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Jones v. Birkey

October 26, 2010

HENRY L. JONES, PETITIONER,
v.
RICHARD BIRKEY, WARDEN, LISA MADIGAN, ATTORNEY GENERAL, RESPONDENTS.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on Petitioner, Henry L. Jones's ("Jones"), Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the § 2254 Petition [#1] is DISMISSED, and the Motion for Leave to Proceed In Forma Pauperis [#2] is DENIED.

BACKGROUND AND PROCEDURAL HISTORY

Jones pled not guilty to Murder 1 in the Circuit Court of Peoria County in Case No. 80-CF-1390. Jones was found guilty in a bench trial, and on December 19, 1980, he was sentenced to a term of imprisonment of 80 years. Jones appealed his conviction to the Appellate Court of Illinois, Third Judicial District claiming (1) ineffective assistance of counsel; (2) racial discrimination; and (3) hearsay. On May 28, 1982, his conviction was affirmed. Jones then appealed this decision to the Illinois Supreme Court, which affirmed the ruling of the appellate court in 1984. Jones also filed a post-conviction petition with the Tenth Judicial Circuit Court alleging the above three grounds as well as challenging his sentence, which Jones contends constituted an excessive sentence rising to the level of cruel and unusual punishment. His conviction and sentence were affirmed on May 2, 1986.

On August 17, 2010, Jones filed this Petition for Writ of Habeas Corpus with this Court. Jones now brings the present action seeking federal review of his state court sentence. In his Petition, he argues that (1) he received ineffective assistance of counsel; (2) he was found guilty by improperly admitted hearsay testimony; and (3) his 80 year sentence constituted cruel and unusual punishment under the Eighth Amendment. This Order follows.

DISCUSSION

There are statutory time limits which govern whether a district court can entertain a petition for writ of habeas corpus. The present case is covered by 28 U.S.C. § 2244, which states in relevant part:

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. The limitation period shall run from the latest of -

(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 the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. ยง 2244(d)(1). The time during which a properly filed application for post-conviction or other collateral review is pending in the state courts is ...


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