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United States of America Ex Rel. v. Gregory Schwartz

October 6, 2011

UNITED STATES OF AMERICA EX REL.
JOSEPH DAVIS, PETITIONER,
v.
GREGORY SCHWARTZ, WARDEN, PICKNEYVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Respondent's motion to dismiss. For the reasons stated below, the motion to dismiss is granted.

BACKGROUND

In 1997, Davis was convicted in state court in a bench trial of attempted murder and aggravated kidnapping and was sentenced to a 20 year term on the kidnapping and a concurrent extended 50 year term for attempted murder. Davis was convicted based on evidence showing that in a dispute over money Davis took part in forcing a victim into the trunk of a car, pouring gasoline on the victim, and lighting the victim on fire.

Davis appealed his conviction and on March 11, 1999, the state appellate court affirmed the conviction. Davis did not file a petition for leave to appeal (PLA) to the Illinois Supreme Court on his direct appeal. On October 15, 2007, Davis filed a pro se petition for relief from judgment, which was denied by the trial court on April 10, 2008. Davis did not appeal the denial in a timely fashion and the Illinois Appellate Court denied Davis' motion for leave to file a late notice of appeal. Davis then filed a PLA with the Illinois Supreme Court which was denied on September 30, 2009. On June 1, 2010, Davis filed a state habeas corpus complaint in state court, which was dismissed on July 29, 2010. Davis appealed the dismissal, but subsequently moved to dismiss his own appeal. There is no indication in the record that Davis filed any other post-conviction or collateral attacks on his conviction. On May 3, 2011, Davis filed the instant petition for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2254 (Section 2254 Petition). Respondent moves to dismiss the Petition.

LEGAL STANDARD

An individual in custody pursuant to state court judgment may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to clearly established federal law "'if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'" Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable application of clearly established federal law "'if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.'" Emerson, 575 F.3d at 684 (quoting Bell, 535 U.S. at 694).

DISCUSSION

Respondent argues that the Petition is untimely and that there is no basis to equitably toll the limitations period.

I. Untimely Filing

Respondent argues that the Petition is untimely and the limitations period should not be equitably tolled. The statute of limitations for a Section 2254 Petition is provided in 28 U.S.C. § 2244(d) (Section 2244(d)), which states the following:

(d)(1) 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. The ...


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