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United States ex rel Wood v. Ott

February 24, 2009

UNITED STATES OF AMERICA EX REL. DAVID WOOD, PETITIONER,
v.
ANDREW OTT, ACTING WARDEN, RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Respondent Andrew Ott' s motion to dismiss Petitioner David Wood' s petition for habeas corpus [7] on the ground that the petition is time barred under the one year statute of limitations that applies to federal habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). For the reasons stated below, Respondent' s motion [7] is granted.

I. Background

On June 29, 2001, Petitioner was found guilty of predatory criminal sexual assault in the Circuit Court of Cook County. He received a sentence of ten years imprisonment and is now in the custody of Respondent, the Acting Warden of the Graham Correctional Center in Hillsboro, Illinois.

On direct appeal, Petitioner's conviction was upheld by the Illinois Appellate Court. The Supreme Court of Illinois denied Petitioner's petition for leave to appeal on October 7, 2003, and Petitioner declined to file a petition for a writ of certiorari in the Supreme Court of the United States. However, on April 13, 2004, Petitioner filed a petition for post-conviction relief in the Circuit Court. The Circuit Court summarily dismissed the post-conviction petition, the Appellate Court affirmed, and on January 24, 2007, the Supreme Court denied a petition for leave to appeal. Petitioner again declined to seek review in the Supreme Court of the United States.

On January 21, 2008, Petitioner filed his petition for a writ of habeas corpus in this Court under 28 U.S.C. § 2254. Petitioner raises four substantive issues: (i) the trial court improperly prevented him from presenting forensic evidence; (ii) trial counsel was ineffective in failing to properly oppose the State' s motion in limine regarding Petitioner' s expert and present any affirmative evidence; (iii) Petitioner' s confession was inadmissible because it was coerced; and (iv) Petitioner was denied access to counsel during the underlying police investigation.

II. Analysis

It is undisputed that Petitioner has no further state court avenues of review, and thus he has exhausted his available state remedies as required by 28 U.S.C. § 2254(b). The question raised in Respondent' s motion is whether the petition should be dismissed as untimely under the one year statute of limitations for Section 2254 petitions set forth in 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) states:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court. The limitation period shall run from the latest of ---

(A) the date on which 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). Just last month, the Supreme Court reaffirmed that where, as here, a "federal prisoner chooses not to seek direct review" in the Supreme Court, "the conviction becomes final when ' the time for filing a certiorari petition expires.'" Jimenez v. Quarterman, 129 S.Ct. 681, 685 (2009). Thus, Petitioner' s direct appeal became final on January 5, 2004, when the period for filing a petitioner for certiorari expired ninety days after the Illinois Supreme Court ...


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