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United States ex rel Glenn v. Hardy

November 15, 2010

UNITED STATES OF AMERICA EX REL. HERSCHEL GLENN, PETITIONER,
v.
MARCUS HARDY, WARDEN STATEVILLE CORRECTIONAL CENTER, ILLINOIS DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Following a jury trial in June 1983, Petitioner Herschel Glenn ("Petitioner" or "Glenn") was convicted of first degree murder and sentenced to 70 years in prison. On July 19, 2009, Glenn filed the instant habeas petition pursuant to 28 U.S.C. § 2254. Respondent Marcus Hardy, Warden of the Stateville Correctional Center, has filed an answer to Glenn's petition in which he asserts that the motion is untimely under 28 U.S.C. § 2244(d)(1). Because the court agrees, as explained below, that Glenn's habeas petition is time-barred, the court need not reach Hardy's alternative arguments that the petition lacks merit.

BACKGROUND

On June 16, 1983, following a jury trial, Petitioner Herschel Glenn was convicted of first degree murder.*fn1 The trial court sentenced Glenn to 70 years in prison, an extended term deemed appropriate based upon the court's finding that the offense Glenn committed "was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." (Judgment Order, Ex. A to Respondent's Answer to Pet. for Writ of Habeas Corpus (hereinafter "Answer").) On October 21, 1985, the Illinois Appellate Court affirmed Glenn's conviction. On February 5, 1986, the Illinois Supreme Court denied his petition for leave to appeal ("PLA"). (Ex. D to Answer.)

More than fourteen years later, on November 15, 2000, Glenn filed a petition for post-conviction relief. That petition was denied on February 13, 2001. (Ex. F to Answer.) Petitioner's motion to reconsider was denied a year later, on January 31, 2002. (Ex. H to Answer.) Petitioner filed a notice of appeal, but withdrew it in order to proceed with a state habeas corpus petition on July 18, 2002. (Ex. I to Answer.) That petition, too, was unsuccessful; it was dismissed on October 11, 2002 (Ex. J to Answer), and Glenn's motion to reconsider was denied on August 12, 2005. On December 3, 2007, the Illinois Appellate Court affirmed that denial. (Ex. N to Answer.) Glenn again sought leave to appeal to the Illinois Supreme Court, but his petition was denied on May 29, 2008. (Ex. P to Answer.) On October 14, 2008, the United States Supreme Court denied Glenn's petition for a writ of certiorari. (Ex. Q to Answer.)

On July 19, 2009, Glenn filed the instant petition for habeas relief pursuant to 28 U.S.C. § 2254, arguing that his sentence is void under the Sixth and Fourteenth Amendments because it was "imposed without each fact necessary to prove the extended-term sentence being subject to proof beyond a reasonable doubt...." (Petition for Writ of Habeas Corpus (hereinafter, "Petition"), at 5-6.) On January 26, 2010, this court ordered Petitioner to show cause why his petition should not be dismissed as untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). (Minute Order, D.E. 3.) In response, Petitioner filed a memorandum arguing that his petition is timely under § 2244(d)(1)(C), which recognizes an exception to the general one-year statute of limitations rule where a habeas claim invokes a new constitutional rule. Respondent Hardy notes, however, that Petitioner's claim relies on a constitutional rule that is not retroactively applicable to him. The court agrees rwith Respondent that Glenn's petition is time-barred.

DISCUSSION

I. Statute of Limitations

AEDPA provides that "[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." 28 U.S.C. § 2244(d)(1). The provision further states:

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 has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

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


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