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United States ex rel Freeman v. Hulick

April 16, 2010

UNITED STATES OF AMERICA EX REL. ANDRE FREEMAN, PETITIONER,
v.
DON HULICK, WARDEN, MENARD JUDGE DAVID H. COAR CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: David H. Coar United States District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Andre Freeman ("Petitioner" or "Freeman") brings a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before this Court are Freeman's petition and the State's motion to dismiss this petition as time-barred. For the reasons stated below, the Court finds that Freeman's habeas petition is untimely. Accordingly, the State's motion to dismiss is GRANTED, and Freeman's petition is DENIED.

BACKGROUND

After a jury trial in the Circuit Court of Cook County, Freeman was convicted of first-degree murder and armed robbery on January 10, 1995. The court merged the two counts and sentenced Freeman to 100 years' imprisonment. He is now in the custody of Don Hulick, the warden of Menard Correctional Center.

Freeman appealed his conviction, and on direct appeal, the Illinois Appellate Court, First District, affirmed Freeman's conviction and sentence on December 23, 1996. Freeman did not file a petition for leave to appeal ("PLA") this decision in the Illinois Supreme Court.

Through counsel, Freeman filed a petition for post-conviction relief pursuant to 725 ILCS 5/122-1, et seq. on October 1, 1999. The Circuit Court of Cook County summarily dismissed this petition as frivolous and patently without merit on October 13, 1999. On February 24, 2003, Freeman filed a second petition for post-conviction relief pro se in the Circuit Court of Cook County. The court dismissed Freeman's second petition as frivolous and patently without merit, and the Illinois Appellate Court, First District, affirmed that dismissal. Freeman filed a PLA in the Illinois Supreme Court, which was denied on December 1, 2005. People v. Freeman, 844 N.E.2d 42 (Ill. 2005). On May 30, 2006, the United States Supreme Court denied Freeman's petition for a writ of certiorari. Freeman v. Illinois, 126 S.Ct. 2321 (2006).

On January 13, 2005, Freeman filed a pro se motion for relief from judgment in the Circuit Court of Cook County pursuant to 735 ILCS 5/2-1401. In this motion, Freeman argued that his sentence was void because: (1) the trial court did not base its imposition of an extended-term sentence on statutorily permissible aggravating factors, and (2) the facts warranting an extended term were neither charged in Freeman's indictment nor proven to the jury beyond a reasonable doubt. The court construed this motion as a successive post-conviction petition and dismissed it as frivolous and patently without merit on March 2, 2005. On August 4, 2006, the Illinois Appellate Court, First District, vacated and remanded the trial court's order because the trial court did not properly notify Freeman that his motion was construed as a successive post-conviction petition and did not inform Freeman of the consequences of that characterization. Freeman's motion was still pending on remand in the Circuit Court of Cook County at the time the State filed the instant motion to dismiss.*fn1

On April 31, 2006, Freeman filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn2 In his petition, Freeman raises the following claims:

(1) Trial counsel was ineffective for failing to investigate and develop an alibi defense;

(2) Appellate counsel was ineffective for failing to raise the following issues on direct appeal:

a. Freeman was arrested illegally on April 5, 1993, and evidence stemming from that illegal arrest should have been suppressed;

b. Freeman was arrested illegally on April 6, 1993, and evidence stemming from that illegal arrest should have been suppressed; and

c. Freeman's juvenile transfer hearing was inadequate;

(3) The trial court erred when it failed to quash the April 5, 1993 arrest and suppress the evidence that ...


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