The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Petitioner, Steven Bradley, filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus By a Person in State Custody (#1) on November 30, 2009. Respondent, Randy Grounds, Warden of Robinson Correctional Center, filed his Motion to Dismiss Habeas Corpus Petition as Time Barred (#9) on March 9, 2010. For the following reasons, Respondent's Motion to Dismiss (#9) is GRANTED and Petitioner's Petition (#1) is DISMISSED with prejudice.
In October 2004, a grand jury indicted Petitioner on one count of criminal sexual assault in the Circuit Court of Champaign County. The indictment alleged that on October 20, 2004, Petitioner committed an act of sexual penetration on N.H. knowing that N.H. was unable to give knowing consent. A second count of criminal sexual assault was filed in February 2005. In 2005, Petitioner was sentenced to fifteen years of imprisonment after a Champaign County jury convicted him of one count of criminal sexual assault (that the victim was unable to give knowing consent) and acquitted him of a second count of criminal sexual assault (use of force).
On direct appeal, Petitioner's conviction was affirmed by the Illinois Appellate Court and, on November 29, 2006, the Illinois Supreme Court denied his petition for leave to appeal (PLA). Petitioner did not seek a writ of certiori in the Supreme Court of the United States, so the judgment became final 90 days later on February 27, 2007.
On May 22, 2007, Petitioner filed a post-conviction relief petition that was dismissed by the trial court on June 12, 2007. On June 6, 2008, the state appellate court affirmed the dismissal. The Illinois Supreme Court denied leave to appeal on November 26, 2008. Petitioner then filed a writ of certiorari with the United States Supreme Court but this was denied on May 18, 2009. Petitioner signed the present habeas petition in question on November 19, 2009.
I. ONE-YEAR LIMITATION PERIOD
Under 28 U.S.C. § 2244(d)(1), a petitioner in state custody has one year to file his petition for writ of habeas corpus. The limitation period runs from the latest of: (1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) the date on which the impediment to filing such an action 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; (3) the date on which the Constitutional right asserted was recognized by the U.S. Supreme Court, if it has been newly recognized by the Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim or claims presented could have been presented through the exercise of due diligence. 28 U.S.C. § 2241(d)(1)(A)-(D).
In the instant case, the issue is whether more than one year elapsed from the date on which the judgment against Petitioner became final before he filed his petition for habeas review. None of the other subsections apply. A judgment becomes final once direct review is concluded or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A). On direct review of a state court conviction, the one year limitations period does not begin until the highest state court in which review was sought has rendered its decision and the time for filing a writ of certiori to the U.S. Supreme Court has expired and/or the U.S. Supreme Court has rejected the writ or affirmed the conviction. See Jones v. Hulick, 449 F.3d 784, 787 (7th Cir. 2006). Once the direct review is concluded, the clock begins ticking on a petitioner's one year period of limitation in which to file for federal habeas review.
Even after a judgment becomes final, the one-year period of limitations for bringing a habeas claim can be tolled. 28 U.S.C. §2244 (d)(2) allows tolling for the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. However, the U.S. Supreme Court has held that the one-year limitations period is not tolled during the pendency of a petition for certiorari to the United States Supreme Court seeking review of a denial of state post-conviction relief. Lawrence v. Florida, 549 U.S. 327, 337 (2007).
In some jurisdictions, petitioner may be able to state a claim for equitable tolling. The Seventh Circuit has not yet ruled whether equitable tolling should or should not be available to habeas petitioners. Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008). In any event, in order for equitable tolling to apply, the petitioner bears the burden of establishing: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo 544 U.S. 408, 418 (2005). In this case, Petitioner has ...