The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
In December 2001, Petitioner Lynn Green was convicted by a Cook County jury of first-degree murder and aggravated discharge of a firearm. He was sentenced to concurrent 50- and 15-year sentences. On direct appeal, the Illinois Appellate Court affirmed the murder conviction but vacated the aggravated firearm conviction. People v. Green, No. 00 CR 16898, 1st Dist. Ill. App. Ct. (2003). On March 24, 2004, the Illinois Supreme Court denied leave to appeal from that decision. People v. Green, 208 Ill. 2d 545, 809 N.E.2d 1289 (2004).
Several months later, Green sought post-conviction relief, placing his
post-conviction petition in the mail on August 25, 2004.*fn1
Notice of Filing, Ex. D to Respondent's Memorandum in Support
of Motion to Dismiss (hereinafter "Ex. D"). The trial court summarily
dismissed the petition. The Appellate Court affirmed that decision,
People v. Green, No. 00 CR 16898, 1st Dist. Ill. App. Ct. 2006, and on
September 30, 2009, the Illinois Supreme Court denied leave to appeal.
v. Green, 233 Ill. 2d 575, 919 N.E.2d 358 (2009).
On August 31, 2010, Petitioner initiated this petition for habeas relief under 28 U.S.C. § 2254 by placing his petition in the mail. Affidavit to Petition for Writ of Habeas Corpus.
Respondent moves to dismiss the petition as untimely and, for the reasons explained here, the motion is granted.
Respondent argues that the petition is untimely under 28 U.S.C. § 2244(d), and that Petitioner has not established that he is entitled to equitable tolling or to a certificate of appealability ("CA").
Petition is Untimely under 28 U.S.C. § 2244(d)
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d), sets a one-year period of limitation on an application for a writ of habeas corpus. This period runs from the latest of (A) the date when the judgment became final, either by the conclusion of direct review or the expiration of the time for seeking direct review; (B) the date on which any impediment to filing caused by an unconstitutional state action was removed, (C) the date on which a new constitutional right was recognized, or (D) the date on which the factual predicate of the claim could have been discovered through due diligence. Under § 2244(d)(1)(A), the time for seeking direct review includes the ninety days in which a petitioner could have petitioned the United States Supreme Court for a writ of certiorari. Jones v. Hulick, 449 F.3d 784, 787-88 (7th Cir. 2006) (citing Anderson v. Litscher, 281 F.3d 672 (7th Cir. 2002)).
None of the situations contemplated in § 2244(1)(B)-(D) is at issue here, so the one-year period began to run in this case when Green's conviction became final. Certain periods of time are excluded from that one-year period, however: "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." § 2244(d)(2). In other words, while a state action for post-conviction review is pending, the one-year period of limitation mandated by the statute is tolled.
In this case, the Illinois Supreme Court denied Petitioner leave to appeal on direct review on March 24, 2004. He then had ninety days to petition the United States Supreme Court for a writ of certiorari, but did not do so, and the time for seeking direct review expired ninety days later, on June 22, 2004. The one-year limitation period began running on that date, and continued until Petitioner mailed his initial petition for state post-conviction review on August 25, 2004.
Petitioner argues that the sixty-four days that passed between the expiration of his time for seeking direct review on June 22, 2004, and his initial filing for post-conviction review on August 25, 2004, should not count against the one-year filing period because, as he understands the statute, § 2244(d) "generally means that the federal petition is due one-year from the final state court denial of relief on post-conviction appeal." Pet. For Writ of Habeas Corpus Reply (hereinafter "Pet. Reply"), at 3. Thus, Petitioner urges, the period after the time for seeking direct review expired and before he initially filed a state post-conviction petition should not count against the one-year statutory limitations period for seeking habeas relief. In support, Petitioner cites Carey v. Saffold, 536 U.S. 214 (2002). In Carey, a California prisoner filed a state post-conviction petition one week before the deadline to submit his federal habeas petition under § 2244(d). Id. at 217. Five days after that petition was denied, the prisoner filed a further petition in the California appeals court, as required by state law, but that petition was also denied. Id. Four and one half months later, he filed a further petition in the California Supreme Court. Id. That petition was denied, as well, and the prisoner then promptly filed a habeas petition in federal district court. Id. at 218. The district court dismissed that petition as untimely, reasoning that the periods of time between the various state post-conviction petitions were not periods in which those petitions were deemed "pending" for purposes of § 2244(d)(2). Id. The Ninth Circuit reversed, however, and the Supreme Court agreed with the Ninth Circuit that "until the application has achieved final resolution through the State's post-conviction procedures, by definition it remains 'pending.'" Id. at 220. Carey thus held only that the one-year time for filing a federal habeas petition does not include any time that elapses between the filing of various state post-conviction proceedings. The periods of time between state post-conviction filings-the periods at issue in Carey-have already been tolled for Petitioner Green. What is at issue on this motion is the period after the conclusion of Petitioner's direct appeal and before the initiation of the state post-conviction review process. Petitioner Green contends that time period should not count against the one year period for filing this petition.
The petitioner in de Jesus v. Acevedo made a similar argument. 567 F.3d 941 (7th Cir. 2009). He argued that all time prior to the conclusion of his state collateral review process "was tolled, retroactively," or in other words, that it should be treated as pending under § 2244(d)(2). Id. at 942. The court read § 2244(d)(2) differently, however, and explained that the language of that section excludes time from the one-year period; it does not restart the period. Id. at 943. In illustrating that point, the court offered an example that addresses Petitioner Green's situation precisely: "So if a state conviction becomes final on March 1, 2008, and a collateral attack in state court begins on July 1, 2008, and lasts until July 1, 2009, the prisoner then has eight months (or until March 1, 2010) to launch a federal collateral attack." Id. Similarly here, during the sixty-four days between the expiration of Petitioner's time for direct review on June 22, 2004 and the filing of his state petition for collateral review on August 25, 2004, state post-conviction proceedings were not "pending" under the meaning of 28 U.S.C. § 2244(d)(2). Those days counted against the one-year habeas filing "clock." Once the state court collateral attack was dismissed, on September 30, 2009, Petitioner had just 301 days (until July 28, 2010) in which to file his federal petition.*fn2 Because it was not filed until August 31, 2010, the petition is untimely.
Petitioner has cited several additional cases, but none change this result. In Gendron v. United States, the Seventh Circuit concluded that the one-year period of limitations for filing a post- conviction petition began to run from the date that the convictions were affirmed on direct appeal. 154 F.3d 672 (7th Cir. 1998). The Supreme Court abrogated the holding in that case, however, concluding that the one-year period is tolled until the time for filing of petition for a writ of certiorari has expired. 537 U.S. 522, 524-25 (2003). As described above, Petitioner Green is entitled to exclusion of that 90-day period in which he could have filed a petition for a writ of certiorari; the court has not counted that time against the one-year "clock." The district court held in United States ex rel. Smith v. Sternes, 169 F. Supp. 2d 886 (N.D. Ill. 2001) that a state post-conviction ...