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Carter v. McCann

March 12, 2009

DAVID CARTER, PETITIONER,
v.
TERRY L. MCCANN, RESPONDENT.



The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge

OPINION & ORDER

Before the Court is an Amended Petition for the Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 (Doc. 19), filed by Petitioner David Carter. On August 6, 2008, Carter filed a Motion to Supplement his Amended Petition with an additional affidavit (Doc. 32). Shortly thereafter, on August 11, 2008, Respondent Terry McCann filed a Motion to Dismiss the Amended Petition as time-barred (Doc. 33). On September 2, 2008, Carter filed a response (Doc. 35) to the Motion to Dismiss. The Motion to Supplement is unopposed. For the reasons stated below, the Motion to Supplement is GRANTED, and the Motion to Dismiss is GRANTED.

BACKGROUND

In November 1991, Petitioner Carter was convicted in the Circuit Court of Livingston County, Illinois of first degree murder, conspiracy to commit murder, and solicitation to commit murder. Carter received a sentence of imprisonment for a term of natural life on the first degree murder count. The Illinois Appellate Court, Fourth District affirmed Carter's first degree murder conviction and sentence, but vacated his conspiracy and solicitation convictions. On direct appeal, Carter filed a Petition for Leave to Appeal (PLA) to the Illinois Supreme Court, raising various issues. The Illinois Supreme Court denied the PLA on October 6, 1993, ending Carter's direct appeal. (Ex. C to Mtn. to Dismiss).

On April 23, 1997, Carter filed a petition for the writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Northern District of Illinois ("4/23/97 Petition"). (Ex. I to Mtn. to Dismiss). The 4/23/97 Petition was assigned to District Judge Harry D. Leinenweber under Case Number 97-cv-02926. The respondent in that case filed an answer on January 30, 1998. On March 12, 1999, Judge Leinenweber found the 4/23/97 Petition to be timely. (Ex. I at Doc. 35).

Meanwhile, on August 10, 1998 -- while his 4/23/97 Petition was pending in federal court -- Carter filed, in the Circuit Court of Livingston County, a combined petition for (i) post-conviction relief (pursuant to 725 Ill. Comp. Stat. 5/122-1) and (ii) relief from judgment (pursuant to 735 Ill. Comp. Stat. 5/2-1401). (Ex. D to Mtn. to Dismiss). On April 23, 1999, the Livingston County Court dismissed the post-conviction portion of Carter's petition as untimely. (Ex. E to Mtn to Dismiss). The section 2-1401 portion was subsequently dismissed on the merits. (See Ex. F to Mtn. to Dismiss). Carter appealed the state trial court's rulings on the combined petition. (See Ex. F to Mtn. to Dismiss).

On April 28, 1999, in the federal habeas action, Judge Leinenweber agreed to stay the case on a motion by Carter, "pending the resolution of his petition for post- conviction relief in Livingston County . . . ." (Ex. I at Doc. 38). On May 26, 1999, while the federal habeas action was still stayed, the respondent in that action filed a motion to dismiss the 4/23/97 Petition. (Ex. I at Doc. 41). Carter did not respond to the motion to dismiss, and on October 29, 1999, Judge Leinenweber granted the motion. Judge Leinenweber's Minute Order on that date read as follows:

MINUTE ORDER of 10/29/99 by Hon. Harry D. Leinenweber Respondent's motion to dismiss petitioner's petition for writ of habeas corpus is granted [41-1]. Petitioner has not exhausted his state court remedies because he has pending state court post-conviction relief actions. The petition is dismissed without prejudice. Petitioner may refile his petition after all state court remedies are exhausted.

Terminating case. Mailed notice (ar) Modified on 11/01/1999 (Entered: 11/01/1999) (Ex. I at Doc. 43). The Clerk of the Northern District of Illinois entered a corresponding judgment, dated October 29, 1999. (Ex. J to Mtn. to Dismiss). There were no further entries on the docket for Case Number 97-cv-02926 in the Northern District.

On December 9, 2005, the Illinois Appellate Court, Fourth District, affirmed the state trial court's dismissal of Carter's combined state post-conviction/section 2-1401 petition. (Ex. F to Mtn. to Dismiss). Carter appealed that decision, filing a PLA to the Illinois Supreme Court. The Illinois Supreme Court denied the PLA on March 29, 2006. (Ex. H to Mtn. to Dismiss).

After letting nearly a year pass after exhausting the state post-conviction mechanism, on March 21, 2007, Carter submitted a new petition under 28 U.S.C. § 2254 to the United States District Court for the Northern District of Illinois ("3/21/07 Petition").*fn1 The 3/21/07 Petition was again assigned to Judge Leinenweber, but the case was assigned a new case number: 07-cv-01758. The 3/21/07 Petition indicated that Carter had previously filed a federal habeas petition in the Northern District of Illinois; it listed the case number of the 4/23/97 Petition ("97 C 2926") and indicated that the earlier petition was assigned to Judge Leinenweber. In addition, the 3/21/07 Petition suggested that Carter was under the impression that proceedings in Case Number 97-cv-02926 were still stayed.*fn2 (Doc. 1 at p. 4). Specifically, Carter indicated that the earlier case was still under a stay Order issued in April 1999.

On April 20, 2007, Judge Leinenweber ordered Carter's 3/21/07 Petition transferred here, to the United States District Court for the Central District of Illinois at Peoria, for purposes of convenience -- Carter was convicted within this judicial district. (See Doc. 12 at p. 6). Due to clerical error, the 3/21/07 Petition was not properly transferred to the Central District until August 21, 2007. (Doc. 15).

Upon receiving the case, this Court entered an Order on March 14, 2008 which disposed of various pending motions, one of which was a motion made by Carter for reconsideration of Judge Leinenweber's transfer Order.*fn3 This Court denied the motion to reconsider, noting that the transfer was appropriate under Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 493-94 (1973). (Doc. 18). The March 14, 2008 Order also struck a portion of Carter's lengthy Petition and directed the Clerk to file the remaining portion as an Amended Petition. The Amended Petition (Doc. 19) is currently before the Court. On May 2, 2008, Carter filed an Amended Memorandum in support of the Amended Petition. (Doc. 22). On May 13, 2008, this Court denied Petitioner Carter's request for appointed counsel and ordered Respondent to answer the Amended Petition. (Doc. 25). On August 6, 2008, Carter filed a motion to supplement his Amended Petition with an additional affidavit.

On August 11, 2008, Respondent filed a Motion to Dismiss the Amended Petition as time-barred under the applicable statute of limitation. (Doc. 33). On August 21, 2008, Petitioner Carter submitted a letter to this Court, claiming that he did not receive the exhibits attached to Respondent's Motion to Dismiss. Despite his allegation of missing exhibits, on September 2, 2008, Carter submitted a response in opposition to the Motion to Dismiss. (Doc. 35). In response to Carter's August 21, 2008 letter and out of an abundance of caution, this Court, on September 18, 2008, ordered Respondent to serve upon Petitioner Carter the exhibits attached to the Motion to Dismiss. In addition, the Court allowed Carter an addition fifteen days after receiving the exhibits to supplement his Response to the Motion to Dismiss. (TEXT ORDER of 9/18/2008). On November 19, 2008, Respondent submitted a filing which certified ...


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