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United States ex rel Strong v. Gaetz

September 21, 2009


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


A Lake County jury convicted Jason Strong of first degree murder, and a judge sentenced him to forty-six years in prison. Strong, who is incarcerated at Menard Correctional Center, has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent, Warden Donald Gaetz, moved the Court to dismiss Strong's petition as time-barred. The Court denied Gaetz's motion in January 2008. United States ex rel. Strong v. Hulick, 530 F. Supp. 2d 1034 (N.D. Ill. 2008). Gaetz then moved to reconsider. The Court determined that Gaetz's motion required an evidentiary hearing and appointed counsel to represent Strong. The Court held an evidentiary hearing in late March 2009.


Strong was convicted and sentenced in 2001. The Illinois Appellate Court affirmed his conviction on direct appeal, and the Illinois Supreme Court denied his petition for leave to appeal (PLA) on February 5, 2003. Strong did not file a petition for certiorari to the United States Supreme Court. The time for doing so expired on May 6, 2003.

On July 18, 2003, Strong filed a pro se petition for post-conviction relief in state court. The trial court denied the petition. Strong appealed, but the Illinois Appellate Court affirmed. The Illinois Supreme Court denied Strong's PLA on January 25, 2006. Strong filed his federal habeas corpus petition just under one year later, on January 23, 2007.

Assuming -- as ordinarily would be the case -- the one-year time clock for Strong to file a federal habeas corpus petition began to run on May 6, 2003 (the date the deadline expired for filing a petition for certiorari on direct review), seventy-three days ran off the clock between that date and July 18, 2003, when Strong filed his state post-conviction petition. Another 363 days ran between the date the Illinois Supreme Court denied Strong's post-conviction PLA and the date he filed his federal habeas corpus petition. If that time is added to the time that ran before Strong filed his state post-conviction petition, the total is well over one year.

As indicated earlier, Gaetz moved to dismiss Strong's petition as time-barred. Strong replied that he had not understood that the time between the completion of his direct appeal and the filing of his post-conviction petition counted against the one-year deadline. In this regard, Strong was in the same boat as many Illinois prisoners. It is rather common for prisoners to file, as Strong did, just under one year after completion of collateral review. Such petitions are typically untimely because, as a general rule, enough time ran before the inmate sought post-conviction relief in state court to make the total interval more than one year. Simple ignorance of the law in this regard, however, does not excuse late filing, even if the misunderstanding results from negligence on the part of the prisoner's attorney. See, e.g., Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006) ("Mistakes of law or ignorance of proper legal procedures are not extraordinary circumstances warranting invocation of the doctrine of equitable tolling."); Modrowski v. Mote, 322 F.3d 965, 968-69 (7th Cir. 2003) (attorney negligence is not ground for equitable tolling).

In opposing dismissal of his petition, however, Strong argued that he had been unable to get to the Menard prison law library, where he could have found out how the habeas corpus statute of limitations works. See Moore v. Battaglia, 456 F.3d 504, 507-08 (7th Cir. 2007) (suggesting that lack of access in prison to habeas corpus statute of limitations might prevent statute of limitations from running). Strong contended that access to the Menard law library is strictly controlled and depends in significant part upon whether the prisoner has an imminent filing deadline. He asserted that after his post-conviction appeal was completed, a prison law clerk (either a prison employee or a prisoner whose position was conferred by prison authorities) told him that he had a year to file his habeas corpus petition. As a result, he contended, he believed his deadline was further in the future than Gaetz contended. Due to law library access rules, Strong argued, he could not have gotten law library access as a prisoner with an imminent deadline. This, combined with prison lockdowns that prevented all prisoners from going to the law library and created a visitation backlog following the lockdowns, prevented him from getting to the library in enough time to file his habeas corpus petition by the deadline argued by Gaetz.

The Court denied Gaetz's motion to dismiss Strong's petition. The Court determined that Strong had shown that he received bad advice about the deadline that came from a person who -- based on reasonable inferences from the evidence -- acted pursuant to authority conferred upon him by the state.

And . . . prison staff rationed access to the law library based upon their understanding -- or in Strong's case, their misunderstanding -- of the particular prisoner's filing deadline. In short, Strong's perception of his filing deadline was created or at least significantly influenced by personnel who, albeit unwittingly, had the ability to prevent him from learning the truth.

Strong, 530 F. Supp. 2d at 1038 (footnote omitted). The Court determined that because Strong "was not considered to fall within the category of prisoners with 'imminent' deadlines . . ., [he] had no access at all to law library materials during lockdown periods. He was, as a result, unable to determine for himself during those periods how the statute of limitations worked." Id. at 1039. Based upon evidence concerning time periods during which Menard prison was on lockdown, the Court found, "Strong was unable to gain access to library materials that would have enabled him to learn the correct deadline, because of the aforementioned rules that gave library access only to those considered to have imminent deadlines." Id. at 1040. The Court concluded that "[t]he miscalculation of the due date for Strong's habeas petition by prison personnel and the resulting inaccessibility to Strong of the statute of limitations qualifies as state action impeding Strong from timely filing his petition within the meaning of [28 U.S.C. §] 2244(d)(1)(B) and/or the doctrine of equitable estoppel and/or tolling." Id. at 1042.

Gaetz then moved to reconsider, asking to supplement the factual record relating to Strong's assertions. As indicated earlier, the Court determined that Gaetz's motion required an evidentiary hearing and appointed counsel to represent Strong. The Court then held an evidentiary hearing at which Strong, head law librarian Krista Allsup (formerly Krista Schorn), inmate law clerk Brian Triplett-Daniels, and inmate law clerk Larry Johnson testified.*fn1 The parties also offered numerous exhibits. The Court finds the facts as follows.

1. Lockdowns at Menard Prison

In the period following the denial of Strong's post-conviction PLA, the South Lower cell house at Menard Correctional Center, where Strong resided, was placed on lockdown for significant periods. At Menard, lockdowns are designated by levels -- 1 through 4 -- corresponding to the restrictions that apply. The two types of lockdowns relevant in this case are level 1 and level 4 lockdowns. During level 1 lockdowns, all prisoners are confined to their cells. Level 4 lockdowns are less restrictive, but prisoners are still unable to go to the law library.

The time line for lockdowns from January 25, 2006 through January 31, 2007 is as follows:

- January 25 - February 2006 - eleven days on lockdown - January 30 - February 1 - level 1 - February 2-5 - level 4 - February 13-15 - level 1 - February 16 - level 4

- April 2006 - sixteen days on lockdown - April 7-11 - level 1

- April 19-20 - level 4 - April 21-24 - level 4 - May 2006 - eight days on lockdown - May 12-13 - level 1 - May 14-19 - level 4 - June - September 2006 - 101 days on lockdown - June 2-9 - level 1 - June 12 - July 19 - level 4 - July 21 - August 9 - level 1 - August 10 - September 13 - level 4 - November 2006 - three days on lockdown - November 11-13 - level 1 - December 2006 - one day on lockdown - December 31 - level 1 - January 2007 - two days on lockdown - January 30-31 - level 1

2. Access to the Menard Law Library

Inmates at Menard have limited access to the prison's law library even when their cell block is not on lockdown. As a general rule, an inmate may gain access to the law library only via a written request. The prison maintains a daily "call list" of inmates approved for a law library visit. An inmate may request a visit through a handwritten request ...

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