The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Michael Earl Williams ("Williams"), proceeding pro se, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 seeking to vacate his sentence of natural life in prison imposed by the Circuit Court of Cook County, Illinois, and reduce his sentence to forty years of imprisonment. Respondent Warden Donald Gaetz ("Gaetz") moves to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1)(A).*fn1 For the reasons set forth below, Gaetz's Motion to Dismiss is granted and Williams' petition is dismissed.
On July 13, 1992, Williams was convicted of first degree murder as a result of his involvement in the beating death of Kenneth Adams on February 7, 1989.*fn2 (Pet. 3; Resp't Ex.A, Cert. Stmt. 10; Resp't Ex. B, Rule 23 Order in People v. Williams and Riddle, Nos. 1-92-3861 & 1- 92-3862 (cons.)) On February 9, 1996, the conviction was affirmed on direct appeal by the Illinois Appellate Court. See People v. Williams, 698 N.E.2d 721 (Table) (Ill. App. Ct. 1996). Williams then filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, which was denied on December 4, 1996. (Pet. 4; Resp't Ex. C, denial of PLA in People v. Williams, No. 81989; People v. Williams, 675 N.E.2d 639 (Table) (Ill. Dec. 4, 1996).) Williams did not file a petition for a writ of certiorari in the United States Supreme Court following the denial of his PLA. Williams' criminal judgment and conviction thus became final on March 4, 1997, ninety days after judgment and the date on which his time for filing a petition for certiorari expired. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002).
More than three years later, on November 8, 2000, Williams mailed his first petition for post-conviction relief, arguing that the Illinois Habitual Criminal Act, 720 ILCS 5/33B-1 et seq. (repealed by P.A. 95-1052, § 93, eff. July 1, 2009) under which he had received his life sentence, was unconstitutional pursuant to the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The petition was filed on November 28, 2000 in the Circuit Court of Cook County, Illinois. (Pet. 6; Resp't Ex. A, Cert. Stmt. 12; Resp't Ex. D, Pet. Relief 1.) The Circuit Court dismissed the petition on December 13, 2000 as frivolous and patently without merit. (Resp't Ex. A, Cert. Stmt. 12.) The trial court denied Williams' motion for permission to file a late notice of appeal on February 9, 2001. (Id.) On July 22, 2004, Williams filed a second petition for post-conviction relief in the Circuit Court of Cook County. (Resp't Ex. A, Cert. Stmt. 13; Resp't Ex. E, Second Pet. Relief 2; Resp't Ex. F, Oct. 14, 2004 Order.) On October 14, 2004, the court denied Williams leave to file the successive petition, pursuant to 725 ILCS 5/122-1. (Resp't Ex. F, Oct. 14, 2004 Order.) On August 29, 2005, Williams' motion for permission to file a late notice of appeal was denied by the appellate court. (Resp't Ex. G, Aug. 29, 2005 Order.)
On April 11, 2007, Williams filed a mandamus complaint in the Circuit Court of Cook County arguing that his sentence was void because the trial court had improperly relied upon an incomplete pre-sentence investigation report and otherwise exceeded its sentencing authority. (Resp't Ex. H, Pet. Mandamus.) On June 7, 2007, the Circuit Court denied the petition. (Resp't Ex. A, Cert. Stmt. 14; Resp't Ex. I, June 7, 2007 Order.) On May 27, 2009, the appellate court affirmed. (Resp't Ex. J, May 27, 2009 Order.) On September 30, 2009, the Illinois Supreme Court denied Williams' second PLA. (Resp't Ex. K, September 30, 2009 Order.)
On September 17, 2008, Williams filed a second mandamus complaint in the Circuit Court of Cook County. (Resp't Ex. L, Second Pet. Mandamus 1.) The trial court dismissed the complaint on July 31, 2009. (Resp't Ex. M, July 31, 2009 Order.) Williams did not file anything in that court following the denial of his second mandamus complaint. On October 19, 2009, Williams filed this federal petition for a writ of habeas corpus.*fn3
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The one-year period runs from the latest of one of four dates: (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 a state-created impediment to filing that was either unconstitutional or in violation of the laws of the United States was removed; (C) the date on which a new constitutional right was recognized by the Supreme Court, if that new right was 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." See id.
Under 28 U.S.C. § 2244(d)(1)(A), Williams would have been required to file his petition for a writ of habeas corpus on or before March 4, 1998-one year from the date on which his conviction became final. However, Williams did not file his first post-conviction petition for relief until November 28, 2000. Although "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 shall not be counted" toward the one-year statute of limitations, 28 U.S.C. § 2244(d)(2), Williams is not entitled to any tolling of the statute of limitations period because he did not seek any state post-conviction relief or review until well after the federal statutory period had run.
Nevertheless, Williams argues that this petition is timely filed following the conclusion of state-court proceedings related to the mandamus petitions that he brought before the Circuit Court of Cook County in 2007 and 2008. Although Williams properly appealed the denial of his mandamus petition during the 2007 proceedings and then filed a second mandamus petition in the Circuit Court of Cook County on September 17, 2008, neither of these proceedings toll the one year limitations period applicable to an application for a writ of habeas corpus following the final judgment of a state court because they were initiated here long after the expiration of that one-year period. See Escamilla v. Jungwirth, 426 F.3d 868, 870 (7th Cir. 2005). "The state court's willingness to entertain a belated collateral attack on the merits does not affect the timeliness of the federal proceeding," that is, the clock does not restart simply because Williams initiated state court post-conviction proceedings many years after the expiration of his one-year statutory period. Id. Because no state collateral review was pending during the critical first year after Williams' conviction, his later-filed state proceedings do not toll the statute of limitations period for purposes of § 2244(d)(1)(A).
Section 2244(d)(1)(B) is inapplicable here because there is no reference to any state-created impediment that kept Williams from filing a timely habeas corpus petition. Because § 2244(d)(1)(B) requires that the asserted impediment to timely filing have been imposed by the state and not anyone else, and there are no facts in the record that would allow an ...