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United States ex rel Plummer v. Gaetz

February 23, 2009

UNITED STATES OF AMERICA EX REL. CONTRELL PLUMMER, PETITIONER,
v.
DONALD GAETZ,*FN1 WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Contrell Plummer, who is currently incarcerated at Menard Correctional Center, has filed a pro se petition for writ of habeas corpus based on violation of his rights under the Sixth and Fourteenth Amendments of the Constitution. Plummer asserts five particular grounds for relief:

(1) ineffective assistance of trial counsel; (2) ineffective assistance of counsel on his direct appeal; (3) the trial court exceeded the limits of its jurisdiction when it convicted him of murder without proof beyond a reasonable doubt of his intent; (4) his confession was obtained through false pretenses or bribery; and (5) he was unlawfully sentenced under a statute not in effect at the time he committed the offense for which he was sentenced.

Before the court is respondent's motion to dismiss the petition under 28 U.S.C. § 2244(d)(1)(A) and to deny Plummer's motion for summary judgment. For the following reasons, the motion [#14] will be granted.

BACKGROUND

Following a bench trial, Plummer and his co-defendant, Stanley Thomas, were convicted of knowing first degree murder, felony murder, and aggravated discharge of a firearm. Plummer was sentenced to serve 55 years imprisonment, which was later reduced to a 40-year term. Plummer appealed his conviction, and the Illinois Appellate Court affirmed on March 31, 2004. Plummer then filed a pro se petition for leave to appeal (PLA), which the Illinois Supreme Court denied on October 6, 2004. Plummer did not seek review in the United States Supreme Court.

On March 15, 2005, Plummer filed a pro se petition for post-conviction relief in the Circuit Court of Cook County pursuant to 725 Ill. Comp. Stat. 5/122 et seq. On April 22, 2005, the state trial court dismissed the post-conviction petition.

Plummer did not file a timely notice of appeal as to the denial of the post-conviction petition within the thirty days allotted under Ill. S.Ct. R. 303(a)(1). On September 23, 2005, Plummer submitted to the Illinois Appellate Court a "Late Notice of Appeal" along with an affidavit asserting a number of reasons why the state appellate court should excuse his untimely filing. In an order dated November 1, 2005, the state appellate court re-characterized Plummer's "Late Notice of Appeal" pleading as a motion for leave to file a late notice of appeal and denied the motion. On October 12, 2005, prior to the denial of his "Late Notice of Appeal" pleading, Plummer submitted a "Motion for Leave to File a Late Notice of Appeal" to the Illinois Appellate Court. The Illinois Appellate Court granted that motion on December 16, 2005 and affirmed the lower court's ruling on May 30, 2006. Plummer filed a PLA, which was denied by the Illinois Supreme Court on September 26, 2007.

Plummer dated the instant federal habeas petition March 15, 2008, and it was received by the clerk of this court on April 2, 2008. A document entitled "Notice and Proof of Service" that Plummer submitted along with his petition, however, is signed and dated March 26, 2008.

DISCUSSION

Federal law imposes a one-year statute of limitations on habeas corpus petitions filed under 28 U.S.C. § 2254. Section 2244(d)(1) provides that the limitations period runs from the latest of four possible dates: (A) the date the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date the impediment to filing an application created by state action in violation of federal law is removed, if the applicant was prevented from filing by such state action; (C) the date 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 the factual predicate of the claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)--(D).

Respondent argues that only § 2244(d)(1)(A) is applicable and that Plummer filed his federal habeas petition after the expiration of the one-year period under that provision. The Illinois Supreme Court denied Plummer's PLA with respect to his direct appeal on October 6, 2004, and the time during which he could have petitioned the United States Supreme Court for a writ of certiorari expired on January 4, 2005. On that date, respondent contends, the statute of limitations began to run. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002) ("[T]he ninety day period during which a petition for certiorari may be filed by a state prisoner falls within the meaning of section 2244(d)(1)(A) for purposes of calculating when the statute of limitations begins to run.").

Seventy days later, on March 15, 2005, Plummer filed a petition for post-conviction relief with the state trial court, thereby tolling the statute of limitations. See 28 U.S.C. § 2244 ("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 . . . ."). The post-conviction petition was denied on April 22, 2005, and Plummer failed to file a timely notice of appeal by May 22, 2005, at which point, respondent contends, the clock began to run again.

Respondent assumes for the purposes of this motion that the limitations period was tolled again on October 12, 2005, when Plummer filed his "Motion for Leave to File a Late Notice of Appeal." Thus, respondent contends, the 143 days between May 22, 2005 and ...


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