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United State ex rel Penny v. Detella

August 27, 2009

UNITED STATE OF AMERICA EX REL. MICHAEL PENNY, PETITIONER,
v.
GEORGE DETELLA, WARDEN RESPONDENT.



The opinion of the court was delivered by: Honorable Marvin E. Aspen United States District Judge

Judge Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge

After a jury trial in 1993, Petitioner Michael Penny ("Petitioner" or "Penny") was convicted of armed violence; possession of a controlled substance, heroin, with intent to deliver; and possession of a controlled substance, cocaine, with intent to deliver. See U.S. ex rel. Penny v. DeTella, No. 97 CV 5674, 2009 WL 1309461, *2 (N.D. Ill. May 11, 2009). He was sentenced to natural life in prison for the armed violence conviction, with a concurrent fourteen-year term for possession of cocaine with intent to deliver.*fn1 Id. Presently before us is Penny's motion for a certificate of appealability ("COA"). For the reasons stated below, we deny Penny's request for a COA.

BACKGROUND

Because of the many dates surrounding Penny's habeas petition and the fact that he is contesting the statute of limitations, we briefly address the background of Penny's state and federal post-conviction proceedings. On October 2, 1996 the Supreme Court of Illinois denied Penny's petition for leave to appeal ("PLA") on direct appeal. Penny, 2009 WL 1309461, at *3. Subsequently, on August 7, 1997, Penny simultaneously filed his first federal habeas corpus petition and a motion to stay the federal proceedings. Id. Because Penny had failed to exhaust his state remedies, his petition was dismissed and his motion to stay was denied. Id. Also on August 7, 1997, Penny filed the first of his two state post-conviction petitions for relief under the Illinois Post-Conviction Hearing Act ("IPCHA"), 725 ILCE 5/122. Id. The state court dismissed this petition as untimely and, alternatively, as without merit. Id. The Illinois Appellate Court affirmed the dismissal of Penny's petition as untimely and the Illinois Supreme Court denied Penny's PLA. Id. at *4. On July 17, 2000 Penny filed a motion to stay his federal habeas petition, which we denied as moot because we had previously dismissed his petition for writ of habeas corpus. Id. Penny then filed a second post-conviction petition in Illinois state court on February 7, 2000. Id. This petition was ultimately dismissed on the merits by the Circuit Court on November 3, 2005. Id. at *5. The Illinois Appellate Court affirmed the dismissal on February 13, 2008 and the Illinois Supreme Court denied Penny's PLA on May 29, 2008. Id. On July 15, 2008, Penny moved to reinstate and amend his federal habeas corpus petition, which we permitted on July 21, 2008. Id. at *6. On May 11, 2009, we granted Respondent's motion to dismiss because Penny's petition for writ of habeas corpus did not satisfy the one-year statute of limitations. Id. at *7. Now before us is Penny's application for a COA.

STANDARD OF REVIEW

A COA is required for an appeal from a final order in a habeas corpus proceeding under 28 U.S.C. §§ 2254 or 2255. See 28 U.S.C. § 2253(c). "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595 (2000), the Supreme Court laid out two methods by which a district court is to evaluate a request for a COA. Id. at 483-84, 1205 S.Ct. at 1603-04. First, if the district court rejected a petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessments of the constitutional claims debatable or wrong," id. at 484, or that "the issues presented were 'adequate to deserve encouragement to proceed further,'" id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4, 103 S.Ct. 3383, 3395 (1983)). Alternatively, if the district court rejected "a petitioner's claims on procedural grounds without reaching the prisoner's underlying constitutional claim," it should only issue a COA "when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484 (emphasis added).

ANALYSIS

Penny presents the following issues for appeal: 1) differing federal jurists would find that the district court erred in ruling that his habeas petition was time-barred; 2) differing federal jurists would find that the discovery date of his trial counsel's conflict of interest triggered tolling under § 2244(d)(1)(D); 3) differing federal jurists would find that Rule 60(b) was irrelevant to the instant habeas proceeding; 4) we erred by making factual determinations without conducting a full evidentiary hearing; 5) we should have determined the substantive constitutional violations despite any procedural deficiencies; and 6) we erred by dismissing the habeas corpus petition without ruling on whether it was with or without prejudice. (Pet. at 2-3.)

We dismissed Penny's habeas petition on May 11, 2009 based upon procedural grounds. We found that: 1) his petition was time-barred because it was filed outside the one-year statute of limitations (Penny, 2009 WL 1309461, at *6); 2) the statute of limitations should not be tolled under § 2244(d)(2) (id. at *7); 3) there were no extraordinary circumstances that would extend the statute of limitations through equitable tolling (id. at *9-10); 4) even if the 1997 denial of stay was erroneous, the decision could not be vacated (id. at *11); and 5) Penny's contention that he discovered the factual basis of his trial counsel's alleged conflict of interest did not satisfy the requirements for extending the statute of limitations (id. at *12). On June 1, 2009, Penny filed the present application for a COA in which he disputes our procedural ruling that his petition was untimely, asserting that 28 U.S.C. § 2244(d)(2) or § 2244(d)(1)(D)'s tolling provisions should apply to his petition. For the reasons discussed below, we deny his application for a COA.

A. Penny's Habeas Petition Was Time-Barred

Penny claims that differing federal jurists would find that we erred in ruling that his habeas petition was time-barred and contends that the one-year statute of limitations under ยง 2244(d) should be extended ...


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