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Luga v. McCann

February 11, 2009

BOBBY S. LUGA, PETITIONER,
v.
BRIAN MCCANN, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Bobby Luga has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § ("section") 2254 challenging his state criminal conviction. The case is before the Court on the government's motion to dismiss the petition as untimely. For the reasons provided in this Memorandum Opinion and Order, the Court grants the motion. This case is hereby terminated.

Procedural Background

On August 28, 2003, a jury convicted Bobby S. Luga of attempted first-degree murder. (Gov't Ex. A, Rule 23 Order, People v. Luga, No. 03 CF 1435, slip op. at 1 (Dec. 23, 2005).) The state court sentenced Luga to thirty-four years in prison. (Id.)

Luga appealed his conviction and on December 23, 2005, the appellate court affirmed his conviction. (Id.) On August 2, 2006, Luga filed a pro se motion for leave to file a late petition for leave to appeal to the Illinois Supreme Court. (Gov't Ex. B, Pet. Leave Appeal.) On September 15, 2006, the Illinois Supreme Court granted Luga leave to file his late petition. (Gov't Ex. C, People v. Luga, 103408, slip op. 1 (Sept. 16, 2006).) On November 29, 2006, the Illinois Supreme Court denied the petition for leave to appeal. (Gov't Ex. D, People v. Luga, No. 103408, slip op. 1 (Nov. 29, 2006).).

On May 25, 2007, Luga filed a pro se petition for post-conviction relief.*fn1 (Gov't Ex. E, Pet. Post-Conviction Relief.) On August 24, 2007, the Court dismissed the petition. (Gov't Ex. F, People v. Luga, No. 03 CF 1435, slip op. (Aug. 24, 2007).)*fn2

On August 16, 2008, Luga filed the petition for writ of habeas corpus. (Pet. Writ Habeas Corpus.) In it, he raises three claims: (1) he is entitled to a new trial because the charge to the jury included conflicting instructions that prevented it from considering the lesser included offense of aggravated battery; (2) he was provided ineffective assistance of counsel when his lawyer failed to research Luga's criminal history prior to challenging his sentence on direct appeal; (3) he was provided ineffective assistance of counsel when his appellate counsel failed to argue that the issue of intent was not proved beyond a reasonable doubt. (Id. 5-15.)

Discussion

The government contends that Luga's petition must be dismissed because it is time-barred. Habeas petitions have a one-year statute of limitations that runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 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, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

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

28 U.S.C. § 2244(d)(1); see Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002). Only the first option, one year from the date on which the ...


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