The opinion of the court was delivered by: Jeanne E. Scott United States District Judge
JEANNE E. SCOTT, U.S. District Judge
This matter comes before the Court on Respondent's Motion to Dismiss (d/e 8) (Motion). The Respondent moves to dismiss Petitioner Christopher Gavin's Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254 (d/e 3) (Petition) because the Petition is barred by the statute of limitations. For the reasons set forth below, the Motion is ALLOWED.
In 2002, Petitioner Christopher Gavin was convicted in Adams County, Illinois, Circuit Court of possession of a controlled substance with intent to deliver and unlawful delivery of a controlled substance. The Illinois Appellate Court affirmed the conviction on July 12, 2004. Exhibits to Motion to Dismiss (d/e 9), Exhibit A, Rule 23 Order, People v. Gavin, No. 4-02-1049. Gavin filed a Petition for Leave to Appeal (PLA) with the Illinois Supreme Court. The Illinois Supreme Court denied the PLA on October 6, 2004. Motion, Exhibit B, Order Denying PLA, People v. Gavin, No. 98871. Gavin did not file a petition for writ of certiorari with the United States Supreme Court.
On January 14, 2005, Gavin filed a post-conviction petition in Adams County Circuit Court. Motion, Exhibit C, Post-conviction Petition, People v. Gavin, No. 02 CF 82. The post-conviction petition was dismissed. The Appellate Court affirmed the dismissal on December 10, 2007. Motion, Exhibit H, Rule 23 Order, People v. Gavin, No. 4-06-1057. Gavin filed a PLA. The Illinois Supreme Court denied the PLA on May 29, 2008. Motion, Exhibit I, Order Denying PLA, People v. Gavin, No. 106221. The Order denying the PLA stated that the mandate would issue on July 3, 2008. Id.
In 2009, Gavin filed this Petition. Gavin's attached Certificate of Service stated that he mailed the Petition on May 15, 2009, but did not state that first class postage was prepaid. Petition, attached Proof/Certificate of Service (Certificate of Service). Gavin signed the Certificate of Service under penalty of perjury. Id. The Respondent's records indicate that Gavin filed a request for payment of postage for legal mail on May 27, 2009. Motion, Exhibits J, Offender Authorization for Payment. Gavin did not make a request for payment of postage any other time in April or May 2009. Motion, Exhibit L, Affidavits of Gena Mettler, ¶ 5. The Court received the Petition on June 3, 2009.
The Respondent moves to dismiss the Petition because the Petition is barred by the statute of limitations. The Court agrees. A § 2254 habeas petition must be filed within one year of 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 State 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 has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(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 one-year statute is tolled while a properly filed state post-conviction petition is pending. 28 U.S.C. § 2244(d)(2). In Gavin's case, the statute began to run on the date that his judgment became final. He presents no ...