prosecutions. Once trial and direct appeals have run their course, however, neither the sixth amendment nor federal law guarantees effective assistance of counsel for collateral proceedings, not even in a capital case.") (internal citations omitted). Trice has not established extraordinary circumstances entitling him to equitable tolling of the limitations period. Accordingly, Trice's petition, filed after April 23, 1997, is untimely under 28 U.S.C. § 2244(d)(1)(A).
Even if the statute of limitations remained equitably tolled due to the actions of Trice's attorney, Trice's petition would still be untimely 28 U.S.C. § 2244(d)(1)(A). As noted above, Trice did not have access to his legal documents from November 1996 through June 2006. Under the AEDPA, the limitations period began to run on April 23, 1996. Thus, at least six months, or 184 days, elapsed between initiation of the limitations period (April 23, 1996) and initiation of the requested equitable tolling period (November 1, 1996). According to Trice, equitable tolling of the limitations period ceased when he reacquired his documents in June 2000. Thus, he had six months from receipt of the documents to file his habeas petition or otherwise toll the limitations period, or December 2000. Trice filed his initial petition for post-conviction relief on January 17, 2001. Thus, under a generous reading of the facts, at least another 200 days (July 1, 2000 through January 16, 2001) elapsed before the limitations period was subsequently tolled. Neither party has provide this Court with facts indicating that the limitations period was tolled, through statutory or equitable principles, from July 1, 2000 through January 16, 2001. Thus, even if Trice is entitled to equitable tolling while counsel retained Trice's legal documents, Trice's petition would remain time-barred.
For the reasons stated above, the instant petition is not subject to equitable tolling for the April 1996 through January 2001 period. Under § 2244(d)(1)(A), Trice was required to file his petition by April 23, 1997. In light of this determination, the Court need not address Trice's arguments in ...