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United States ex rel Andujar v. Pierce

November 8, 2010

UNITED STATES EX REL. BENJAMIN ANDUJAR, PETITIONER,
v.
GUY D. PIERCE, WARDEN, PONTIAC CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: George W. Lindberg Senior United States District Judge

Judge George W. Lindberg

MEMORANDUM OPINION AND ORDER

Before the Court is respondent's motion to dismiss petitioner Benjamin Andujar's petition for writ of habeas corpus. For the reasons stated below, the motion to dismiss is granted.

I. Procedural History

In 1992, petitioner was convicted in state court of aggravated criminal sexual assault, home invasion, armed robbery, and felony escape, and was sentenced to concurrent prison terms totaling 60 years. People v. Andujar, No. 1-92-1936, slip op. at 1 (Ill. App. Ct. Dec. 9, 1994). On December 9, 1994, on direct appeal, the Illinois Appellate Court affirmed the conviction. Id. at 17. Petitioner did not file a petition for leave to appeal in the Illinois Supreme Court.

Petitioner filed a pro se post-conviction petition in the Circuit Court of Cook County on November 15, 1995.*fn1 The trial court denied this petition on December 8, 1995. Petitioner filed a petition for a writ of mandamus on April 5, 1996, and filed a petition for leave to amend or supplement his original post-conviction petition on August 6, 1996. The trial court denied both of these petitions. The Illinois Appellate Court consolidated these cases on appeal, and on December 19, 1997 affirmed the trial court's judgment on the merits.*fn2 People v. Andujar, Nos. 1-96-3821 & 1-96-4436, slip op. at 2 (Ill. App. Ct. Dec. 19, 1997). Petitioner did not file a petition for leave to appeal in the Illinois Supreme Court.

Nearly ten years later, on August 28, 2007, petitioner filed a pro se motion for leave to file a successive post-conviction petition in the Circuit Court of Cook County. The trial court denied the motion. The Illinois Appellate Court affirmed the trial court's order on July 27, 2009. People v. Andujar, No. 1-07-3099, slip op. at 2 (Ill. App. Ct. July 27, 2009). Petitioner filed a petition for leave to appeal in the Illinois Supreme Court, which that court denied on November 25, 2009. People v. Andujar, 920 N.E.2d 1074 (Ill. 2009).

Meanwhile, on August 27, 2008, petitioner had filed a petition for relief from judgment in the Circuit Court of Cook County. The trial court denied this petition. The Illinois Appellate Court dismissed petitioner's appeal, on petitioner's motion, on March 4, 2009. People v. Andujar, No. 90-0103 (Ill. App. Ct. Mar. 4, 2009).

Petitioner filed his petition for writ of habeas corpus in this court on June 16, 2010. Respondent argues that the habeas petition is untimely under the statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act (AEDPA), because petitioner failed to file it within one year after the Illinois Appellate Court affirmed the denial of petitioner's post-conviction petition on December 19, 1997.

II. Legal Standard

The AEDPA prescribes a one-year limitations period for filing an application for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). This limitations period runs 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 has been newly recognized by the Supreme Court and made ...


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