The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Before the court is petitioner Tywon Knight's motion to stay and abate these proceedings while he exhausts his state post-conviction remedies and respondent Yolande Johnson's motion to dismiss the case.*fn1
In 1998, petitioner Tywon Knight was convicted by a jury in Cook County, Illinois of first degree murder, aggravated vehicular hijacking, and aggravated kidnapping. The judge sentenced Knight to 100 years on the murder charge and consecutive terms of thirty and fifteen years on the other charges. Knight appealed the conviction and sentence.
The procedural history becomes a bit complicated at this point because, while the direct appeal was pending in February 2002, Knight filed for state post-conviction relief. The post-conviction petition was dismissed by the trial court and appealed by Knight. In February 2003, the state appellate court dismissed Knight's post-conviction appeal.
Meanwhile, the state appellate court issued its decision on Knight's direct appeal in May 2002, affirming the convictions but remanding the case for resentencing. Both Knight and the state filed petitions for leave to appeal ("PLAs") with the Illinois Supreme Court, seeking review of the appellate court's decision. Knight's PLA was denied in October 2002, and he filed a petition for certiorari with the United States Supreme Court. Certiorari was denied in May 2003. In June 2003, the Illinois Supreme Court also denied the state's PLA, but it directed the appellate court to vacate and reconsider its earlier disposition in light of recent decisions.
The state appellate court issued a new decision in October 2003. Again, the court affirmed Knight's convictions. This time, it also affirmed the 100 year sentence, but it still ordered the case remanded for the circuit court to determine whether Knight should be sentenced for both the hijacking and kidnapping charges and whether the terms of imprisonment should be served concurrently or consecutively. Knight did not immediately appeal the October 2003 decision, and he was resentenced on December 18, 2003. Knight did not appeal the new sentence.
In November 2006, Knight filed a second state post-conviction petition, which was denied in February 2007. In March 2007, he also filed a PLA with the Illinois Supreme Court seeking to challenge the October 2003 state appellate court decision. The Illinois Supreme Court treated the petition as a motion for permission to file a late PLA, and it denied Knight's request.
On October 29, 2007, while Knight's second state post-conviction petition was pending, he filed the present action, a federal habeas corpus petition under 28 U.S.C. § 2254. His petition raised a number of claims: (A) that his sentence violated the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000), (B) that the trial court erred in refusing several jury instructions, (C) that the trial court improperly limited defense counsel's argument, and (D) that Knight's appellate counsel provided ineffective assistance. Knight asked the court to stay the case pending the conclusion of the state proceedings, but the court instead dismissed the case with instructions to file a motion for reinstatement within thirty days of the termination of the state proceedings. (Doc. 8.)
Knight filed a third state post-conviction petition in May 2009 raising a new claim: that the sixty-year sentence imposed on Knight's co-defendant, who had been retried and resentenced, created an unconstitutional disparity between the two defendants. Knight's second state post-conviction case ended on January 27, 2010, and, on March 1, 2010, Knight filed a motion to both reinstate and stay this case pending the disposition of the third state post-conviction proceeding. (Doc. 11.) Along with his motion, Knight filed an amended habeas petition which includes the sentencing disparity claim.
On March 18, 2010, the court reinstated the case but ordered the state to respond to the request for a stay. (Doc. 14.) The state has asked the court to reject the stay and has moved to dismiss the case on the grounds that Knight's original petition is time-barred and that the new claim is meritless.
The habeas corpus statute provides for a one-year period of limitation which 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 ...