The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Now before the Court is Petitioner, Armando Manrique's ("Manrique"), Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition [#9] is DISMISSED as untimely.
Manrique is currently incarcerated at the Dixon Correctional Center in Dixon, Illinois.
Manrique was a passenger in a rented motor home in which he and five others had been traveling on Interstate 80. On November 6, 1995, the Illinois State Police pulled over the motor home for speeding, and, after receiving permission to search the vehicle from the driver, Andrew Elken Montoya ("Montoya"), found over 1000 pounds of cocaine.
Following a jury trial in the Circuit Court of Henry County, Illinois, Manrique was convicted of controlled substance trafficking, unlawful possession of a controlled substance, and unlawful possession with intent to deliver a controlled substance. He was sentenced to fifty-six years of incarceration.
Manrique appealed, arguing that the trial court erred in denying his pre-trial motion to suppress the drug evidence. The appellate court rejected that argument and affirmed his conviction and sentence, in an unpublished order issued August 21, 1997. The Illinois Supreme Court denied his subsequent petition for leave to appeal ("PLA") on December 3, 1997.
On June 8, 1998, Manrique filed a pro se post-conviction petition, alleging, among other things, that his trial attorney was ineffective because he failed to call Montoya (both at the suppression hearing and at trial) to testify that while Manrique was traveling with him in the motor home containing 1000 pounds of cocaine, Manrique did not know about the drugs. The post-conviction court dismissed the petition as frivolous and patently without merit on August 18, 1998. On appeal, the appellate court reversed and remanded for further proceedings because the judge had relied on the State's written response to dismiss the petition at the first stage of proceedings, while Illinois law barred such reliance until the next stage.
On remand, the State filed a written response to the petition and included an affidavit from Manrique's trial attorney attesting that Montoya's trial attorney stated that (a) she would not allow counsel to interview Montoya and (2) Montoya would plead his fifth amendment right against self incrimination if called as a witness by Manrique. Following an evidentiary hearing on January 18, 2001, at which both Manrique and his trial attorney testified, the court denied post-conviction relief, finding that counsel's performance was not deficient because Montoya was unavailable as a witness during Manrique's trial and that, even if Montoya had testified on Manrique's behalf, there was no reasonable probability that the outcome would have been different. On appeal, appointed counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and the appellate court affirmed the denial of post-conviction relief in an unpublished order issued October 19, 2001.
On February 15, 2002, Manrique filed a second pro se post-conviction petition alleging a claim of actual innocence. Manrique attached his own affidavit and that of Montoya stating that Montoya was willing to testify that Manrique had no knowledge of the cocaine. The trial court denied the petition on April 5, 2002, and Manrique appealed.
On appeal, the appellate court reversed and remanded for further proceedings, finding that dismissal was improper because Manrique had stated the gist of a claim of actual innocence, in a published opinion filed July 23, 2004. The State's subsequent PLA was denied on November 24, 2004. On remand, appointed counsel filed an amended petition and an amended affidavit from Montoya, attesting that Montoya was willing to testify at Manrique's trial and would have testified that Manrique did not know about the cocaine. The State filed an answer, and an evidentiary hearing was held on December 16, 2005. Following testimony and argument, the court denied post-conviction relief, concluding that Manrique's jury would not have reached a different verdict had it heard Montoya's testimony.
Manrique appealed, and the state appellate court affirmed the denial of post-conviction relief. The Illinois Supreme Court denied Manrique's subsequent PLA on September 26, 2007.
On March 19, 2008, Manrique mailed his § 2254 petition, alleging that (1) trial counsel was ineffective because he failed to investigate or call Montoya to testify at trial to corroborate that Manrique did not know about the cocaine and (2) the state post-conviction court erred in denying his free-standing actual innocence claim. Respondent has moved to dismiss the ...