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Gay v. Johnson

May 28, 2009

ANTHONY GAY, PETITIONER,
v.
YOLANDA JOHNSON, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on Petitioner, Anthony Gay's ("Gay"), Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Motion for Leave to Proceed In Forma Pauperis [#1] is DENIED, the Motion to Appoint Counsel [#2] is DENIED, and the Petition is DISMISSED FOR LACK OF JURISDICTION.

BACKGROUND AND PROCEDURAL HISTORY

The following dates are taken from Petitioner's proposed Petition. On August 7, 2001, Gay was convicted of aggravated battery in the Circuit Court for Livingston County, Illinois. He was sentenced to five years' imprisonment. Gay pursued an appeal to the Illinois Appellate Court, and his sentence was affirmed on September 6, 2002. He filed a Petition for Leave to Appeal to the Illinois Supreme Court, which was denied on December 5, 2002.

Gay then initiated an attempt to collaterally attack his sentence and conviction through a post-conviction petition pursuant to 725 ILCS 5/122-1 in the Circuit Court of Livingston County. On March 21, 2003, his petition was summarily dismissed. Although the Court has been unable to verify that any appeal was taken with respect to this petition, Gay asserts that he appealed and that following an evidentiary hearing, the Appellate Court denied post-conviction relief on May 9, 2007. Gay does not contend that he pursued a Petition for Leave to Appeal to the Illinois Supreme Court, and the Court's research has not uncovered any such filing.

Gay filed the present Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 26, 2009. This Order follows.

DISCUSSION

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 limitation period shall run from the latest of -

(A) the date on which the 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 was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;

(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. ยง 2244(d)(1). The time during which a properly filed application for post-conviction or other collateral review is pending in the state courts is not counted toward any ...


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