The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Magistrate Judge Philip M. Frazier's Report and Recommendations ("R & R") (Doc. 69) of May 25, 2010. In said R & R, it is recommended, inter alia, that the Court deny Petitioner Kenneth Bownes' (hereinafter "Bownes") Petition for Writ of Habeas Corpus (Doc. 1), which he brings pursuant to 28 U.S.C. § 2254.
After reviewing a report and recommendation, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
In his Objection (Doc. 70) and Supplement (Doc. 71), Bownes takes issue with the underlying R & R on three grounds. Each will be addressed in kind. Meanwhile, the Court has reviewed the unobjected portions of the R & R for clear error and does not find them to be clearly erroneous.
I. Waiver and Judicial Estoppel
First, Bownes contends that Magistrate Judge Frazier did not properly consider whether Defendant Donald Gaetz (hereinafter "Gaetz") waived his timeliness argument. Bownes' position compares Gaetz's stance during the second post-conviction proceeding in state court and the instant habeas proceeding. Throughout the second post-conviction proceeding, Gaetz did not acknowledge that Bownes filed a petition for leave to appeal (hereinafter "PLA") with the Illinois Supreme Court during his first post-conviction proceeding; as a result, Gaetz maintained that the second post-conviction petition was untimely by more than three months. In this litigation, however, Gaetz admits his "incorrect belief" concerning the PLA and now maintains that the second post-conviction petition was one day late. (Doc. 13, p. 10). Bownes argues that these inconsistent stances are tantamount to waiver or that they should be subject to judicial estoppel. Recognizing that Gaetz's current argument "is based on the federal limitations period set forth in 28 U.S.C. § 2244(d)(2)" and that it is "separate and distinct from the untimeliness argument that was presented to state court," Magistrate Judge Frazier makes no recommendation of waiver. (Doc. 69, p. 4).
The Court agrees with Magistrate Judge Frazier because, put simply, the doctrines of waiver and judicial estoppel do not support Bownes' theory of the case. Gaetz's "incorrect belief" hardly smacks of the intentional relinquishment that defines the doctrine of waiver. United States v. Rodriguez-Gomez, 608 F.3d 969, 972 (7th Cir. 2010) ("Waiver is the intentional relinquishment of a known right...."). Bownes cites People v. Pinkonsly, 802 N.E.2d 236 (Ill. 2003) in his Supplement (Doc. 66) to serve his argument of waiver. In Pinkonsly, the Illinois Supreme Court found that, in failing to raise timeliness as a defense until it answered the defendant's appeal, the state waived any timeliness argument. Id. at 241-242. Unlike the state in Pinkonsly, however, Gaetz raised untimeliness as a defense with the trial court in a motion to dismiss during the second post-conviction proceeding. (Doc. 13-11, p. 2) ("That the Petition is not timely filed as required under Chapter 725, Act 5, Section 122-1(c) of the Illinois Compiled Statutes in that defendant's conviction was affirmed on October 20, 1999 and this Petition was filed on August 3, 2000.").
As Bownes discusses in his objection to the R & R, his first argument is more akin to one seeking judicial estoppel. Judicial estoppel is "an equitable concept providing that a party who prevails on one ground in a lawsuit may not... in another lawsuit repudiate that ground." Brown v. Watters, 599 F.3d 602, 615 (7th Cir. 2010) (citation omitted). Courts should give great pause before invoking the doctrine of judicial estoppel, as the "litigant's subsequent position must be clearly inconsistent with his earlier position." Id. (emphasis added); Butler v. Vill. of Round Lake Police Dep't, 585 F.3d 1020, 1022 (7th Cir. 2009) (Judicial estoppel's "purpose is to prevent a litigant from prevailing twice on opposite theories.") (emphasis added) (citation omitted). Here, it can be hardly said that Gaetz has maintained two theories that are wholly incompatible; in fact, Bownes concedes as much. (Doc. 70, p. 4) ("[I]t cannot be said that Respondent's position in federal court is the polar opposite of the one it took in state court."). Gaetz maintained throughout the second post-conviction proceeding and continues to maintain in this proceeding that Bownes' second post-conviction petition was untimely. The Court will not be so brash as to deem his unintentional misrepresentation regarding the PLA as an appropriate basis for invoking judicial estoppel. Further, invocation of judicial estoppel would not call upon the doctrine's equitable underpinnings, which would have this Court look to any justifiable reliance or "lulling" of Bownes caused by Gaetz's prior stance. No one knew better than Bownes that he had filed a PLA. At the time Gaetz filed his motion to dismiss the second post-conviction petition, Bownes had ample notice to contest his opponent's version of the procedural posture and argument arising therefrom.
Bownes next argues that this Court is not bound by the Illinois appellate court's finding of untimeliness and, to the extent it is, any presumption of correctness is rebutted by clear and convincing evidence.
Bownes brings the instant petition pursuant to 28 U.S.C. § 2254, which states, in relevant part, as follows:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1) (2006). As long as the state court acted reasonably, this Court is not permitted to substitute its own independent judgment as to the outcome. Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000). For the state court to have acted unreasonably, its "application of federal law must be 'well outside the boundaries of permissible differences of opinion.'" Collins v. Gaetz, 612 F.3d 574, 585 (7th Cir. 2010) (citation omitted). Merely erroneous or incorrect application of federal law is not enough to sustain a finding of unreasonableness. Id. (relying upon Williams v. Taylor, 529 U.S. 362, 411 (2000)); U.S. ex rel. Aleman v. Sternes, 205 F. Supp. 2d 906, 911 (N.D. Ill. 2002) ("For habeas relief, the state court's decision must be both incorrect and unreasonable."). Put another way, federal courts must ask whether a state court's decision "is at least minimally consistent with the facts and circumstances of the case" or "if ...