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George Harrison v. Keith Anglin

May 24, 2011

GEORGE HARRISON, PETITIONER,
v.
KEITH ANGLIN, RESPONDENT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner George Harrison ("Harrison") filed apetition for writ of habeas corpus under 28 U.S.C. § 2244, challenging the fifty-year sentence imposed on him after a jury found him guilty of first-degree murder by accountability in 1993. Respondent Keith Anglin ("Anglin"), Warden of the Danville Correctional Facility, moves to dismiss the petition as untimely. For the following reasons, the Court grants Anglin's Motion to Dismiss and denies Harrison a certificate of appealability.

BACKGROUND

The facts underlying this case were established by evidence at trial and are undisputed. The Court therefore adopts the underlying facts set forth by the Illinois appellate court. See 28 U.S.C. § 2254(e)(1); see also Virsnieks v. Smith, 521 F.3d 707, 714 (7th Cir. 2008).

In May 1991, Harrison and George Davis ("Davis") rented a car and went looking for an individual known as "Little Tim," who they believed had previously shot Davis. See People v. Harrison, No. 1-93-4176 at 4-5 (Ill. App. Ct. Sept. 29, 1995) (unpublished under Ill. Sup. Ct. R. 23) ("Harrison I"). While Harrison drove, Davis fired a gun at a group of people near the building, killing Lathon Rogers. See id.

On September 16, 1992, after separate jury trials, both Harrison and Davis were found guilty of first-degree murder and each was sentenced to fifty years imprisonment. See People v. Harrison, No. 91-CR-15232 at 2 (Ill. App. Ct. July 31, 2009) ("Harrison II").

Harrison appealed his conviction, arguing that the state failed to conduct a Batson hearing and, alternatively, that his fifty-year sentence was excessive due to the minor role he played in the crime and his potential for rehabilitation. See Harrison I. The Illinois appellate court upheld the conviction and the length of the sentence on September 29, 1995. See id. Harrison did not file a timely petition for leave to appeal to the Illinois Supreme Court and his late petition for leave to appeal was denied on December 2, 1999. See Harrison II at 2. Harrison did not appeal to the United States Supreme Court.

Davis, Harrison's co-offender, also appealed his conviction. The Illinois appellate court overturned Davis's conviction due to a Batson violation and several instances of ineffective assistance of counsel. See People v. Davis, 677 N.E.2d 1340, 1348 (Ill. App. Ct. 1997). In September 1999, Davis was retried and again found guilty of first-degree murder. See Harrison II at 2. He received a sentence of forty-eight years imprisonment. See id. The appellate court reversed this conviction on November 18, 2003 due to prosecutorial misconduct. See id. On remand, Davis entered either a guilty plea or a plea of nolo contendere,*fn1 and was given a twenty-year sentence on April 21, 2005. See id. at 3. Harrison learned about Davis's twenty-year sentence from a fellow inmate on September 26, 2005.

On October 17, 2005, Harrison filed a post-conviction petition alleging that the fifty-year sentence imposed on him was unconstitutionally disparate in comparison with the twenty-year sentence that was ultimately imposed on Davis. Harrison's petition was denied by the Illinois circuit court on January 11, 2007 and the Illinois appellate court affirmed the decision on July 31, 2009. See Harrison II. The Illinois Supreme Court denied Harrison's petition for leave to appeal on November 25, 2009. See People v. Harrison, No. 109220 (Ill. Nov. 25, 2009).

Harrison then filed a petition for a writ of habeas corpus in this Court on August 3, 2010.

DISCUSSION

I. Timeliness of the Petition

The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that "a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). As is relevant here, the limitation period begins to run on the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id. § 2244(d)(1)(D). Here, the parties dispute the date on which the factual predicate could have been discovered: Anglin, in his Motion to Dismiss, argues that the date is April 21, 2005, the day that Davis was actually sentenced; Harrison responds that the date is September 26, 2005, the day that he learned from a fellow inmate that Davis received a twenty-year sentence.

Under the AEDPA, the limitations period begins to run "when the factual predicate could have been discoverable through the exercise of due diligence, not when it was actually discovered by a given prisoner." Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (internal quotations omitted). Matters of public record are generally considered discoverable by due diligence. See id. at 359-60 (noting that use of a subjective standard based on actual knowledge, rather than an objective standard based on constructive knowledge, would render § 2244(d)(1)(D) essentially null). Sentences are documented by the courts, and are therefore part of the public record. U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 754 (1989) ("sentences are public events that are usually documented in court records."). Here, the issuance of Davis's twenty-year sentence, the factual predicate for Harrison's habeas corpus claim, was discoverable through reasonable diligence when it became part of the ...


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