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United States ex rel Alvarez v. McCann

June 9, 2009

UNITED STATES OF AMERICA EX REL. IGNACIO ALVAREZ, PETITIONER,
v.
TERRY MCCANN, RESPONDENT.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM OPINION AND ORDER

This case is before the court on the motion of respondent Terry McCann to dismiss the petition for writ of habeas corpus filed by petitioner Ignacio Alvarez. For the reasons set forth below, the motion to dismiss is granted and this case is terminated.

BACKGROUND

Petitioner Ignacio Alvarez ("Alvarez") is currently incarcerated at the Stateville Correctional Center in Joliet, Illinois. Following a 2001 jury trial in the Circuit Court of Cook County, Alvarez was convicted of first degree murder and attempted first degree murder. Rule 23 Order at 1, People v. Alvarez, No. 1-01-3900 (Ill. App. 2003). Alvarez was then sentenced to concurrent terms of thirty-eight years and twenty years imprisonment for the two offenses. Id. Alvarez filed an appeal to the Illinois Appellate Court, which affirmed his conviction and sentence on August 27, 2003. Id. at 29. Alvarez did not file an affidavit of intent to file a petition for leave to appeal (PLA) to the Illinois Supreme Court or a PLA to the Illinois Supreme Court. See Letter from Clerk of Illinois Supreme Court (Mot., Exh B).

On June 23, 2005, Alvarez filed a petition for post-conviction relief in the Circuit Court of Cook County pursuant to 725 ILCS 5/122-1. See Post-conviction Petition, People v. Alvarez, No. 00 CR 7014. The petition was summarily dismissed on August 26, 2005. Order Dismissing Post-conviction Petition, People v. Alvarez, No. 00 CR 7014. The Illinois Appellate Court affirmed the denial of Alvarez's post-conviction petition on March 13, 2007. Rule 23 Order, People v. Alvarez, No. 1-05-3349 (Ill. App. 2007). Alvarez then filed a PLA in the Illinois Supreme Court, which the Court denied on March 26, 2008. Order Denying PLA, People v. Alvarez, No. 104536 (Ill. 2008).

On October 31, 2008, Alvarez filed a Section 2254 petition for a writ of habeas corpus in this court alleging that he received ineffective assistance of counsel due to his trial counsel's failure to: (1) investigate potential witnesses that could have proven Alvarez's innocence; and (2) provide a proper defense by presenting the testimony of certain witnesses, specifically Irving Depaz. On February 24, 2009, respondent filed a motion to dismiss Alvarez's petition as untimely. We now turn to that motion.

LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires a state prisoner seeking habeas corpus relief to file a petition within one year after the conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). In Illinois, the judgment of a court of review is final on the day in which the decision is entered. See Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002) (citing PSL Realty Co. v. Granite Inv. Co., 427 N.E.2d 563 (1981)).

Respondent argues that Alvarez's petition for a writ of habeas corpus is time-barred by the one year statute of limitations found in the AEDPA. 28 U.S.C. § 2244(d)(1). The AEDPA provides that the statute of limitations period begins at the occurrence of one of four events:

(A) the date on which the judgment becomes final by conclusion of direct review or the expiration of the time for seeking 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 and made retroactively applicable to cases on collateral review; or

(D) the date in which the factual predicate of the claim or claims presented could have been discovered through the exercise due diligence.

Id. The AEDPA also contains a tolling provision which states that "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any ...


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