The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Respondent's Motion to Dismiss (d/e 7). For the reasons set forth below, the Motion is ALLOWED.
On October 2, 1990, James Moore, an inmate at Pontiac Correctional Center (Pontiac), was stabbed and killed in the prison yard. Petitioner Wilford Mackey was accused of aiding Evan Griffith in committing the homicide. Mackey and Griffith were also prisoners at Pontiac. Three other prisoners, Larry Nelson, Michael Marzette, and Bernie Cleveland, testified at Griffith's trial that Griffith committed the homicide and Mackey assisted him. Griffith was convicted. Thereafter, Mackey pleaded guilty to Armed Criminal Violence in June 1992. Petition for Habeas Corpus (d/e 1), Appendix, People v. Mackey (Appellate Opinion), No. 4-03-0774, slip. op., at 1 (Ill. App. 4th Dist., March 10, 2006). Mackey did not admit that the state's evidence was correct, but agreed to plead guilty in light of the testimony of the three witnesses.
In February 2002, Nelson, Marzette, and Cleveland testified at a post-conviction proceeding for Griffith. All three men recanted their testimony at Griffith's trial. They claimed that prison officials pressured them into testifying against Griffith and Mackey. Mackey states that he learned about the recantations on June 29, 2003. Affidavits in Support of Motion (d/e 9), Appendix, Affidavit of Wilford Mackey, ¶ 1. On July 21, 2003, Mackey filed a successive state post-conviction petition based on this new evidence. The trial court held an evidentiary hearing and then denied the petition. The Illinois Appellate Court affirmed on March 10, 2006. Appellate Opinion, at 12. The Illinois Supreme Court denied the Petition for Leave to Appeal (PLA) on September 27, 2006. Motion to Dismiss (d/e 7), Exhibit C, Order Denying PLA.
On April 7, 2007, Mackey filed a § 2254 Petition with this Court. Mackey v. Ott, Case No. 07-3097. Mackey neither paid the filing fee nor filed a petition to proceed in forma pauperis. Mackey's attorney states that he failed to send the filing fee to the Court for the § 2254 Petition in Case No. 07-3097, because of a mis-communication with his secretary. Motion to Supplement the Record with a Personal Affidavit (d/e 10), Appendix, Affidavit of Counsel Robert Markfield. The Court dismissed this Petition on June 6, 2007; a copy of the docket sheet in Case No. 07-3097 is attached to this Opinion. Mackey filed this Petition, with the filing fee, on September 25, 2007. Respondent moves to dismiss on the grounds that this Petition is barred by the statute of limitations.
Mackey had one year from the date on which the factual predicate of the claim could have been discovered, through the exercise of due diligence, to file his § 2254 Petition. 28 U.S.C. § 2244(d)(1)(D). The one-year statute of limitations was tolled during any time that a properly filed post-conviction proceeding was pending. 28 U.S.C. § 2244(d)(2). For purposes of the Motion, the Court assumes that on June 29, 2003, Mackey first learned the factual predicate of his claim that the state used perjured testimony to coerce him into pleading guilty. He filed his state post-conviction petition on July 21, 2003. The statute was then tolled on that date. Thus, the statute ran for 22 days from June 29, 2003, to July 21, 2003, leaving 343 days.
The Illinois Supreme Court denied Mackey's Petition for Leave to Appeal (PLA) on September 27, 2006. The statute started running again on that date. Petitioner had 343 days to file his § 2254 Petition. Petitioner filed the instant Petition on September 25, 2007, 363 days later, after the statute had run.
The Court directed the parties to address the effect on the running of the statute by Mackey's § 2254 Petition filed in Case No. 07-3097, which was dismissed. Text Order entered May 13, 2008. The Respondent correctly noted that the earlier § 2254 Petition had no effect on the running of the statute because the statute only states that the pendency of a state post-conviction petition tolls the statute, not a federal § 2254 petition. Response (d/e 11), at 2, (citing Dolis v. Chambers, 454 F.3d 721, 723 (7th Cir. 2006)). Mackey concedes this point.
Mackey argues, however, that equitable tolling should apply to toll the statute. Equitable tolling may be available to toll the statute of limitations on § 2254 petitions. Araujo v. Chandler, 435 F.3d 678, 680 (7th Cir. 2005). Equitable tolling may apply if exceptional circumstances beyond Mackey's control kept him from filing a timely petition. Id. Mackey argues that exceptional circumstances exist here because his attorney failed to send the filing fee to the Court for the § 2254 Petition in Case No. 07-3097. An error committed by one's own attorney is not an exceptional circumstance that warrants the application of equitable tolling. Johnson v. McCaughtry, 265 F.3d 559, 565 (7th Cir. 2001); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999). Equitable tolling does not apply.
Mackey also argues that he should be allowed to proceed because he has evidence that he is actually innocent. He argues that in such cases, the statute of limitations does not apply. However, the actual innocence doctrine applies to: (1) habeas claims that have been procedurally defaulted in state proceedings, or (2) requests for permission to file successive habeas petitions. The doctrine does not apply to the statute of limitations. Araujo, 435 F.3d at 680; Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir. 2005). Mackey's claim is barred by the statute of limitations. The Motion to Dismiss is allowed.
THEREFORE, Respondent's Motion to Dismiss (d/e 7) is ALLOWED. The Petition for Habeas Corpus Relief (d/e 1) is dismissed. All pending motions ...