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Baker v. Acevedo

December 30, 2009

DAVID A. BAKER, PETITIONER,
v.
GERARD ACEVEDO, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on Petitioner, David Baker's ("Baker"), Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Respondent's Motion to Dismiss [#11] is GRANTED, and the § 2254 Petition [#1] is DISMISSED.

BACKGROUND AND PROCEDURAL HISTORY

In 2002, Baker was charged with two counts of first degree murder and one count of aggravated battery with a firearm in the Circuit Court of Peoria County. On May 10, 2004, he pled guilty to the aggravated battery charge and was sentenced to 25-years' imprisonment. After unsuccessfully attempting to withdraw his guilty plea, he filed a notice of appeal. Baker's conviction and sentence were affirmed on direct appeal by the Illinois Appellate Court on January 26, 2006. Baker's petition for leave to appeal ("PLA") to the Illinois Supreme Court was denied on May 24, 2006, bringing his direct appeal to a conclusion.

On November 3, 2006, Baker filed a post-conviction petition in which he raised essentially three claims: (1) his trial counsel was ineffective because he suffered from mental illness during his representation of Petitioner, and he incorrectly advised Petitioner about his potential sentence if he went to trial; (2) his appellate counsel was ineffective for withdrawing without properly investigating his ineffective assistance claim; and (3) the charges violated the Double Jeopardy clause. The petition was denied, and on May 5, 2008, the Illinois Appellate Court affirmed the denial of the petition. Baker then filed a PLA to the Illinois Supreme Court. His PLA was denied on September 24, 2008.

Baker now brings the present action seeking federal review of his state court proceedings. Although the Court did not receive the petition until August 12, 2009, his proof of service asserts that he placed it in the prison mail on July 17, 2009. In his Petition, he raises essentially four arguments: (1) his trial counsel was ineffective and suffered from mental illness during his representation of Petitioner; (2) ineffective assistance of appellate counsel; (3) the charges violated the Double Jeopardy clause; and (4) the trial court erred in not considering his post-conviction petition in its entirety. The State has filed its response, and this Order follows.

DISCUSSION

There are statutory time limits which govern whether a district court can entertain a petition for writ of habeas corpus. The present case is covered by 28 U.S.C. § 2244, which states in relevant part:

A 1 year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 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, if the right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The time during which a properly filed application for post-conviction or other collateral review is pending in the state courts is not counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).

In the present case, Baker alleges that he is entitled to relief because of errors purportedly made by his attorneys and the trial court. He makes no assertion that there is any newly recognized constitutional right, that he was prevented from filing, or that he was unable to discover the factual predicate for his claims through the exercise of due ...


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