The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
Dushon Decker has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Nedra Chandler, the warden of the state prison where Decker is incarcerated, has moved to dismiss the petition on the ground that it is untimely. For the reasons stated below, the Court grants Chandler's motion.
On October 23, 1995, Decker pled guilty to first degree murder and was sentenced to a thirty-five year prison term. The transcript of Decker's guilty plea hearing shows that the trial judge told Decker that he would have to serve thirty days of mandatory supervised release (MSR) after he completed his prison sentence . Resp.'s Reply, Ex. A at 85. This was incorrect. Illinois law required a three year MSR term.
Decker did not take a direct appeal. He says he was satisfied with the terms of the plea agreement as he understood it and that he was unaware that the judge had erred in describing the length of the MSR term.
Decker alleges that in February 2006, a prison official told him that he would have to serve a three year MSR term. After he learned this, Decker says, he attempted to obtain the transcript of his guilty plea hearing. In an affidavit that he submitted in support of his state post-conviction petition, Decker states that he wrote to the clerk of the Circuit Court of Cook County to obtain the transcript. He received two responses in April 2006; the first requested his case number and the second said that his request was being forwarded to the court's criminal division. Decker Affid. ¶ 5. Decker says that he wrote to the court reporter's office on April 27, 2006 seeking the transcript but received no response. Id. Decker says that "[i]n a frustrated situation and after much time had passed[,] I sought outside help and support from my Church family member Mrs. Judy Garkey, she was able to obtain a copy of my transcripts." Id. ¶ 6. Decker says that he received the transcript on July 23, 2007. Id. Upon reading the transcript, Decker says, "I learned that I in fact had a due process issue[ ]" because the judge had advised him that his MSR term would be only six months. Id.
Decker filed a state post-conviction petition on August 30, 2007. In the petition, he argued that his constitutional rights were violated because he was not given the benefit of the bargain of his negotiated plea agreement. The state trial court denied the petition on the merits. The state appellate court affirmed, and the Illinois Supreme Court denied Decker's petition for leave to appeal on September 29, 2010. Decker did not file a petition for a writ of certiorari. He placed his federal habeas corpus petition in the mail on January 19, 2011, and the clerk received the petition on January 31, 2011.
Chandler has moved to dismiss, arguing that Decker's habeas corpus petition is time-barred. Chandler argues that the one year limitation period began to run in April 1996, when the law establishing the limitation period went into effect, and that the time for filing a habeas petition expired years before Decker filed both his state post-conviction petition and his federal habeas corpus petition.
In response, Decker argues that the limitation period did not begin until he learned the factual predicate for his claim. He contends that this did not happen until he obtained the guilty plea transcript in July 2007. Decker argues that the one year limitation period was tolled starting on August 30, 2007, when he filed his state post-conviction petition, and did not begin to run again until September 29, 2010, when the state supreme court denied his petition for leave to appeal. Decker filed his federal habeas corpus petition less than four months later, making it timely, he argues. Decker contends in the alternative that he is entitled to equitable tolling of the limitation period because he diligently pursued his rights once he was first notified that he would have to serve a three year MSR term.
In reply, Chandler disputes Decker's contention that the limitation period did not start to run until the date he claims he learned he would have to serve a three year MSR term. Chandler also argues that even if Decker is entitled to a later start date for the one year limitation period, that date was February 2006, when he says he was told his MSR term would be three years. Decker did not file his post-conviction petition until eighteen months after that. Chandler argues that all of the intervening time counts against the one year limitation period, making Decker's petition untimely. She also argues that Decker is not entitled to equitable tolling because he did not diligently pursue his rights during the interim period.
Under 28 U.S.C. § 2244(d)(1),
A one-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. The limitation period shall run 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; [or] . . .
(D) the date on which the ;3690;3690factual ;3691;3691predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § ...