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McKinney v. Hulick

March 31, 2008

RICKY CORTEZ MCKINNEY, PETITIONER,
v.
DONALD HULICK, RESPONDENT.



The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge

MEMORANDUM AND ORDER

This matter comes before Court on Respondent's Motion to Dismiss (Doc. 17) the petition for writ of habeas corpus brought by Petitioner pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the motion is GRANTED, and the case DISMISSED.

BACKGROUND

After a jury trial, Petitioner was convicted of first-degree murder on July 2, 1998, in St. Clair County, Illinois, and was sentenced to a 26-year term of incarceration (Doc. 1, p. 5). Petitioner appealed; the Appellate Court of Illinois, Fifth District affirmed Petitioner's sentence and conviction on July 10, 2002 (Doc. 1, p. 5; Doc. 18, Exh. A). Petitioner filed a Petition for Leave to Appeal in the Illinois Supreme Court. The Illinois Supreme Court denied the Petition for Leave to Appeal on December 5, 2002 (Doc. 1, p. 5; Doc. 18, Exh. B). Petitioner sent a letter to the Clerk of the United States Supreme Court in July 2003 (Doc. 18, Exh. C). The Clerk responded by letter dated August 11, 2003, stating:

Your letter dated July 24, 2003, was received in this office on August 6, 2003, and is returned for the following reason: You may seek review of a decision only by filing a timely petition for writ of certiorari. The papers you submitted are not construed to be a petition for writ of certiorari. Should you choose to file a petition for writ of certiorari, you must submit the petition within the 90 day time limit allowed under Rule 13 of the Rules of this Court. A Copy of the Rules of this Court and a sample petition for a writ of certiorari are enclosed.

(Doc. 18, Exh. C). The record does not indicate that Petitioner made any additional attempt to file a petition for writ of certiorari (Doc. 18, Exh. C), and Petitioner himself states that he did not further attempt to seek relief from the United States Supreme Court because, "My time was running out to get my Post-Conviction in." (Doc. 1, p. 7).

Petitioner sought state post-conviction relief in the Circuit Court of St. Clair County on October 14, 2003 (Doc. 1, p. 7; Doc. 18, Exh. D). On September 30, 2004, Petitioner, with assistance of counsel, filed an amended petition for post-conviction relief (Doc. 1, p. 8; Doc. 18, Exh. E). On October 29, 2004, the Illinois State's Attorney filed a motion to dismiss the amended petition for post-conviction relief, arguing that the petition was not timely filed (Doc. 18, Exh. F). On March 31, 2005, the trial court granted the State's motion to dismiss the petition as untimely and denied as moot the request for leave to amend the petition (Doc. 1, pp. 8-9; Doc. 18, Exh. G). Petitioner's appointed counsel filed a motion to withdraw in the Appellate Court of Illinois, Fifth District, arguing there was no merit to the appeal. In a written opinion, the Appellate Court granted counsel's request to withdraw and affirmed the judgment of the circuit court on September 26, 2006 (Doc. 1, 9; Doc. 18, Exh. H). The Appellate Court, after a lengthy analysis, held that the petition for post-conviction relief was untimely and that none of the Petitioner's arguments in support saved the petition. The Court held specifically that Petitioner's delay in filing was the result of his own culpable negligence, and therefore the delay was not excusable under state law (Doc. 18, Exh. H). Petitioner filed a Petition for Leave to Appeal, which the Supreme Court of Illinois denied on January 24, 2007 (Doc. 1, p. 9; Doc. 18, Exh. I).

Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 6, 2007 (Doc. 1).*fn1 Petitioner raises seven grounds for relief: 1) that the Centreville, Illinois, Police Department drugged him between by July 3 and July 6, 1998, by tampering with his food and cigarettes; 2) that his trial counsel was ineffective for not presenting any evidence that his confession was coerced and that he was involuntarily drugged by the Centreville, Illinois, Police Department; 3) that his trial counsel was ineffective for failing to introduce into evidence the victim's criminal records after Petitioner argued that he acted in self-defense, 4) that his trial counsel was ineffective for failing to object to the perjured testimony of the State's witnesses; 5) that trial counsel was ineffective for not seeking polygraph examinations of Petitioner and Police Chief McCall; 6) that trial counsel was ineffective for failing to subpoena police records regarding a federal investigation of abuse of suspects; 7) that trial counsel was ineffective by failing to effectively question a defense witness; 8) that trial counsel was ineffective for failing to argue to the jury that two Miranda waivers were inconsistent; and 9) that trial counsel was ineffective for failing to call additional defense witnesses (Doc. 1, pp. 9-10; 13-20).

On May 4, 2007, Respondent filed the instant Motion to Dismiss, arguing that the petition is untimely because it was not filed with in the one-year period of limitations prescribed by 28 U.S.C. § 2244(d). Specifically, Respondent argues that the petition is untimely because it was filed four years after his conviction became final, and that none of the various tolling provisions save the petition from being time-barred (Doc. 17).

In response Petitioner alleges that any error in his post-conviction applications for review were based on outdated information received from the Menard Correctional Center law library or from ineffective assistance of his state-appointed post-conviction counsel (Doc. 23 at 3-4). Petitioner argues that his petition should, therefore, not be found to be untimely filed.

ANALYSIS

It is unnecessary for the Court to hold an evidentiary hearing on this matter, as it can be considered on the briefs and evidence supplied by the parties. Petitioner, an inmate in state custody, seeks habeas corpus relief pursuant to 28 U.S.C. §2254, which is codification of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). This code section explains the prerequisites to habeas relief, which include, inter alia, the exhaustion of state court remedies and a showing that the state courts erred in either the law applied to the petitioner's claims or the facts relied upon in making a legal decision. Under 28 U.S.C. §2244(d), a habeas petition must be filed within strict time limitations:

(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 ...


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