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United States of America Ex Rel. v. Mike Atchison

December 15, 2011

UNITED STATES OF AMERICA EX REL. JIMMY SPENCER, PETITIONER,
v.
MIKE ATCHISON, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Petitioner Jimmy Spencer was convicted of two counts of attempted intentional homicide of an unborn child and one count of aggravated battery of a child. Spencer filed an appeal, but withdrew it. More than a year later, Spencer unsuccessfully sought post-conviction relief from the state courts. Six months after the Illinois Supreme Court denied review of the dismissal of his post-conviction petition, Spencer filed this petition for writ of habeas corpus. Respondent David Rednour has moved to dismiss. For the reasons explained here, the court concludes that Spencer's petition is untimely and that he is not entitled to equitable tolling. The motion to dismiss is therefore granted.

FACTUAL AND PROCEDURAL BACKGROUND

On February 22, 2005, following a jury trial, Petitioner was convicted of two counts of attempted intentional homicide of an unborn child and one count of aggravated battery of a child.*fn1

(Resp't's Mot. to Dismiss ¶ 2 (hereinafter "Resp't's Mot.").) Petitioner was sentenced to three consecutive thirty-year prison terms. (Dec. 15, 2009 Order in People v. Spencer, Ex. A to Resp't's Mot., at 1.) Petitioner filed a direct appeal, but, after obtaining information from counsel regarding the possibility of post-conviction relief in an August 10, 2006 letter, Petitioner voluntarily withdrew his appeal. (Spencer Pet. for Writ of Habeas Corpus at 24.) Counsel's letter made no mention of the availability of federal habeas corpus relief or the time frame for seeking such relief. (Id.) Petitioner's motion to dismiss was granted by the Illinois Appellate Court on September 1, 2006. (Dec. 15, 2009 Order in People v. Spencer at 1.)

Almost eighteen months later, on February 26, 2008, Petitioner filed a petition for post-conviction relief with the state trial court. (Pet. for Post-Conviction Relief in People v. Spencer, Ex. B to Resp't's Mot.) The trial court dismissed that petition for post-conviction relief on May 9, 2008, (Resp't's Mot. ¶ 3), and after filing a notice of appeal, Petitioner's attorney sought and was granted leave to withdraw as appellate counsel on December 15, 2009. (Dec. 15, 2009 Order in People v. Spencer at 2.) Petitioner himself sought leave to appeal with the Illinois Supreme Court, but it was denied on September 29, 2010. (Sept. 29, 2010 Order in People v. Spencer, Ex. C to Resp't's Mot.) Finally, on April 11, 2011, Petitioner filed his pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging various violations of his Sixth and Fourteenth Amendment rights. (Spencer Pet. for Writ of Habeas Corpus at 10--18.) Pursuant to 28 U.S.C. § 2244(d)(1), Respondent moved to dismiss the petition as time-barred. (Resp't's Mot. at 1.)

DISCUSSION

Respondent contends that Spencer's petition for a writ of habeas corpus is barred by the one-year limitations period established in 28 U.S.C. § 2244(d)(1). A case can be dismissed as untimely on a Rule 12(b) motion when the complaint itself "plainly reveals that the action was not brought within the statutory period." U.S. ex rel. Walner v. NorthShore Univ. Healthsystem, 660 F.Supp.2d 891, 898 (N.D. Ill. 2009) (citing United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). Under some circumstances, the doctrine of equitable tolling may be available to sustain an otherwise-untimely habeas filing. For the reasons explained here, however, the court concludes that petition is untimely and that the circumstances do not support equitable tolling.

A. The Statute of Limitations

The Antiterrorism and Effective Death Penalty Act ("AEDPA") imposes a one-year statute of limitations on a petition for a writ of habeas corpus. This limitation period runs 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;

(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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