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Armando Mendez v. Marcus Hardy

January 10, 2011

ARMANDO MENDEZ, PETITIONER,
v.
MARCUS HARDY, WARDEN RESPONDENT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Respondent's motion to dismiss Petitioner Armando Mendez's (Mendez) petition for writ of habeas corpus (Petition). For the reasons stated below, we grant the motion to dismiss.

BACKGROUND

On March 30, 2004, following a jury trial in the Circuit Court of Cook County Illinois (Trial Court), Mendez was convicted of armed robbery and first degree murder and sentenced to consecutive sentences of fifteen years for the robbery conviction and sixty years for the murder conviction. On May 19, 2006, the Illinois Appellate Court affirmed Mendez's conviction and sentence. Mendez filed a petition for leave to appeal to the Illinois Supreme Court, which the Illinois Supreme Court denied on September 27, 2006. Mendez did not file a writ of certiorari in the Supreme Court of the United States, requesting direct review of the proceedings.

On March 20, 2007, Mendez filed a post-conviction petition in the Circuit Court of Cook County, Illinois. In his post-conviction petition, Mendez argued (1) that he received ineffective assistance of appellate counsel, (2) that the Trial Court improperly denied his motion for a directed verdict based on the prosecution's failure to prove its case beyond a reasonable doubt, (3) that the Trial Court improperly denied his motion for a mistrial based on improper statements made by the prosecution during closing arguments, (4) that the Trial Court improperly admitted highly prejudicial evidence in violation of his due process rights, and (5) that he received ineffective assistance of trial counsel based on trial counsel's failure to submit proposed jury instructions relating to "knowledge" and "intent" and failure to object to the use of an accountability jury instruction. The Trial Court denied Mendez's post-conviction petition on April 20, 2007, and on February 19, 2009, the Illinois Appellate Court affirmed the judgment of the Trial Court. Mendez filed a petition for leave to appeal with the Illinois Supreme Court, which the Illinois Supreme Court denied on May 28, 2009. Mendez did not file a writ of certiorari in the Supreme Court relating to the post-conviction review of the proceedings.

On May 11, 2010, Mendez filed the instant Petition. Mendez alleges in his Petition: (1) that he received ineffective assistance of trial counsel and appellate counsel, (2) that the evidence presented by the state was not sufficient to prove him guilty beyond a reasonable doubt, (3) that the prosecution's closing arguments were improper, (4) that the Trial Court improperly admitted highly prejudicial photos of the victim into evidence, and (5) that the Trial Court improperly instructed the jury with respect to "intent" and "knowledge."

LEGAL STANDARD

An individual in custody pursuant to state court judgment may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to clearly established federal law "'if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'" Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable application of clearly established federal law "'if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.'" Emerson, 575 F.3d at 684 (quoting Bell, 535 U.S. at 694).

DISCUSSION

Respondent has filed a motion to dismiss the instant Petition, arguing that the statute of limitations for filing a habeas petition has expired and that the equitable tolling doctrines do not apply to the instant Petition.

I. Statute of Limitations

Respondent contends that the instant Petition is untimely. Under 28 ...


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