The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner William Cannon ("Cannon") filed a pro se petition (the "Petition") for writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1986 conviction for armed robbery. Respondent Warden Eddie Jones ("Jones") moves to dismiss the Petition claiming that it is time-barred pursuant to 28 U.S.C. § 2244(d)(1)(A). (D.E. 9.) For the reasons set forth below, Cannon's Petition is dismissed with prejudice.*fn1
Cannon was convicted of armed robbery by a jury in the Circuit Court of Cook County on August 27, 1986 and sentenced to two concurrent terms of fifty years' imprisonment. Cannon appealed his conviction to the Illinois Court of Appeals and the conviction was affirmed on June 11, 1992. People v. Cannon, 244 Ill.App.3d 45 (1992). Cannon filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court which was denied on October 6, 1993. People v. Cannon, 152 Ill.2d 565 (1993). Cannon 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), Cannon's criminal judgment became final on January 4, 1994, ninety days after judgment and the date on which his time for filing a petition for certiorari expired. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002).
On April 29, 1994, four months after his conviction became final, Cannon filed for post-conviction relief in the Circuit Court of Cook County. The Circuit Court dismissed the petition as untimely (People v. Cannon, No. 85 CR 11964 (Ill. Feb. 22, 1996)) and the Appellate Court affirmed the decision on July 27, 1998. People v. Cannon, 297 Ill.App.3d 1117 (1998). Cannon then filed a PLA, which the Supreme Court of Illinois denied on December 2, 1998. People v. Cannon, 181 Ill.2d 576 (1998). On April 22, 1997, while his first post-conviction petition was awaiting appeal, Cannon filed his first petition for writ of habeas corpus in federal district court. The District Court dismissed the petition without prejudice for failure to exhaust state court remedies and granted Cannon leave to file a motion for its reinstatement within 63 days after the issuance of the Illinois Appellate Court's decision arising from the Circuit Court's denial of his first post-conviction petition. Cannon v. Page, No. 97 C 3053, 1997 WL 264310 (N.D. Ill. May 13, 1997). Cannon then moved for an enlargement of time with the federal court pertaining to the 63 days granted to reinstate his habeas petition, which was denied due to a Seventh Circuit decision that tolled the AEDPA's statute of limitations while Cannon pursued his post-conviction relief, thus increasing the timetable for bringing a habeas petition, making it unnecessary to grant an extension. U.S. ex rel. Cannon v. Page, No. 97 C 3053, 1999 WL 160268 (N.D. Ill. Mar. 10, 1999).
On June 7, 1999, Cannon filed his second post-conviction petition in the Circuit Court of Cook County, which was dismissed as untimely (People v. Cannon, No. 85 CR 11964 (Ill. July 1, 1999)) and the Appellate Court affirmed the decision on September 28, 2001. People v. Cannon, 324 Ill.App.3d 1128 (2001). Cannon then filed a PLA, which the Illinois Supreme Court denied on May 30, 2002. People v. Cannon, 199 Ill.2d 561 (2002). In the meantime, Cannon filed a second habeas petition in federal court, which was dismissed due to unexhausted state court remedies because of this second post-conviction which was still pending in the Illinois Appellate Court. U.S. ex rel. Cannon v. Cowan, No. 99 C 8027, 1999 WL 1212181 (N.D.Ill. Dec. 16, 1999). On July 12, 2002, Petitioner filed his third post-conviction petition in the Circuit Court of Cook County, which was dismissed as frivolous and patently without merit as the issues had been raised in the prior post-conviction petitions and dismissed as time-barred. (People v. Cannon, No. 85 C 11964 01 (Ill. Oct. 2, 2002)) and the Appellate Court affirmed on August 4, 2003. People v. Cannon, 343 Ill. App.3d 1283 (2003). Cannon filed a PLA, which the Illinois Supreme Court denied on January 28, 2004. People v. Cannon, 207 Ill.2d 609 (2004).
Upon Cannon's fourth attempt to file a post-conviction petition, the Circuit Court of Cook County denied him permission to file. People v. Cannon, No. 85 CR 11964 (Ill. June 16, 2004)). Cannon, through counsel, appealed this denial. Counsel moved to withdraw on the basis of the Court's decision in Pennsylvania v. Finley 481 U.S. 551 (1987). The Circuit Court granted counsel's motion finding no issues of arguable merit, a decision that the Appellate Court affirmed. People v. Cannon, No. 1-04-2264 (Ill.App.Ct. Jan.6, 2006). Cannon filed a PLA and the Supreme Court of Illinois denied on September 27, 2006. People v. Cannon, 221 Ill.2d 647 (2006). On September 26, 2007, Cannon filed the instant petition.
Under the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), a one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in state custody. See 28 U.S.C. § 2244(d)(1). This one-year period runs from the latest of several dates: (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 Unites 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, on April 23, 1997. See 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 (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, Cannon's conviction became final on January 4, 1994, over two years before the effective date of the AEDPA. Because his conviction was finalized before the enactment of the AEDPA, Cannon was required to file his petition by April 23, 1997 under § 2244(d)(1). Cannon filed his first post-conviction petition on April 29, 1994 and the Circuit Court dismissed it as untimely-- a decision affirmed by the Illinois Appellate Court. A "properly filed" petition excludes a post-conviction petition found to be untimely by the state courts. See Pace v. Digulielmo, 544 U.S. 408, 414 (2005); see also Gray v. Briley 305 F.3d 777, 779 (7th Cir. 2002). Thus, though Cannon filed four post-conviction petitions, the first petition was the only petition filed before the April 23, 1997 statute of limitations cut-off. Because that post-conviction petition was dismissed as untimely by the Circuit Court, a decision affirmed by the Appellate Court, Cannon's post-conviction petition was not "properly filed," and therefore, the statute of limitations period to file for habeas relief was not tolled.
Recognizing that his instant petition comes more than nine years after the statutory cut-off, Cannon submits the following four arguments to support his position that the petition is not time-barred: (1) the state court erred in holding that his first post-conviction petition was untimely, and therefore his petition was "properly filed" under 28 U.S.C. § 2244(d)(2); (2) he could not file for federal relief until all of his state court remedies were exhausted; because the first three post-conviction courts never heard his claims on their merit, he had to continue filing successive post-conviction petitions until his state claims were exhausted, thus resulting in the instant petition's delay; (3) equitable tolling applies due to his counsel's ineffective assistance; and (4) he is actually innocent so to be denied habeas relief would result in a fundamental miscarriage of justice. For the reasons stated, herein, Cannon's Petition for Writ of Habeas Corpus is time-barred.
Cannon asserts that the state court erred in holding that his first post-conviction petition, filed on April 29, 1994, was untimely, and therefore his petition was "properly filed" under 28 U.S.C. § 2244(d)(2) and should have tolled the statute of limitations for habeas relief. See 28 U.S.C. § 2244(d)(2). However, a federal habeas corpus petition is not a remedy for errors of state law. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions"). Under the AEDPA, a petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-405 (2000). In conducting habeas review, the federal court only looks to whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Accordingly, even if this Court were to assume that the state court erred when it dismissed Cannon's first post-conviction claim as untimely, the state court's ruling is not within this Court's proper scope of review because the post-conviction court's finding was premised on state law under the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1). See Dellinger v. Bowen 301 F.3d 758, 764 (7th Cir. 2002). Because the state court's decision that Cannon's post-conviction petition was untimely was based purely on state law, this Court cannot overrule the state court's decision. Thus, Cannon's petition was not "properly filed" and the statute of limitations was not tolled. See Rice v. Bowen, 264 F. 3d 698, 701 (7th Cir. 2001) (citing Freeman v. Page, 208 F. 3d 572, 576 (2000)) (explaining that a court determines a post-conviction petition to be properly filed by looking at how the state courts treated it; if the state court dismissed it for procedural flaws, such as untimeliness, then it was not properly filed).
Cannon moved for an enlargement of time in federal court between his first and second habeas petitions. During this process, the federal court advised Cannon that he had not yet exhausted his state court remedies, and that the statute of limitations would be tolled for all times that a state post-conviction proceeding was pending. U.S. ex rel. Cannon v. Page, No. 97 C 3053, 1999 WL 160268, at *5-6 (N.D.Ill. Mar. 10,1999). More important, the Court advised Cannon that if there were a time period when there was not a state post-conviction proceeding pending, said time period would count toward the AEDPA's one-year limitation period. Id. Despite the Court's warning, Cannon waited until September 26, 2007-- 364 days after his post-conviction proceedings became final in state court in which to file the instant petition. Id. Cannon also waited a period of six months in between the December 2, 1998 Illinois Supreme Court denial of his PLA for his first post-conviction petition and the filing of his second post-conviction petition on June 7, 1999. As the Court warned Cannon in its order of March 9, 1999, the dates of which Cannon had no post-conviction petition pending over his nine year pursuit of post-conviction relief must be counted towards the federal statute of limitation time period. Id. Therefore, the six-month delay between December 2, 1998 and June 7, 1999 must be counted along ...