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Coleman v. Gaetz

September 27, 2010

MARK COLEMAN, PLAINTIFF,
v.
DONALD GAETZ, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner Mark Coleman ("Coleman") proceeding pro se, filed this petition for writ of habeas corpus under 28 U.S.C. § 2244 challenging his 1998 conviction for two counts of first degree murder. Respondent Warden Donald Gaetz ("Gaetz") moves to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1)(A). For the reasons set forth below, Gaetz's Motion to Dismiss is granted and Coleman's petition is dismissed with prejudice. Coleman's certificate of appealability is denied.

PROCEDURAL BACKGROUND

The Court adopts the underlying facts set forth by the Illinois Appellate Court in People v. Coleman, No. 1-06-3720 (Ill. App. Ct. July 18, 2008) (unpublished) because Coleman does not present clear and convincing evidence challenging those facts. See 28 U.S.C. § 2254(e)(1); see also Virsnieks v. Smith, 521 F.3d 707, 714 (7th Cir. 2008).

On February 27, 1998, a jury convicted Coleman of two counts of first degree murder in the Circuit Court of Cook County and the Court sentenced him to a term of life in prison. See Resp't Ex. M; Coleman, No. 1-06-3720 at 1. On December 27, 1999, the Illinois Appellate Court affirmed the conviction. See Coleman, No. 1-06-3720 at 1. Coleman then filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, which was denied on April 5, 2000. See id. at 2. Coleman did not file a petition for writ of certiorari in the United States Supreme Court following denial of his PLA. Allowing him the ninety days within which he could have filed such a petition pursuant to 28 U.S.C. § 2244(d)(1)(A), Coleman's criminal judgment became final on July 5, 2000, 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).

On September 15, 2000, seventy-one days after his conviction became final, Coleman filed a post-conviction petition pursuant to 725 ILCS 5/122-1 in the Circuit Court of Cook County. See Coleman, No. 1-06-3720 at 2. The Circuit Court dismissed the petition as frivolous and patently without merit on November 29, 2000. See id. The appellate court affirmed the dismissal on January 10, 2003. See id. Coleman then filed a pro se post-conviction PLA on February 11, 2003. See id. Coleman's counsel filed a PLA on Coleman's behalf seeking review of the same post-conviction appeal on March 6, 2003. See id. The pro se PLA was denied by the Illinois Supreme Court on April 2, 2003 and the attorney-filed PLA was denied by the Illinois Supreme Court on June 4, 2003. See People v. Coleman, 788 N.E.2d 730 (Ill. 2003); People v. Coleman, 792 N.E.2d 309 (Ill. 2003).

On February 14, 2001, while his first post-conviction appeal was pending, Coleman filed a second post-conviction petition in the Circuit Court of Cook County alleging that his sentence violated the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). See Coleman, No. 106-3720 at 2. The trial court denied the petition and Coleman appealed.

See id. On appeal, Coleman's appointed counsel moved to withdraw as appellate counsel. See id. The appellate court allowed the motion and affirmed the judgment of the circuit court on June 28, 2002. See id. Coleman did not file a PLA seeking Illinois Supreme Court review of this appeal.

Coleman filed a pro se petition for relief from judgment pursuant to 735 ILCS 5/2-1401 with the Circuit Court of Cook County on November 21, 2003, alleging his trial counsel was ineffective on the grounds that his counsel failed to subpoena two witnesses. See id at 2-3. The trial court dismissed the petition and the appellate court affirmed that judgment. See id. at 3. Coleman filed a PLA with the Illinois Supreme Court, which was denied on September 28, 2008. People v. Coleman, No. 101462 (Ill. Sept. 24, 2008).

On October 3, 2006, Coleman filed a fourth post-conviction petition which the trial court denied leave to file, assessing Coleman a fine for filing a frivolous pleading. See Coleman No. 1-06-3720 at 3. The Illinois Appellate Court affirmed the order in July 2008. Id at 8. Coleman filed a PLA with the Illinois Supreme Court which was denied on January 28, 2009. People v. Coleman, No. 106932 (Ill. Jan. 28, 2009).

Coleman placed his petition for writ of habeas corpus in the Menard Correctional Center mailbox on December 23, 2009, which is considered the date of filing under Rule 3(d) of the Rules Governing § 2254 Cases in the United States District Court. See Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999).

DISCUSSION

Gaetz moves to dismiss Coleman's writ as time-barred. 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. ยง 2244(d)(1). The time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent ...


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