The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Thursday, 13 January, 2011 08:11:32 AM
Clerk, U.S. District Court, ILCD
Before the Court is Ray Charles Spivey's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 11), Respondent's Motion to Dismiss (Doc. 15), and Petitioner's Response (Doc. 18). For the following reasons, Respondent's Motion is GRANTED and the Petition is DISMISSED WITH PREJUDICE.
On October 20, 1994, following a jury trial, Petitioner was convicted of home invasion and attempted aggravated criminal sexual assault. (Doc. 16 Exh. A). He was sentenced to consecutive terms of forty-five and fifteen years of imprisonment, respectively. (Doc. 16 Exh. A at 1-2). On January 6, 1997, the Second Judicial District of Illinois affirmed Petitioner's convictions and sentences. (Doc. 16. Exh. A at 22). Petitioner filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court, which was denied on April 2, 1997. (Doc. 16 Exh. C).
On August 11, 1997, Petitioner filed a pro se petition for post-conviction relief pursuant to 725 ILCS 5/122-1, et seq. (Doc. 16 Exh. D). After being appointed counsel, Petitioner filed two amended petitions for post-conviction relief, on January 16, 2001, and March 9, 2001, respectively. (Doc. 16 Exhs. E & F). These petitions were denied as to all of Petitioner's claims as of July 8, 2003. (Doc. 16 Exh. H). Petitioner timely appealed, however the dismissal of his post-conviction petitions were affirmed by the Second Judicial District on December 28, 2004. (Doc. 16 Exh. N). Likewise, the Illinois Supreme Court denied Petitioner's PLA on March 30, 2005. (Doc. 16 Exh. L).
On June 9, 2005, Petitioner filed a second petition for post-conviction relief pursuant to 725 ILCS 5/122-1, et seq. (Doc. 16 Exh. M). On July 26, 2005, the trial court summarily dismissed Defendant's successive petition as frivolous and patently with merit. (Doc. 16 Exh. K). On appeal, the Second District determined that the trial court should have dismissed Petitioner's second post-conviction petition for failing to obtain leave to file it and thereby failing to comply with 725 ILCS 5/122-1(f). People v. Spivey, 879 N.E.2d 391, 394 (Ill. App. Ct. 2007). Further, the appellate court held that although the trial court accepted the petition and issued a ruling on it, it could still not be "deemed filed," because the trial court did not expressly grant permission to that effect. Id. at 395. Accordingly, the appellate court held that "defendant's successive post-conviction is not even considered as having been filed" and affirmed its dismissal on those grounds. Id.
On December 5, 2007, Petitioner filed a pro se motion for leave to file an amended post-conviction petition, along with the proposed petition. (Doc. 16 Exhs. S & T). The trial court denied this motion on January 10, 2008, because Petitioner failed to show cause and prejudice for his failure to raise the claims in his previous post-conviction petition, as required by 725 ILCS 5/122-1(f). (Doc. 16 Exh. U). The Second District affirmed this dismissal on September 25, 2009 (Doc. 16 Exh. V), and the Illinois Supreme Court denied Petitioner's PLA on January 27, 2010 (Doc. 16 Exh. W).
Petitioner filed his original Petition with this Court on February 24, 2010. (Doc. 1). He filed an Amended Petition on June 25, 2010, in which he added additional claims for relief. (Doc. 11). In an Order and Opinion entered on July 2, 2010, this Court analyzed Petitioner's Amended Petition, and found that it raised eleven distinct claims. (Doc. 12 at 3-4). Pursuant to Rule 4 of the Rules Governing § 2254 Petitions, the Court dismissed one of Petitioner's claims as plainly without merit, and ordered the Respondent to file an answer, motion, or other responsive pleading to the remainder of Petitioner's claims within 60 days. Respondent complied, and on July 29, 2010 it filed its instant Motion to Dismiss. (Doc. 16). Respondent seeks to have Petitioner's Petition dismissed as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (Doc. 16 at 1-2). On August 3, 2010, Petitioner filed his timely Response. (Doc. 19).
Section 2244(d)(1) of Chapter 28 of the United States Code imposes a one year period of limitations upon the filing of an application for writ of habeas corpus by a person in state custody. Absent an unconstitutional state impediment to filing, a newly recognized or retroactively applicable constitutional right, or a subsequently discovered factual predicate for the claims for relief, the applicable limitations period begins on the date which judgment becomes final, which is the date on which a petitioner's time to file a petition for writ of certiorari in the United States Supreme Court expires. 28 U.S.C. § 2244(d)(1)(A)-(D); Jimenez v. Quarterman, 555 U.S. 113 (2009). However, the period may be tolled during the time which a properly filed application for State post-conviction relief is pending. § 2244(d)(2).
Here, Respondent alleges that Petitioner's judgment became final on July 1, 1997, which was 90 days after the Illinois Supreme Court denied his PLA on direct appeal, i.e., when the time to file a petition for writ of certiorari in the United States Supreme Court expired. (Doc. 15 at 10). Petitioner responds that his judgment was not final as of that day, because he was still attempting to ensure that he had not procedurally defaulted his claims. However, Petitioner's attempts to ensure that his claims were not procedurally defaulted does not alter the date his judgment became final. First of all, the period of limitations did not begin to run until after Petitioner's conviction had undergone one complete round of direct review. And further, to the extent Petitioner wished to properly file a post-conviction ...