The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Miguel Rivera ("Rivera") filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2001 state court convictions for aggravated kidnapping (three counts) and aggravated battery (one count). These convictions stemmed from Rivera confining his ex-girlfriend and her two children against their will and stabbing the man living with his ex-girlfriend. Rivera alleges: (1) juror misconduct; (2) insufficiency of the evidence; (3) ineffective assistance of counsel; and (4) actual innocence. (R. 1, Habeas Pet.) The Attorney General moved to dismiss Rivera's petitionas untimely. For the following reasons, the Court grants the Attorney General's Motion to Dismiss.
After the jury convicted Rivera of the three aggravated kidnappingcharges and the aggravated battery charge, the Circuit Court of Cook County sentenced him to three concurrent 40-year sentences and a concurrent 5-year sentence. (R. 17, Ex. D.) The Illinois Appellate Court affirmed Rivera's conviction on March 14, 2003, and the Supreme Court of Illinois denied his petition for leave to appeal on October 7, 2003. (R. 17, Ex. A, E.) Rivera never filed a writ of certiorari in the U.S. Supreme Court. (R. 16.)
On November 24, 2003, Rivera filed a pro se post-conviction petition in the Circuit Court of Cook County under 725 ILCS 5/122-1 alleging various constitutional violations in his criminal trial and sentencing. (R. 16.) The Circuit Court of Cook County dismissed Rivera's post-conviction petition on September 14, 2006. (R. 17, Ex. G.) Upon appeal, the Illinois Appellate Court allowed the Public Defender's Office to withdraw from the appeal because there were no issues of arguable merit, and on August 20, 2008, the appellate court affirmed the circuit court. (R. 17, Ex. D.) The Supreme Court of Illinois denied Rivera's petition for leave to appeal on January 28, 2009. (R. 17, Ex. I.)
Finally, on June 11, 2010, the Supreme Court of Illinois received Rivera's motion for leave to file a petition for writ of habeas corpus ("state habeas motion").*fn1 The state supreme court denied this motion on September 17, 2010. (R. 17, Ex. J.) As a result, Rivera submitted a § 2254 habeas petition, which was dated November 16, 2010, but filed with this Court on December 16, 2010. (R. 1.)
There is a one-year statute of limitations for §2254 habeas petitions under 28 U.S.C. § 2244(d)(1). This one-year period starts running 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 . . . is removed"; (C) the date on which "the constitutional right asserted was initially recognized by the Supreme Court" and made retroactive 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 the exercise of due diligence." 28 U.S.C. § 2244(d)(1). Because there was not a state-created impediment, a recently recognized and retroactive constitutional right, or newly discovered information that supports Rivera's claims, the Court discards (B), (C), and (D).
Applying the one-year statute of limitations to his petition, the statute began to run when the judgment against Rivera became "final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The Supreme Court of Illinois denied Rivera's petition for leave to appeal on October 7, 2003 and he did not file a certiorari petition in the Supreme Court of the United States within the required 90 days. Direct review ended, and Rivera's judgment became final on January 5, 2004, 90 days after October 7, 2003. See Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009) (under § 2244(d)(1)(A), conviction becomes final when "the time for filing a certiorari petition expires"); Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002) ("[I]f certiorari to Supreme Court is not sought, all direct criminal appeals in the state system are concluded, followed by the expiration of time allotted for filing a petition for writ.").
A "properly filed" application for state post-conviction or other collateral review, however, can toll the one-year limitations period. See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."). As the Attorney General concedes, and § 2244(d)(2) allows, Rivera "properly filed" his post-conviction petition on November 24, 2003. The filing of the post-conviction petition occurred before direct review became final, so the one-year limitation could not begin to run until the petition and direct review were no longer pending. See, e.g., Blackwell v. McCann, No. 06 C 6789, 2008 WL 4442631, at *3 (N.D. Ill. Sept. 29, 2008) (Dow, J.) (where post-conviction petition filed before direct review became final, limitations period tolled until the Supreme Court of Illinois denied the petition for leave to appeal). The state circuit court and appellate court dismissed the petition and on January 28, 2009, the state supreme court denied Rivera's petition for leave to appeal. Rivera did not appeal this to the Supreme Court of the United States so the one-year limitations period began to run on January 29, 2009. See Gutierrez v. Schmig, 233 F.3d 490, 490-91 (7th Cir. 2000) ("[W]e conclude that the one-year limitations period is not tolled during the time a state post-conviction petitioner could have filed, but did not file, a petition for certiorari review in the United States Supreme Court."). Unless further tolled, Rivera had until January 29, 2010 to file his § 2254 habeas motion.
After his unsuccessful post-conviction petition, Rivera filed with the state supreme court a motion for leave to file a petition for habeas corpus. The remaining question is whether Rivera's state habeas motion further tolls the filing period.
The state habeas motion is dated June 18, 2009. Inexplicably, however, the state supreme court did not receive it until nearly a year later, on June 11, 2010. Neither the § 2254 motion and its documentation, nor the response brief shed any light on the authenticity of the June 18, 2009 date. And assuming the date is accurate, the location of the state habeas motion during this year and how it eventually made its way to the Supreme Court of Illinois is a mystery.
Of course, Rivera would like the Court to toll the limitations period under the mailbox rule starting on June 18, 2009 (instead of June 11, 2010) and extending until the state supreme court denied the state habeas motion on September 17, 2010. Because the limitations period began on January 29, 2009 and this Court received Rivera's § 2254 habeas motion on December 16, 2010, assuming tolling from June 2009 until September 2010, Rivera would fit within the one-year period. But the Court need not address whether Rivera's declaration provides satisfactory facts to invoke the mailbox rule, which starts tolling when the prisoner places the filing in the prison mail system, not when the court actually receives the filing. As the Court will explain, the state habeas motion was not "properly filed" and did not toll the limitations period because Rivera ultimately failed to receive permission to make such a filing. In other words, because the state habeas motion never tolled the limitations period in the first place, it is unnecessary to determine whether to apply the June 18, 2009 (placement in prison mailing system) or June 11, 2010 date (court's receipt of motion). In either case, the one-year clock continued to run.
Under § 2244(d)(2), Rivera cannot get the benefit of tolling for the state habeas motion unless it was "properly filed." The Court looks to the relevant state laws and rules governing the filing of post-conviction petitions or habeas motions in making this determination. Rice v. Bowen, 264 F.3d 698, 701 (7th Cir. 2001). "[W]here state law requires pre-filing authorization . . . simply taking steps to fulfill this requirement does not toll the statute of limitations." Martinez v. Jones, 556 F.3d 637, 638 (7th Cir. 2009). Martinez addressed the related scenario where Illinois state law required a petitioner to obtain permission before filing a second or successive post-conviction petition; because the Illinois state court denied Martinez permission to file a second post-conviction petition, that petition was not "properly filed" and did not toll the one-year limitations period. Martinez, 556 F.3d at 639; Tinker v. Hanks, 255 F.3d 444, 445 (7th Cir. 2001) (failure to satisfy Indiana's "filing precondition" did not toll limitations period). Here, Illinois Supreme Court Rule 381 requires that Rivera obtain permission before filing a habeas complaint: "Proceedings in the supreme court in original actions in cases relating to . . . habeas corpus . . . shall be instituted by filing a motion, supported by explanatory suggestions, for leave to file a complaint seeking appropriate relief." Ill. Sup. Ct. R. 381(a); U.S. ex rel. Keller v. McCann, 553 F. Supp. 2d 1002, 1011 (N.D. Ill. 2008) (Castillo, J.) (after direct review and post-conviction petition, "[p]petitioner attempted to raise  claims for ...