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United States ex rel Harper v. Montgomery

February 26, 2010

UNITED STATES OF AMERICA EX REL. ELLIOTT HARPER, PETITIONER,
v.
JESSE MONTGOMERY, CHIEF OF PAROLE, ILLINOIS DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Elliott Harper has moved for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent argues that the petition should be dismissed as untimely. For the reasons set forth below, I agree.

I. Background

On May 29, 1997, Harper pled guilty to one count of first-degree murder, for which he was sentenced to twenty-four years of imprisonment, and one count of attempted murder, for which he was sentenced to a consecutive term of six years. The State's evidence showed that Harper, a member of the Gangster Disciples gang, was in a feud with his victim, Lorenzo Aldridge. On March 20, 1995, Harper fired multiple gunshots into Aldridge's car, which contained not only Aldridge, but also three others. Aldridge died from five gunshot wounds, and a second, surviving victim sustained an injury to his face.

At the time of sentencing, Harper had been in custody for 798 days, and the trial court issued orders crediting Harper for "time served," awarding him 798 days for each of his two convictions, for a total of 1596 days. Harper did not appeal his judgment of conviction. In a letter dated January 5, 1998, Harper's attorney advised him: "It appears that the Department of Corrections has chosen not to abide by court orders regarding the time served in consecutive cases." Pet. at 19. On August 28, 1998, Harper filed a motion to correct his mittimus to reflect that he had received double credit for time served. The trial court denied his motion.

Harper appealed, and the assistant public defender appointed to represent Harper moved to withdraw, stating that the record presented no issues of arguable merit. The appellate court granted counsel's motion and affirmed on May 29, 1999, holding that the relief petitioner sought -- a modification of his mittimus to allow double credit for time served -- was prohibited by a then recent decision of the Illinois Supreme Court, People v. Latona, 703 N.E.2d 901 (Ill. 1998). Harper did not file a petition for leave to appeal ("PLA") from this judgment.

On March 8, 1999, Harper filed a pro se post-conviction petition in the Circuit Court of Cook County, alleging that:

(1) his plea agreement was invalid because the trial court erroneously informed him that he would receive double credit for time served; (2) trial counsel was ineffective for advising Harper that he would receive double credit for time served; and (3) the trial court abused its discretion in sentencing him to an excessive term. Appointed counsel filed two supplements arguing, in pertinent part, that Harper's due process rights were violated because he was denied the benefit of his plea bargain. The circuit court dismissed Harper's post-conviction petition, including all supplements.

Harper appealed this judgment, arguing that he was deprived of the benefit of his plea bargain with the State and asking the court to reduce his sentence by 798 days as a remedy. Harper made clear that he "[did] not challenge the voluntariness of his plea, but only [sought] to have the plea agreement enforced." Resp. Exh. K at 2. The state appellate court affirmed in a published opinion on December 19, 2008, holding that it lacked authority to grant Harper the relief he sought. The court denied Harper's petition for rehearing on January 29, 2009. Harper filed a PLA in the Illinois Supreme Court, contending that the appellate court incorrectly held that it lacked authority to grant the relief he sought. The court denied leave to appeal on May 28, 2009.

On September 22, 2009 (the date Harper placed his petition in the mail), Harper filed the instant petition. See Rule 3(d) of the Rules Governing Section 2254 Cases in the United States District Courts. Harper raised the following claims: (1) he was denied due process because he received a sentence greater than that for which he bargained; (2) trial counsel provided ineffective assistance because he failed to advise Harper that could not receive double credit for time served; and (3) Harper's plea bargain is invalid*fn1 because counsel and the court erroneously advised him that he could receive double credit for time served.

On December 23, 2009, respondent answered. Despite being given an opportunity to do so, Harper did not file any reply to the response. Since filing the petition, Harper has been released from prison*fn2 on mandatory supervised release.

II. Analysis

Congress has established a one-year period of limitation governing motions for collateral relief under 28 U.S.C. ยง 2254. The limitation period runs from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on ...


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