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United States ex rel Carmichael v. McCann

January 6, 2009

UNITED STATES OF AMERICA EX REL. MATTHEW CARMICHAEL PETITIONER,
v.
TERRY MCCANN, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM OPINION AND ORDER

This case is before the court on the motion of respondent Terry McCann to dismiss the petition for writ of habeas corpus filed by petitioner Matthew Carmichael. For the reasons set forth below, the motion to dismiss is granted and this case is terminated.

BACKGROUND

Petitioner Matthew Carmichael is currently incarcerated at the Stateville Correctional Center in Joliet, Illinois. Following a jury trial in the Circuit Court of Cook County, Carmichael was convicted on April 20, 2001 of first degree murder and attempted murder stemming from his shooting at a group of individuals on Chicago's south side. Rule 23 Order, People v. Carmichael, No. 1-01-2564 (Ill. App. Ct. 2003). Carmichael was then sentenced to concurrent terms of 35 and 30 years of imprisonment. Id. Carmichael filed an appeal in the Illinois Appellate Court, which affirmed his conviction and sentence on June 26, 2003. Id. Carmichael did not file a petition for leave to appeal ("PLA") in the Illinois Supreme Court, or a petition for a writ of certiorari in the United States Supreme Court.

On May 10, 2004, Carmichael filed a petition for post-conviction relief in the Circuit Court of Cook County. Rule 23 Order, People v. Carmichael, No. 1-05-0097 (Ill. App. Ct. 2006). The petition was denied as frivolous and without merit on June 17, 2004. Id. The Illinois Appellate Court affirmed the denial of Carmichael's post-conviction petition on June 30, 2006, and the Illinois Supreme Court denied Carmichael's PLA on November 29, 2006. Id.; Order Denying PLA, People v. Carmichael, No. 103184 (Ill. 2006). On December 6, 2007, Carmichael filed a petition for writ of habeas corpus in this court alleging that he was denied his Sixth Amendment right to effective assistance of counsel. Carmichael's petition alleges that his attorney failed to call witnesses, failed to investigate, and failed to provide an adversarial defense. Respondent McCann filed a motion to dismiss the petition as untimely.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires a state prisoner seeking habeas corpus relief to file a petition within one year after the conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). In Illinois, the judgment of a court of review is final on the day in which the decision is entered. See Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002) (citing PSL Realty Co. v. Granite Inv. Co., 427 N.E.2d 563 (1981)).

Respondent argues that Carmichael's petition for a writ of habeas corpus is time-barred by the one year statute of limitations found in the AEDPA. 28 U.S.C. § 2244(d)(1). The AEDPA provides that the statute of limitations period begins at the occurrence of one of four events:

(A) the date on which the judgment becomes final by conclusion of direct review or the expiration of the time for seeking review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date in which the factual predicate of the claim or claims presented could have been discovered through the exercise due diligence.

Id. The AEDPA also contains a tolling provision which states that "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 any period of limitation under the subsection." 28 U.S.C. § 2244(d)(2).

The first issue related to the timeliness of Carmichael's petition is the date from which the limitations period began to run. Carmichael does not allege a State impediment to filing, a newly recognized and retroactive constitutional right, or a subsequent discovery of the factual predicate of a claim. (Although Carmichael alleges that the instructions for filing a petition for habeas corpus that were distributed at the prison did not specifically list the applicable statute of limitations, he does not allege any deceit on the part of the State that prevented him from filing a timely petition.) Therefore, the date on which petitioner's conviction became final is the date that began the limitations period. 28 U.S.C. ยง 2244(d)(1)(A)-(D). The judgment in Carmichael's case became final 21 days after June 26, 2003, the date upon which the Illinois Appellate Court affirmed Carmichael's convictions and sentences, because that is the date upon which his time to file a PLA or an affidavit of intent to file a PLA in the Illinois Supreme Court expired. See Ill. S.Ct. R. 315(b)(2003)(the rule in effect at the time gave parties 21 days to appeal, but has since been amended to allow 35 days); see ...


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