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United States ex rel Jaynes v. Hulick

July 21, 2009

UNITED STATES OF AMERICA EX REL., ANTHONY JAYNES PETITIONER,
v.
DONALD HULICK, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.,

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Respondent Donald Hulick's motion to dismiss [16] Petitioner Anthony Jaynes' petition for habeas corpus [6] on the ground that the petition is time barred under the one year statute of limitations that applies to federal habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). For the reasons stated below, Respondent's motion [16] is granted.

I. Background

On November 20, 1995, Petitioner was found guilty by a jury of two counts of first degree murder and sentenced to seventy years in prison in the Circuit Court of Cook County. He is now in the custody of Respondent Donald Hulick, the Warden of Menard Correctional Center.

On August 26, 1998, the Illinois Appellate Court, First District, on direct appeal, affirmed Petitioner's conviction. Petitioner subsequently filed a petition for leave to appeal ("PLA") in the Illinois Supreme Court, which was denied December 2, 1998. Petitioner did not file a petition for certiorari with the United States Supreme Court at that time. On November 17, 1998, before the Illinois Supreme Court denied his PLA, Petitioner filed a petition for post-conviction relief in the Circuit Court of Cook County. He then filed two supplements to that petition on May 20, 2001 and January 15, 2004. The Circuit Court dismissed the post-conviction petitions on October 26, 2004. Petitioner appealed that dismissal, and the Appellate Court of Illinois, First District, affirmed the Circuit Court's dismissal on June 19, 2006. On November 29, 2006, the Illinois Supreme Court denied his PLA. Petitioner then filed a petition for writ of certiorari in the Supreme Court of the United States on February 18, 2007. The Court denied the petition on October 1, 2007.

On July 7, 2008, Petitioner filed his petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. Petitioner raises ten substantive issues: (i) the trial court erred during jury selection; (ii) the trial court erred in failing to properly instruct the jury; (iii) the trial court admitted photographs to the jury that was prejudicial to petitioner; (iv) state evidence does not prove defendant guilty beyond a reasonable doubt; (v) the trial court erred by admitting into evidence inflammatory details about threats and intimidation experienced by state witnesses; (vi) the trial court erroneously admitted hearsay testimony about another crime allegedly committed by petitioner; (vii) petitioner was denied a fair trial and due process; (viii) petitioner was denied a fair trial by repeated improper comments during closing and rebuttal arguments; (ix) ineffective assistance of trial and appellate counsel; and (x) abuse of discretion by sentencing defendant to a seventy year extended term.

II. Analysis

It is undisputed that Petitioner has no further state court avenues of review, and thus he has exhausted his available state remedies as required by 28 U.S.C. § 2254(b). The question raised in Respondent's motion is whether the petition should be dismissed as untimely under the one year statute of limitations for Section 2254 petitions set forth in 28 U.S.C. § 2244(d)(1).

That one year period begins to run from the latest of four specified dates. Here, the only pertinent initiating date is found in Section 2244(d)(1)(A) which provides "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." The disposition of this case turns on when Petitioner's judgment became final for purposes of Section 2244, which is determined by the date on which Petitioner's time to seek direct review expired. Respondent contends that, because Petitioner did not seek certiorari in the United States Supreme Court on direct review, the judgment became final 90 days after the Illinois Supreme Court denied Petitioner's PLA in 1998. Petitioner, espousing a unique understanding of direct review, argues that the judgment did not become final until the denial of his petition for certiorari following his post-conviction review. The Court agrees with Respondent and therefore must dismiss Petitioner's habeas petition as untimely.

It is only upon conclusion of direct review or the expiration of the time period allowed to seek such review that judgment becomes final and the limitation period begins to run. In Illinois, direct review can include appeal to the Appellate Court, followed by discretionary review by the Illinois Supreme Court, and a petition for certiorari with the United States Supreme Court. See Jones v. Hulick, 449 F.3d 784, 788 (7th Cir. 2006) (Illinois Appellate Court affirmed defendant's conviction, the Illinois Supreme Court denied his PLA, and the conviction became final 90 days later when the time to file a petition for certiorari expired). A petition for certiorari is the last possible step of direct review which, if sought and granted, may delay the initiation of the limitations period. If a petitioner fails to file a petition for United States Supreme Court review within 90 days of reaching the end of the road in the state court system, that opportunity is forever lost and the limitations period begins to run. The rule is so well-established at this point that courts only discuss it in passing.*fn1 See, e.g., id.; Lo v. Endicott, 506 F.3d 572, 574 (7th Cir. 2007); Balsewicz v. Kingston, 425 F.3d 1029, 1032 (7th Cir. 2005); Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002); Powell v. Davis, 415 F.3d 722, 726 (7th Cir. 2005). Nevertheless, Petitioner argues, without any support in the case law, that his right to bring a direct appeal somehow survives the 90 day period. The term "expiration of the time for seeking such review" would be meaningless if Petitioner's argument were accepted because there would be no ascertainable way to define that time. The 90 day period provides that outer limit and by failing to file a petition for certiorari in those 90 days, Petitioner lost the right to do so.

The Court rejects Petitioner's contention that "Section 2244(d)(1)(A) does not identify nor limit its application to a specific point in a state prisoner's Appellate Process that constitute a 'direct review or the time for seeking such review' other than to regulate it to immediately following an adverse decision of a States Supreme Court review of a state prisoner's judgment or conviction." This argument fails not only in light of the firmly established meaning of that phrase, discussed above, but also because Section 2244(d) clearly differentiates between "direct review" and "State post-conviction or other collateral review." The conclusion of the former initiates the limitations period, while the latter can toll that period if properly initiated. The statute is clear that a final judgment following direct review, rather than an "adverse decision by the state supreme court," triggers the imitations period.

Petitioner's argument that his petition for writ of certiorari to the Supreme Court filed February 18, 2007, should be accepted as a continuation of his "direct appeal" must be rejected for the additional reason that an untenable uncertainty would result. Petitioner believes that his petition for certiorari should be viewed as part of his "direct appeal," which would toll the limitations period pursuant to Section 2244(d)(1)(A). See Lawrence v. FLorida, 549 U.S. 327, 332 (2007). As an initial matter, Section 2244(d)(1)(A) does not toll the limitations period -- it simply determines when the clock starts running. Following Petitioner's suggestion to its logical conclusion, if a defendant could "reserve" his direct appeal, the limitations period could not begin and state judgments would not become final following direct review if the defendant did not file a petition for certiorari to the Supreme Court. Congress revealed its intention to start the limitations period at a definable point to avoid such uncertainty. AEDPA's limitations period, with permissible tolling allowances, "promotes the exhaustion of state remedies while respecting the interest in the finality of state court judgments." Duncan v. Walker, 533 U.S. 167, 178 (2001). For this additional reason, the Court rejects Petitioner's argument.

Plaintiff contends that his petition should be deemed to be timely because the Clerk of the Supreme Court, who is prohibited from filing any petition that is jurisdictionally out of time, accepted his petition. There are two problems with this argument. First, the Supreme Court has held that the strict prohibition on accepting an untimely petition does not apply to criminal cases. See Bowles v. Russell, 127 S.Ct. 2360, 2365 (2007). Second, even if the prohibition currently applied, the Clerk's acceptance of the petition merely underscores that the petition was viewed as a request to review the Illinois Appellate Court's denial of his post-conviction petition. In fact, that is how the 2007 petition appears on the Supreme Court docket -- as a petition to review the state court decisions of June 19, 2006 and November 29, 2006, not the decisions from 1998. If Petitioner had tried to file a certiorari ...


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