The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Petitioner Nestor Medina was convicted in 2003 of aggravated criminal sexual assault, aggravated kidnaping, and aggravated false impersonation of a police officer. He is serving a sentence of 80 years. On November 20, 2009, Medina filed a petition for habeas corpus under 28 U.S.C. § 2254. Respondent Gaetz moved to dismiss the petition as time-barred under the one-year statute of limitations imposed by 28 U.S.C. § 2244(d)(1). On April 23, 2010, this court denied Respondent's motion. Respondent now asks the court to reconsider its ruling. For the reasons explained here, the court concludes that its April 23, 2010 order was in error. The court therefore grants Respondent's motion for reconsideration, vacates its previous order, and dismisses Medina's § 2254 petition as time-barred under § 2244(d)(1).
On November 13, 2003, following a jury trial in the Circuit Court of Cook County, Illinois, Petitioner Nestor Medina was convicted of aggravated criminal sexual assault, aggravated kidnaping, and aggravated false impersonation of a police officer. (Respondent's Mot. to Dismiss the Petition for Writ of Habeas Corpus as Time-Barred ("Resp.'s Mot. to Dismiss") at 1-2.) Following his conviction, the trial court sentenced Medina to consecutive prison terms: 50 years for aggravated criminal sexual assault and 30 years for aggravated kidnaping, with an additional five- year concurrent sentence for aggravated false impersonation of a police officer. (Order, Ex. A to Resp.'s Mot. to Dismiss at 1.) The Illinois Appellate Court affirmed Medina's conviction on August 23, 2005. (Id. at 2). On May 24, 2006, the Illinois Supreme Court denied his petition for leave to appeal ("PLA"). (Ex. C to Resp.'s Mot. to Dismiss.) Medina did not seek review by the United States Supreme Court.
On December 26, 2006, Medina filed a post-conviction petition in the Circuit Court of Cook County. (Post-conviction Petition, Ex. D to Resp.'s Mot. to Dismiss.) That court promptly dismissed the petition, stating in an order dated January 9, 2007 that it found Medina's claim "entirely frivolous and patently without merit." (Order, Ex. E to Resp.'s Mot. to Dismiss at 11-12.) Medina filed a notice of appeal on February 9, 2007, but his appointed counsel moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987)*fn1 , acknowledging that the appeal "would be without arguable merit." (Mot. to Withdraw as Counsel, Ex. F to Resp.'s Mot. to Dismiss at 1-2.) On May 15, 2008, the Illinois Appellate Court granted the motion and affirmed the circuit court's denial of post-conviction relief. (Order, Ex. G to Resp.'s Mot. to Dismiss at 3.) Medina sought leave to appeal to the Illinois Supreme Court, but his PLA was denied on November 26, 2008. (Ex. I to Resp.'s Mot. to Dismiss.) Several months later, on February 9, 2009, Medina filed a petition for a writ of certiorari, which the United States Supreme Court denied on October 13, 2009. (Resp't.'s Mot. for Reconsideration at 2, n.1.)
On November 20, 2009, Medina filed a petition for habeas relief pursuant to 28 U.S.C. § 2254, raising seven claims. (Resp.'s Mot. for Reconsideration at 4-5.) Medina asserted that: (1) the state circuit court reviewing his post-conviction appeal erred in dismissing his petition based on its assessment of the "gist" of his constitutional claims; (2) the state trial court erred in giving the jury conflicting instructions on aggravated kidnaping; (3) he did not receive a fair and impartial trial because of a "pervasive" pattern of misconduct by the prosecutor; (4) the aggravated offenses of which he was convicted were not proven beyond a reasonable doubt; (5) his trial counsel was rendered ineffective by failing to object to "false and misleading statements" by the prosecutor, the conflicting/improper instructions given to the jury, and the "improper and excessive" sentence imposed by the court; (5) his appellate counsel was rendered ineffective by failing to raise all of Medina's proposed claims; (6) his sentence was "excessive and barbaric"; and (7) these factors cumulatively deprived him a fair trial. (Resp.'s Mot. to Dismiss at 4-5.)
In March 2010, Respondent Gaetz moved to dismiss Medina's petition as untimely under the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). (Minute Order, denying Resp.'s Mot. to Dismiss at 1, D.E. 18.) In support, Respondent observed that Medina's conviction became final on August 22, 2006, 90 days after the PLA was denied by the Illinois Supreme Court. (Id.) The statute of limitations clock started at that time and ran for 125 days until December 26, 2006, when it was tolled by Medina's filing of a state post-conviction petition. (Id.) The statute began running again on November 26, 2008, Respondent urged, when the Illinois Supreme Court denied Medina's PLA. Medina's § 2254 petition was not filed until November 20, 2009--116 days too late, according to Respondent.
In the original motion to dismiss, Respondent mistakenly asserted that Medina had not properly filed a petition for a writ of certiorari with the United States Supreme Court following his state post-conviction proceedings. (Id.) In fact, as Medina pointed out in his response to the motion, he had filed such a petition. That petition, Medina asserted, further tolled the limitations period. (Resp. to Mot. to Dismiss, D.E. 16.) Respondent's reply made no mention of the certiorari petition and stated simply that Respondent would "rest on the facts and arguments put forward" in his original motion. (Id.) On April 23, 2010, this court denied the motion to dismiss and ordered Gaetz to file an answer to the petition. (Id.)
In the instant motion for reconsideration, filed on April 26, 2010, Respondent acknowledges that he was mistaken in asserting that Medina had not filed a petition for a writ of certiorari with the United States Supreme Court. He urges, however, that Medina's petition should nevertheless be dismissed as untimely under § 2244(d)(1)(A). (Resp.'s Mot. for Reconsideration at 1-4.) As the Supreme Court stated in Lawrence v. Florida, a "petition for writ of certiorari following state post-conviction review does not toll the statute of limitations under § 2244(d)(2)." 549 U.S. 327, 332 (2007). Respondent further requests that the court to revise its statement in the April 23, 2010 that "Gaetz appears to acknowledge that the filing of a petition of a petition for writ of certiorari . . . would have again stopped the clock . . . ." (Id. at 4; Minute Order at 4, D.E. 13.) To the contrary, Respondent urges, Lawrence supports the position that the pendency of a petition for certiorari to the Supreme Court following state post-conviction proceedings does nothing to toll AEDPA's statute of limitations. (Resp't.'s Mot. for Reconsideration at 4.)
There is technically no "motion to reconsider" explicitly contemplated under the Federal Rules of Civil Procedure, but this court may consider such motions under Rule 59(e) (for motions to amend or alter judgment), or Rule 60(b) (for motions for relief from judgment). See Ho v. Taflove, No. 07 C 4305, 2010 WL 165869, *7 (N.D. Ill. Jan. 15, 2010). Respondent argues that he is entitled to reconsideration because the court misinterpreted his argument and committed legal error in denying the earlier motion. See Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (a motion for reconsideration based on an error of law is analyzed under ...