IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
February 3, 2011
JAMES C. NELSON, PETITIONER,
U.S. MARSHALS SERVICE, RESPONDENTS.
The opinion of the court was delivered by: Herndon, Chief Judge:
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner, currently incarcerated in the Federal Correctional Institute in Greenville, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of his confinement, which at the time of filing was the Alton Law Enforcement Center in Alton, Illinois.
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner."
According to the instant habeas petition, Petitioner pled guilty on September 9, 2004, to obstructing justice in the Twentieth Judicial Circuit for the State of Illinois (St. Clair County) and was sentenced to18 months probation. Petitioner did not seek to appeal his sentence or conviction because he became time barred pursuant to Illinois Supreme Court Rule 303.*fn1
Petitioner filed the instant action November 5, 2010, claiming that the Circuit Court in St. Clair County lacked jurisdiction to sentence him because an indictment was never filed nor was the complaint signed by the Judge. 28 U.S.C. § 2244(d)(1) states that a Petitioner has a one year period in which to file a writ of habeas corpus. Section 2244(d)(1)(A) states that this period shall begin only after Petitioner's State post-conviction proceedings have been resolved. In this instance, Petitioner's statute of limitations began to run on October 10, 2004, after his appeal became time barred. Thus, Petitioner had until October 10, 2005, to file his writ of habeas corpus. As it is, Petitioner waited until November 5, 2010, to file his writ, well outside of the applicable statute of limitation.
In summary, because the petition was filed outside the applicable limitation period, Petitioner's action does not survive review under Rule 4. Accordingly, this action is DISMISSED with prejudice.
IT IS SO ORDERED.
David R. Herndon Signed this 3rd day of February, 2011. 2011.02.03
Chief Judge United States District Court