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United States of America, Ex Rel v. Marcus Hardy

June 22, 2011

UNITED STATES OF AMERICA, EX REL.,
MAURICE CANNON, PETITIONER,
v.
MARCUS HARDY, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Judge

MEMORANDUM OPINION AND ORDER

On April 26, 2011, pro se Petitioner Maurice Cannon filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). Before the Court is Respondent's motion to dismiss Cannon's habeas petition as untimely.*fn1 See 28 U.S.C. § 2244(d)(1). For the following reasons, the Court grants Respondent's motion to dismiss. The Court also declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

PROCEDURAL BACKGROUND

Following a 2003 bench trial in the Circuit Court of Cook County, Illinois, the trial court found Cannon guilty of predatory criminal sexual assault of a child, sexual exploitation of a child, and unlawful restraint. Thereafter, Cannon appealed his judgment of conviction, and, on June 27, 2005, the Illinois Appellate Court affirmed his conviction. Cannon then filed a petition for leave to appeal ("PLA") that the Supreme Court of Illinois denied on March 28, 2007.

Although Cannon maintains that he filed a petition for a writ of certiorari in the United States Supreme Court that was denied on February 1, 2008, Respondent has confirmed -- by checking the Supreme Court docket -- that Cannon did not file a petition for writ of certiorari following the resolution of his direct appeal in the Illinois courts. The Court independently verified that Cannon did not file a petition for a writ of certiorari after his direct appeal in the Illinois courts.

On February 13, 2008, Cannon filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Act, 725 ILCS 5/122-1, et seq., in the Circuit Court of Cook County. On March 28, 2008, the trial court dismissed Cannon's post-conviction petition. Cannon did not file a notice of appeal from that dismissal order. On December 10, 2010, Cannon filed a state habeas corpus complaint pursuant to 735 ILCS 5/10-101, et seq., that the Circuit Court of Cook County dismissed on January 27, 2011. Cannon did not appeal from that ruling.

Cannon signed and dated his habeas petition on April 15, 2011.*fn2 On April 26, 2011, the Court received Cannon's pro se habeas petition brought pursuant to 28 U.S.C. § 2254(d). Construing his pro se petition liberally, see Ward v. Jenkins, 613 F.3d 692, 697 (7th Cir. 2010), Cannon argues that the State's witnesses, including the mother of the seven-year-old victim, Chicago Police Officer Debra Witt, Illinois Department of Child and Family Services Investigator Clifton Woodward, and Dr. Purim-Shem-Tov, were unreliable witnesses and that their testimony was insufficient to prove his guilt beyond a reasonable doubt.

LEGAL STANDARD

"AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus." Wall v. Kholi, ___ U.S. ___, 131 S.Ct. 1278, 1283, 179 L.Ed. 252 (2011) (citing 28 U.S.C. § 2244(d)(1)(A)); see also Griffith v. Rednour, 614 F.3d 328, 329 (7th Cir. 2010). "This period runs 'from the latest of' four specified dates, including":

(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 or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable 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 ...


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