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United States ex rel Centeno v. Hardy

July 20, 2010

UNITED STATES EX REL. CENTENO
v.
HARDY



Name of Assigned Judge Blanche M. Manning Sitting Judge if Other or Magistrate Judge than Assigned Judge

DOCKET ENTRY TEXT:

The respondent's motion to dismiss [#11] is granted, Mr. Centeno's § 2254 petition [#1] is denied, and the court declines to issue a certificate of appealability. The clerk is directed to issue a Rule 58 judgment and terminate this case from the docket.

#[ For further details see text below.]

STATEMENT

Melvin Centeno's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and the respondent's motion to dismiss based on the statute of limitations are before the court.

Background

Mr. Centeno was charged with murder and armed robbery, and after a jury trial, was convicted on both counts and sentenced to a term of life imprisonment for murder and a concurrent term of thirty years of imprisonment for armed robbery. The Illinois Supreme Court affirmed his convictions and sentence, and the Illinois Supreme Court denied Mr. Centeno's petition for leave to appeal (PLA) on January 24, 2007. Mr. Centeno did not file a petition for a writ of certiorari with the United States Supreme Court.

The earliest possible date for Mr. Centeno to have filed his petition for state post-conviction relief is December 21, 2007 (the date provided by Mr. Centeno in his federal habeas petition), although the state court docket indicates he filed his state post-conviction petition on January 10, 2008. The trial court denied relief, and the appellate court affirmed on September 25, 2009. Mr. Centeno asserts that he filed a PLA in "December 2009" but the respondent indicates that the Illinois Supreme Court records do not reflect that Mr. Centeno ever filed a PLA in his state post-conviction proceedings.

Mr. Centeno mailed his § 2254 petition to this court on March 24, 2010.

Discussion

A one-year statute of limitations applies to petitions for a writ of habeas corpus. 28 U.S.C. § 2244(d). The statute of limitations begins to run when the latest of several events occur, including the one applicable here: the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). As noted above, the Illinois Supreme Court denied Mr. Centeno's PLA in his direct appeal on January 24, 2007, and Mr. Centeno did not file a petition for a writ of certiorari with the United States Supreme Court. For statute of limitation purposes, if a habeas petitioner does not seek certiorari, his direct appeal concludes ninety days after the state court of last resort denies relief. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2000). Thus, the one-year statute of limitations would normally have begun to run ninety days after January 24, 2007, which is April 24, 2007.

However, under § 2244(d)(2), a properly filed application for state post-conviction relief tolls the statute of limitations ( i.e., temporarily stops the statute of limitations clock). See 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). The best case scenario date for Mr. Centeno to have filed his petition for state post-conviction relief is December 21, 2007. This is 240 days from April 24, 2007, which leaves Mr. Centeno with 125 days of his limitations period left.

The Illinois Appellate Court issued its decision on September 25, 2009. Mr. Centeno does not provide any evidence contradicting the state court docket, which indicates he did not file a PLA in his state collateral proceedings. The Seventh Circuit has not yet decided whether a state habeas petitioner is entitled to credit for the time in which he could have, but did not, file a PLA in state post-conviction proceedings. See Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008) (declining to address whether the time in which an appeal can be filed with a state higher court tolls the statute of limitations if no such appeal is filed). The court will give Mr. Centeno the benefit of the doubt and assume that his state post-conviction proceedings terminated upon the expiration of the 35-day period in which he could have filed a PLA in the Illinois Supreme Court after the appellate court affirmed the dismissal of his post-conviction petition. See Ill. Sup.Ct. R. 315(b).

Forty-five days after September 25, 2009, is November 9, 2009. As noted above, Mr. Centeno had 125 days of the limitation period left after he finished his state direct proceedings. One-hundred-twenty days after November 9, 2009, is March 14, 2010. Mr. Centeno mailed his ยง 2254 petition on March 24, 2010. This means that even if the court gives Mr. Centeno every benefit of ...


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