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Blackwell v. McCann

September 29, 2008

MARCUS BLACKWELL, PETITIONER,
v.
TERRY MCCANN, WARDEN STATEVILLE CORRECTIONAL CENTER RESPONDENT.*FN1



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Petitioner Marcus Blackwell ("Blackwell") has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, in which he presents eight claims: (1) his extended-term sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), because facts that justified the extended sentence were not found by a jury beyond a reasonable doubt; (2) his sentences were excessive because they failed to account for his rehabilitative potential; (3) the trial court erred by denying his motion for directed verdict; (4) the trial court erred by denying his motion to suppress statements he made during an interrogation; (5) the trial court erred by considering, during sentencing, statements that he had made without benefit of Miranda warnings; (6) the trial court erred by relying on perjured testimony from a witness; (7) ineffective assistance of trial counsel; and (8) ineffective assistance of appellate counsel. Respondent, Warden Terry McCann, moves to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1)(A). For the following reasons, the Court grants Respondent's motion [15], respectfully dismissing Blackwell's habeas petition. The Petitioner styled his response [26] to the motion to dismiss as an independent motion. That motion [26] is denied.

I. Background

On March 2, 1999, Blackwell was convicted of first degree murder in the Circuit Court of Cook County, Illinois, for firing a gunshot that struck and killed 71-year old Mary Harris on her front porch during a drive-by shooting in Maywood, Illinois.*fn2 He also was convicted of attempted murder for shooting and seriously injuring teenager Kerry Rouse during the same incident. Blackwell was sentenced to 84 years in prison for the murder, an extended-term sentence based on the fact that the murder victim was over sixty years old, pursuant to 730 ILCS 5/5-3.2(b)(4)(ii). Blackwell was also sentenced to 27 years in prison for the attempted murder. Because he had inflicted severe harm on the attempted murder victim, the Circuit Court imposed the 27-year sentence consecutive to the 84-year sentence under 730 ILCS 5/5-8-4(b).

On appeal, Blackwell argued that his extended-term sentence for first-degree murder violated Apprendi because the aggravating factor of the victim's age was not submitted to a jury and proven beyond a reasonable doubt. He also asserted an Apprendi-based challenge to the constitutionality of the statute that allowed his sentences to be imposed consecutively. Finally, Blackwell argued that the trial court abused its discretion because it failed to consider mitigating factors such as his young age (16 years old at the time of the shooting) and rehabilitative potential when determining his sentence.

On September 18, 2001, the Appellate Court of Illinois upheld Blackwell's sentence.

The court held that even if the failure to submit the victim's age to the jury amounted to an Apprendi violation, it was harmless error, because the defense had not disputed the fact that the victim was 71 years old. Thus, even if the issue of the victim's age had been submitted to a jury, Blackwell still would have been found guilty and would have been eligible for an extended-term sentence. The Appellate Court also held that the imposition of consecutive sentences did not require a jury determination under Apprendi, when each of the two sentences, standing on its own, fell within the proper statutory range for the crime committed. Finally, the Appellate Court found no abuse of sentencing discretion by the trial court, because the Appellate Court determined that the trial court had satisfactorily considered mitigating factors by hearing mitigation testimony from several of Blackwell's relatives.

Blackwell filed a petition for leave to appeal ("PLA"), which the Supreme Court of Illinois denied on April 2, 2003. Order Denying PLA, Resp. Ex. B. Blackwell also petitioned the United States Supreme Court for certiorari, which was denied on October 6, 2003. Blackwell v. Illinois, 540 U.S. 889 (2003), Resp. Ex. C.

Concurrent with his direct appeal, Blackwell sought collateral relief through the Illinois post-conviction petition process.*fn3 On April 2, 2003, he filed a pro-se post-conviction petition in the Circuit Court of Cook County raising the same claims of trial court error and ineffective assistance of counsel that he raises in claims 3 through 8 of his habeas petition. The Circuit Court summarily dismissed the post-conviction petition on April 11, 2003, on the ground that Blackwell had waived those claims by failing to raise them in his direct appeal. On June 30, 2005, the Appellate Court of Illinois found that the Circuit Court had improperly applied waiver to Blackwell's petition, since claims that were not raised on direct appeal are not waived for purposes of post-conviction relief when the petitioner asserts that the issues were not raised because of ineffectiveness of appellate counsel. However, the Appellate Court ultimately affirmed the dismissal of Blackwell's post-conviction petition, because it found that Blackwell had failed to adequately raise the substance of his claims for review in his post-conviction appeal. The Illinois Supreme Court denied Blackwell's petition for leave to appeal the denial of his post-conviction petition on December 1, 2005. Order Denying PLA, Resp. Ex. F. Therefore, Blackwell has exhausted his state court remedies, both through direct appeal and collateral post-conviction relief.

With his state court remedies exhausted, Blackwell filed this petition for writ of habeas corpus asking this Court to grant all relief to which he may be entitled. Although the Court received the petition on December 8, 2006, the Court will consider the filing date to be December 4, 2006, the date that Blackwell signed the petition and the earliest date on which he could have put the petition into the prison mailing system.*fn4 See Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir. 1999) (applying "mailbox rule" to determine filing date of pro se habeas petition).

II. Discussion

In the motion now before the Court, Respondent McCann moves to dismiss, with prejudice, Blackwell's petition for writ of habeas corpus as untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). McCann argues that Blackwell's habeas petition, filed on December 4, 2006, was due on or before December 1, 2006 under AEDPA's one-year statute of limitations period. McCann further argues that equitable tolling of the AEDPA statute of limitations period is unwarranted because Blackwell cannot demonstrate that an extraordinary circumstance beyond his control prevented him from filing his petition in a timely manner.

A. Statute of Limitations for Habeas ...


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