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United States of America Ex Rel. v. Jerry L. Sternes

June 6, 2011


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge



Michael Gilyard ("Gilyard"), continuing to pursue any possible (or, perhaps more accurately, any impermissible) route to attacking his decade-old felony murder conviction in the Circuit Court of Cook County, has just filed what he captions "Motion for Relief from Judgment" ("Motion"). This is the latest among Gilyard's litigative travels through both the state and federal court systems, and it has come to this Court's calendar by random assignment because Honorable David Coar, who handled Gilyard's 28 U.S.C. §2254*fn1 Petition for Writ of Habeas Corpus from its inception in 2001, left his District Court position at the end of the year 2010.

It would be an understatement to describe the course of this litigation as convoluted, and pages 2-7 of Gilyard's 22-page handprinted Motion recount his travels through the courts. For present purposes the focus can begin with the April 30, 2004 dismissal of Gilyard's Section 2254 federal habeas proceeding, which ultimately eventuated in our Court of Appeals' October 9, 2007 affirmance (attached to this opinion as Ex. 1) of Judge Coar's denial of Gilyard's Fed. R. Civ. P. ("Rule") 60(b) motion for relief from the dismissal of his habeas petition, followed by the Supreme Court's driving of the final nail in the coffin of that effort by its denial of certiorari.

Although a detailed consideration of Gilyard's current belated arguments would plainly disclose their substantive poverty, it is unnecessary to travel that path because Gilyard so obviously fails the underlying Rule 60(c)(1) requirement that any "motion under Rule 60(b) must be made within a reasonable time." This opinion therefore turns to that threshold issue.

Unsurprisingly, Gilyard's extensive and extended litigation efforts have given him considerable familiarity (though, as will be seen, not enough) with procedural limitations on post-conviction procedures. Because Gilyard expressly recognizes the problems that he would confront if he sought to essay a second petition for federal habeas relief,*fn2 he seeks instead to call once again upon Rule 60(b)--more precisely, on the catchall provision of Rule 60(b)(6). But analysis readily demonstrates the total absence of justification for his undertaking the current proceeding so many years down the pike.

When the underbrush included in Gilyard's narrative is cleared away, it is plain that at the latest he learned more than four years ago--in January 2007--(1) about the earlier denial of his above-described effort to obtain Rule 60(b) relief and (2) about the nature of the reasons that had caused the denial of a certificate of appealability ("COA")(Motion at 5). Further developments had then led to the already-referred to Court of Appeals' October 2007 affirmance of that denial (Ex. 1) and the Supreme Court's subsequent denial of certiorari.

Gilyard's Motion at 6-7 says only this in an effort to paper over the extended time gap between those last-mentioned federal proceedings and his current Motion:

With the reasons for The Court's denial of a COA finally in his possession, Petitioner then petitioned for a writ of certiorari on April 25, 2008. (Gilyard v. Chandler, No. 07-10710). Said petition was denied on June 5, 2008 and the request for rehearing denied on September 5, 2008.

Thereafter, Petitioner initiated a mandamus/habeas corpus action in the Illinois courts on February 18, 2009 attacking his conviction and sentence as void while alleging that: (1) The trial court lacked the power to convict Mr. Gilyard of felony-murder based on People v. Morgan, 197 Ill.2d 404 (2001), ensuring that a defendant will not be punished as a murderer where the State has failed to prove that a knowing murder occurred; (2) The Mandatory Supervised Release portion of Mr. Gilyard's sentence is void where the calculation and execution thereof causes his maximum statutory penalty to be exceeded; and (3) The charge of felony-murder predicated on home invasion is void where it fails to state an offense.

The trial court dismissed the petition without an evidentiary hearing on May 5, 2009. On September 30, 2010 the Illinois Appellate Court affirmed the dismissal in an apparent merits determination, and, on January 26, 2011 the Illinois Supreme Court denied leave to appeal, No. 111356.

This Court has obtained a copy of the Illinois Appellate Court's unpublished order in that state court proceeding (a document that Gilyard omitted to include as an exhibit to his Motion) and has attached it as Ex. 2 to this opinion. To read it is to confirm the total irrelevance of those state court proceedings as a "reasonable time" factor for Rule 60(c)(1) purposes.

There is no arguable justification for the multiyear delay that ensued from the latest of Gilyard's federal efforts before he launched this second Rule 60(b) motion. Motion at 7 says he "only attacks the April 30, 2004 judgment of This Court on the basis of the procedural defect it contains." Motion at 8-9 then itemizes the purported procedural defects, the last of which is said to have taken place years ago ("the misplacing of the notice of presentment attached to the October 18, 2006 motion requesting a ruling on the Rule 60(b) motion"). Even if the later rulings by our Court of Appeals (in 2007) and the Supreme Court (in 2008) could be tacked onto that last date, Gilyard's present motion is unreasonably tardy as a matter of law.

Conclusion This excursion through Gilyard's tortuous litigative history has been longer than this Court would have preferred, but the prolonged trip has more than amply demonstrated the untimeliness of his current effort to escape the strictures faced by any second habeas corpus petition ...

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