The opinion of the court was delivered by: Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
Petitioner, Ronald Smith, seeks a writ of habeas corpus against Menard Correctional Center Warden, Dave Rednour, pursuant to 28 U.S.C. § 2254. Presently before the Court are Petitioner's motion to stay the petition for writ of habeas corpus and Respondent's motion to dismiss. For the reasons stated below, the Petitioner's motion to stay the petition for writ of habeas corpus is denied and Respondent's motion to dismiss is granted.
Following a February 2001 jury trial in the Circuit Court of Cook County, Illinois, Petitioner was convicted of first degree murder and sentenced to a term of thirty-five years of imprisonment.
Petitioner appealed his conviction and sentence to the Illinois Appellate Court, First District; and on November 7, 2002, the state appellate court affirmed. Petitioner did not file a petition for leave to appeal ("PLA") in the Illinois Supreme Court.
On March 28, 2003, Petitioner filed, in the state trial court, a pro se petition for post-conviction relief pursuant to 725 ILCS 5/122-1 et seq. The post-conviction petition raised five claims: (1) appellate counsel was ineffective for not arguing on direct appeal that the state failed to prove him guilty of murder beyond a reasonable doubt; (2) the state failed to prove him guilty of murder beyond a reasonable doubt; (3) the state failed to prove that he was guilty under an accountability theory; (4) the state unlawfully amended the indictment; and (5) appellate counsel was ineffective for failing to argue on direct appeal that the state unlawfully amended the indictment.
On May 8, 2003, the state trial court dismissed Petitioner's post-conviction petition as frivolous and patently without merit. Petitioner contends that he did not receive notice of this dismissal until September 20, 2003, after he had written to the state court asking for a status sheet for the case. On September 29, 2003, Petitioner moved for leave to file a late notice of appeal. The appellate court denied the motion on October 8, 2003, finding that it lacked jurisdiction under Illinois Supreme Court Rule 606(c), which requires an appellant who has missed the thirty-day deadline for filing a notice of appeal to seek leave to file a late notice of appeal by either filing a motion in the appellate court within thirty days of the expiration of the deadline showing a reasonable excuse for the delay; or (2) filing a motion in the appellate court within six months of the expiration of the deadline showing that the appeal has merit and that the delay was not due to the appellant's culpable negligence. On November 2, 2003, Petitioner filed a late notice of appeal in the appellate court. On November 21, 2003, the appellate court denied the late of notice appeal. Petitioner claims that he did not receive the appellate court's denial of his late notice of appeal until some time after February 24, 2004.
On March 22, 2004, Petitioner filed a successive post-conviction petition in the state trial court raising six claims: (1) his first post-conviction petition should have been reinstated because he did not receive prompt notice of its May 8, 2003, dismissal; (2) appellate counsel was ineffective for failing to consult with Petitioner; (3) appellate counsel was ineffective for failing to argue on direct appeal that the State failed to prove him guilty beyond a reasonable doubt; (4) the state failed to prove him guilty beyond a reasonable doubt; (5) the state failed to prove him guilty under an accountability theory; and (6) Petitioner was actually innocent. In April 2004, Petitioner sought leave to amend his successive post-conviction petition.
On May 18, 2004, the state trial court denied the motion for leave to amend the successive post-conviction petition. The state trial court made the following factual finding regarding Petitioner's contention that he did not receive notice of the dismissal of his first post-conviction petition within ten days of the May 8, 2003 dismissal order:
I found out through a person of the court records that [defendant's] case was dismissed on May 8, 200 and notice was sent out to the Clerk's Office on May 9, 200. His amended pro se motion for post-conviction release [sic] was predicated upon the fact that he did not receive notice within ten days that it was supposed to be mailed to him. That is incorrect. The court records contradict that.
Petitioner appealed the denial of his successive post-conviction petition to the state appellate court. The state appellate court remanded with instructions to the trial court to docket the successive post-conviction petition for further consideration on the ground that the trial court only denied the motion for leave to amend but failed to rule on the successive post-conviction petition. Following remand, Petitioner's appointed counsel filed a supplemental post-conviction petition raising the claims that appellate counsel was ineffective for failing to argue on direct appeal that (1) the trial court erroneously refused to instruct the jury on unreasonable self-defense or defense of others and (2) the prosecutor committed misconduct during closing argument to the jury. On October 23, 2009, the state trial court dismissed the successive post-conviction petition because Petitioner failed to make a substantial showing of a denial of a constitutional right.
Petitioner appealed the dismissal of the successive post-conviction petition to the state appellate court. The appellate court affirmed the triall court, observing that, under Illinois law, a successive post-conviction petition may be advanced to an evidentiary hearing where the petitioner demonstrates actual innocence, and that the present Petitioner had failed to demonstrate actual innocence because the affidavit that he had submitted in support of his actual innocence claims was not newly discovered and did not contradict the evidence at trial.
On December 9, 2009, Petitioner filed a PLA, arguing that he should have been granted an evidentiary hearing on his successive post-conviction petition because he had successfully claimed actual innocence and that the state process was ineffective because his ineffective assistance of counsel claims were not advanced on appeal. On January 27, 2010, the Illinois Supreme Court denied the PLA.
While the proceedings above were taking place, Petitioner filed a second successive post-conviction petition in the state trial court in May 2008. The second successive post-conviction petition claimed that: (1) he was actually innocent and (2) he was denied effective assistance of counsel in regard to his successive post-conviction proceedings. In July 2008, the state trial court denied Petitioner leave to file his second successive post-conviction petition. Petitioner appealed the denial of leave to file the second successive post-conviction petition to the state appellate court. That appeal remains pending. Petitioner raises one ...