The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
In 1994, a Cook County judge convicted Clarence Trotter of murder, aggravated kidnaping, and residential burglary following a bench trial. Trotter has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss Trotter's petition as untimely. Trotter has moved the Court to hold his petition in abeyance pending the outcome of proceedings currently on appeal in state court. For the reasons set forth below, the Court denies Trotter's motion. The Court grants respondent's motion to dismiss in part and denies it in part.
Factual findings by the state court are presumed correct in a federal habeas corpus proceeding unless they are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2005). Accordingly, the Court has taken facts from the Illinois Appellate Court's opinion where appropriate.
Trotter was convicted in 1994. On direct appeal, the Illinois Appellate Court affirmed his conviction and sentence but ordered a limited remand so that the trial court could hold a hearing on Trotter's claim of ineffective assistance of counsel pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1065 (1984). People v. Trotter, No. 1-04-0992, slip op. at 2 (Ill. App. Dec. 20, 2006).*fn1 The trial court ultimately ruled against Trotter on that issue, and the appellate court subsequently affirmed. Id. The Illinois Supreme Court denied Trotter's petitions for leave to appeal with respect to his original appeal from the 1994 conviction and his second appeal based on his ineffective assistance of counsel claim. Id. The latter of the two rulings by the Illinois Supreme Court was entered on May 31, 2000. People v. Trotter, 189 Ill. 2d 678, 731 N.E.2d 770 (2000).
From 1997 through 2000, while Trotter was pursuing his ineffective assistance of counsel claim on remand in the trial court and on appeal, he filed various motions in the state trial court. Trotter, No. 1-04-0992, slip op. at 2-4. The parties dispute whether the trial court treated those motions as claims for post-conviction relief pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. Trotter filed, pro se, a "Petition for Post-conviction Relief/Alterative Relief from Judge of Conviction Instanter." Trotter, No. 1-04-0992, slip op. at 4. His counsel filed a "Partial Supplemental Post-conviction Petition" twelve days later. Id. Trotter filed, again pro se, further "supplemental" petitions in the trial court on April 3, 2003 and January 8, 2004. Id.
The state moved to dismiss Trotter's post-conviction proceedings as untimely.
Id. at 4-5. The trial court ultimately dismissed Trotter's petition as untimely under Illinois law. Id. at 5. The Illinois Appellate Court affirmed that decision. Id. at 5-10. The court ruled that Trotter was required to file his post-conviction petition by October 26, 1997, but had failed to do so. Id. at 5-6. On March 28, 2007, the Illinois Supreme Court denied Trotter's petition for leave to appeal from that decision. People v. Trotter, 223 Ill.2d 677, 865 N.E.2d 976 (2007).
The docket reflects that the Clerk received Trotter's petition on May 20, 2008, but as best the Court can determine the petition is deemed to have been filed on May 14, 2008, when Trotter apparently placed it in the prison's mail system. 28 U.S.C. § 2254 Rule 3(d).
1. Trotter's Motion to Hold in Abeyance
Trotter requests that the Court stay proceedings on his petition for a writ of habeas corpus until the Illinois courts resolve a pending matter. In September 2007, Trotter "filed a motion with the Cook County Circuit court requesting that the court to 'put post-conviction petition back on call.'" Docket No. 18 at 1. The trial court denied the motion in December 2007. Trotter appealed that ruling. The appeal is still pending.
This Court has discretion to stay a habeas corpus proceeding. Rhines v. Weber, 544 U.S. 269, 276 (2005). That discretion, however, should be utilized "only in limited circumstances." Id. at 277. In Rhines, the Supreme Court noted that a stay would typically be appropriate in the situation where a petitioner alleges multiple claims for relief, some of which have not been exhausted in the state court. Id. at 274-78. Under those circumstances, a petitioner could initiate proceedings under section 2254 to prevent the statute of limitations from running on all claims, and a district court could stay that petition pending resolution by the state court of claims that were not yet exhausted. Id. at 278. This is not the situation in the current case. Trotter has not contended that a stay is necessary so that he can pursue unexhausted claims in the state court.
The Supreme Court also held that it would an abuse of discretion for a district court to grant a stay where a petitioner's claims are "plainly meritless." Id. at 277. In Trotter's case, the Illinois Appellate Court already affirmed the trial court's decision to reject his first post-conviction proceeding as untimely under Illinois law. Trotter, No. 1-04-0992, slip op. at 5-10. Trotter has not submitted anything to support that the Illinois courts will reach a different conclusion on the same question this time around. Nor has he claimed that the current proceedings in state court raise new or different issues. In short, based on the record before the Court, Trotter's current state court matter is plainly meritless. Moreover, even if the state courts are willing to entertain Trotter's most recent claims, that would not affect the timeliness of his habeas corpus ...