The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Now before the Court is Petitioner, Evan Griffith's ("Griffith"), Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition [#29] is DISMISSED as untimely.
Following a jury trial in the Circuit Court of Livingston County, Illinois, Griffith was found guilty of first degree murder and unlawful possession of a weapon by a person in the custody of the Illinois Department of Corrections ("IDOC"). He was sentenced to death on the murder conviction and a consecutive term of 30 years' imprisonment on the weapons conviction. His death sentence was subsequently commuted to life in prison without parole by former Governor George Ryan.
As Griffith was sentenced to death, his appeal went directly to the Illinois Supreme Court. On appeal, he raised 12 claims of error: (1) the trial court violated his Sixth Amendment right to counsel by forcing him to proceed pro se in deciding whether to give a second-degree murder instruction to the jury; (2) he did not knowingly waive his right to have a second-degree murder instruction presented to the jury; (3) trial counsel was ineffective in connection with the jury instruction issue; (4) he was denied a fair trial when the prosecution insinuated that he had a gang-related motive for the murder; (5) he was denied a fair trial when the prosecution suggested that he had threatened two prosecution witnesses; (6) he was denied a fair trial when the prosecution elicited testimony from witnesses that they had been intimidated but the record did not indicate that it was Griffith that had threatened them; (7) he was denied a fair trial when the prosecution elicited victim impact testimony during the guilt phase and then referred to that testimony in its closing argument; (8) he was denied his right to individualized consideration in sentencing when the trial judge refused to consider evidence of his good character; (9) his death sentence violated the Eighth Amendment because of the trial judge's beliefs; (10) his death sentence violated the Eighth Amendment because the trial court relied on information outside the record that he was not allowed to explain or rebut; (11) Illinois' death penalty statute violates the Eighth Amendment because it does not allow for meaningful consideration of mitigation evidence; and (12) Illinois' death penalty statute violates the Eighth Amendment because it does not sufficiently minimize the risk of arbitrary or capricious death sentences. The Illinois Supreme Court affirmed Griffith's convictions and sentences on April 21, 1994. On October 17, 1994, Griffith's Petition for Writ of Certiorari to the United States Supreme Court was denied.
On March 31, 1995, Griffith filed a post-conviction petition in the Livingston County Circuit Court in which he raised essentially five claims of error: (1) trial counsel was ineffective for failing to file a motion to preclude the use of his prior murder conviction to impeach his trial testimony; (2) trial counsel was ineffective for failing to introduce evidence that the victim had ordered acts of violence to be committed against other inmates; (3) he was denied his right to a fair trial because his trial testimony was impeached by the use of a prior murder conviction that had been obtained in violation of his right to effective assistance of counsel; (4) his death sentence was invalid because it relied on his prior murder conviction; and (5) his trial counsel was ineffective for failing to investigate and present relevant mitigation evidence. His petition was amended on January 6, 2000, to add the following claims: (6) he is actually innocent of first-degree murder because three prosecution witnesses had since recanted their testimony; (7) he was denied his right to a fair trial because the State coerced the three inmate witnesses to testify falsely at trial; and (8) trial counsel was ineffective for failing to interview one of the state's inmate witnesses and a correctional officer. The petition was amended for the second time on May 21, 2001, and three additional claims were added: (9) trial counsel was ineffective for failing to introduce evidence that the victim was in prison for murder; (10) the State failed to disclose the victim's rap sheet showing his history of violence; and (11) trial counsel was ineffective for failing to object to the form of the not-guilty verdict forms, and appellate counsel was ineffective for failing to raise the issue on appeal. Griffith's claims regarding the witness recantations were denied after an evidentiary hearing, and the remainder of his claims were also denied.
On appeal to the Illinois Appellate Court, Fourth District, Griffith presented 11 arguments: (1) the witness recantations left no evidence of his guilt; (2) the witness recantations revealed that their false testimony was procured by coercion and undisclosed promises; (3) the evidence produced in the post-conviction proceedings demonstrated that he was actually innocent; (4) the circuit court applied an improper presumption that discounted the recantation testimony and abused its discretion; (5) his due process rights were violated when the state failed to disclose the criminal histories of the victim and the inmate eyewitnesses; (6) the circuit court erred in dismissing his claim that trial counsel was ineffective for failing to fully investigate and present his self-defense claim; (7) the circuit court erred in dismissing his claim that trial counsel was ineffective for failing to interview a correctional officer; (8) the circuit court erred in denying his request to examine the victim's IDOC master file; (9) his convictions are void because they were obtained through the efforts of an attorney who was neither an assistant state's attorney nor an assistant attorney general; (10) the circuit court erred in dismissing his claim that counsel was ineffective for failing to object to the form of the not-guilty verdict forms; and (11) the cumulative violations of his constitutional rights require a new trial. The denial of post-conviction relief was affirmed by the Illinois Appellate Court on July 13, 2005.
On September 1, 2005, Griffith filed a petition for leave to file a PLA to the Illinois Supreme Court instanter, which was granted on September 13, 2005. In his PLA, Griffith made three arguments: (1) he was denied his due process right to a full and fair evidentiary hearing where the circuit court exceeded the presumption of unreliability applicable to recantation testimony and denied him the ability to present testimony or obtain records to corroborate the recantation testimony; (2) the appellate court misapplied Brady v. Maryland, in concluding that the inmate files and criminal histories of the victim and inmate witnesses were not exculpatory evidence; and (3) trial counsel was ineffective for failing to investigate and present evidence in support of his claim of self-defense and failing to object to the improper not-guilty forms, and appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness regarding the verdict forms. The Illinois Supreme Court denied Griffith's PLA.
Griffith initially filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising 11 claims of error. The Court subsequently granted his request for new counsel to appear and file an amended petition. The Amended Petition presents eight claims of error:
(1) he was denied his right to due process in connection with the jury instructions for second-degree murder; (2) the Illinois Supreme Court's decision that his waiver of his right to the second-degree murder instruction was knowing and intelligent was based on an unreasonable determination of the facts; (3) the Illinois Supreme Court unreasonably applied clearly established precedent in determining that the circuit court did not deprive him of the effective assistance of counsel when he was forced to proceed pro se regarding the consideration of a second-degree murder instruction; (4) the Illinois Supreme Court's rejection of his claim that counsel was ineffective at the jury instruction conference was contrary to, and an unreasonable application of, clearly established precedent; (5) his due process rights were denied by the State's knowing use of false testimony; (6) the suppression of material, non-cumulative impeachment and exculpatory evidence deprived him of a fair trial; (7) his trial counsel was ineffective for failing to fully investigate the victim's background and provide evidence of his violent character, investigate the criminal histories of the State's inmate witnesses, interview the State's motive witness, and object to the not-guilty verdict forms, and his appellate counsel was ineffective for failing to raise the verdict form issue on appeal; and (8) the Illinois Appellate Court's rejection of his cumulative error claim was contrary to, and an unreasonable application of, clearly established federal law. The matter is now fully briefed, and the State has moved to dismiss the Petition as untimely. This Order follows.
I. Timeliness of Petition
There are statutory time limits which govern whether a district court can entertain a petition for writ of habeas corpus. The present case is covered by 28 U.S.C. § 2244, which states in relevant part:
A 1 year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...