The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge
Judge Rebecca R. Pallmeyer,
MEMORANDUM OPINION AND ORDER
Following a trial in the Circuit Court of Cook County, Erskine DeLoach ("Petitioner") was convicted of home invasion, armed robbery, aggravated criminal sexual assault, and aggravated kidnaping. DeLoach was sentenced on May 15, 1998, to four consecutive terms of 30 years in prison. DeLoach has exhausted his state remedies and petitions this court for a writ of habeas corpus, arguing that the evidence against him was insufficient to support his sexual assault conviction, that his appellate counsel was ineffective, and that his sentences should have been imposed concurrently rather than consecutively. For the reasons state herein, DeLoach's petition is denied.
At approximately 4 a.m. on February 22, 1997, Louise Watson, 74, awoke to find four men with handguns in her bedroom, where she had been sleeping with her twin six-year-old granddaughters. One of the men had his handgun pressed to the back of her son Kevin's head. The four men had surrounded Kevin as he sat in his van outside his home waiting for the engine to warm up, ordered him out of the van, and forced him at gunpoint into his mother's bedroom. The men, whom Louise Watson identified in court (Petitioner and co-defendants Sammy Lowery, Derrick Harris, and Dante Handy), were demanding money and threatening to kill Kevin if they did not receive any. She gave them $12, all that she had with her.
Lowery went into the bedroom of Louise Watson's 15-year-old granddaughter, Monica, and, after a struggle with Watson, pulled Monica from her bed. The men took Monica from the home and left in Kevin's van. While in the van, the men raped Monica multiple times orally, anally and vaginally. Eventually, the men left the van, and DeLoach told Monica that if she told anyone what had happened they would kill her family. He then gave Monica directions to her house and she drove home in the van. She arrived home and told the police--who had been called by her father immediately after she was abducted--what had happened. She was immediately taken to the hospital.
Following his conviction, DeLoach first appealed to the Illinois Appellate Court for the First District. He argued that the trial court erred in denying his motion to suppress, that there was insufficient evidence to prove him guilty beyond a reasonable doubt, and that the trial court abused its discretion by imposing the maximum possible sentence. Harris, 314 Ill. App. 3d at 417, 419, 420, 731 N.E.2d at 934-36. On June 13, 2000, the appellate court affirmed the denial of the motion to suppress, and upheld the trial court's finding that DeLoach's confession was truthful and not coerced. Id. at 418, 731 N.E.2d at 934-35. ("Here the trial court chose to believe the prosecution witnesses. We cannot say that such a finding was against the manifest weight of the evidence."). The court next rejected DeLoach's contention that a lack of inculpatory DNA evidence meant there was insufficient evidence to prove him guilty beyond a reasonable doubt. Id. at 419, 731 N.E.2d 935-36. "While DeLoach is correct that the DNA evidence did not inculpate him, neither did it exculpate him. . . . [T]he victims identified DeLoach in lineups and in open court. . . [T]here was a confession. Based on this evidence, we cannot say that no rational trier of fact could have found DeLoach guilty beyond a reasonable doubt." Id. at 419, 731 N.E.2d at 936. Noting that, "[t]he evidence of the repeated acts of aggravated criminal sexual assault committed by the defendants against the 15-year-old minor victim is horrific," the court "acknowlege[d] the sentences are harsh, [but] we cannot say that the sentences constitute an abuse of discretion." Id. at 420, 731 N.E.2d at 936-37. DeLoach filed a petition for rehearing on July 4, 2000, and that petition was denied on July 19, 2000.
On August 18, 2000, DeLoach petitioned for leave to appeal to the Supreme Court of Illinois from the denial of rehearing. (Pet. for Leave to Appeal, Resp's Ex. D.) DeLoach and co-defendants Harris and Lowery invoked the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), arguing that under Apprendi, "they should receive a single maximum sentence of thirty (30) years because each charged offense is a lessor [sic] included part of the Home Invasion statute." (Pet. for Leave to Appeal at 2.) The Supreme Court denied DeLoach's petition for leave to appeal on October 4, 2000. (Denial of Pet. for Leave to Appeal, Resp's Ex. E.)
On December 15, 2000, DeLoach filed his petition for post-conviction relief with the Circuit Court of Cook County. DeLoach argued that the imposition of the sentences consecutively rather than concurrently violated the Supreme Court's Apprendi decision and Illinois sentencing law. (Pet. for Post-Conviction Relief at 2, 3, Resp's Ex. F.) The circuit court dismissed the post-conviction petition on July 14, 2005. ( Resp's Ex. G at 2.)
DeLoach appealed the dismissal of his post-conviction petition on the Apprendi issue to the First District Appellate Court on July 14, 2005, and on March 30, 2007, the appellate court affirmed the circuit court's dismissal of the petition. People v. DeLoach, No. 1-05-2484, at *2 (1st Dist. March 30, 2007). The court also granted the state appellate defender's motion to withdraw as appellate counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), agreeing with the appellate defender's argument that an appeal "would be frivolous and without merit." DeLoach, No. 1-05-2484, at *2. On September 26, 2007, the Supreme Court denied DeLoach's leave to appeal. (Resp's Ex. K.) On December 4, 2008, the circuit court denied DeLoach's motion to file a successive post-conviction petition. (Resp's Ex. L.)
On July 31, 2009, DeLoach filed this petition for habeas corpus. He alleges ineffective assistance of trial or appellate counsel; that there was insufficient evidence to convict him of sexual assault; and that the trial court should have imposed consecutive rather than concurrent sentences. (Pet. for Writ of Habeas Corpus at 5-6.) Respondent moved to dismiss, arguing that DeLoach's motion is untimely under 28 U.S.C. § 2244(d)(1). Respondent contends that the one-year limitations period of that statute expired one year after the Illinois Supreme Court denied his request to appeal the denial of his original post-conviction petition--that is, September 26, 2008. (Resp's Mot. to Dismiss at 8-9.) Respondent further argues that DeLoach is not entitled to equitable tolling. (Id. at 11-12.)
DeLoach asserts that the state created the impediment that prevented him from filing on time by failing to provide access to the law library and not providing the forms needed to file his habeas petition. (Traverse to Resp's Mot. to Dismiss at 1.) According to Respondent, records from the prison law library show that DeLoach was in fact afforded adequate access to the prison law library. (Reply in Supp. of Mot. to Dismiss at 2.) Respondent ...