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Leonard v. Acevedo

December 29, 2011

LEONARD
v.
ACEVEDO



Name of Assigned Judge Harry Sitting Judge if Other or Magistrate Judge D. Leinenweber than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons given below, the Court grants Respondent's motion to dismiss Leonard's petition with prejudice [DKT 10]. Furthermore, the Court denies a certificate of appealability. To the extent that Petitioner filed his response as a separate motion [DKT 16], that motion is denied.

O[ For further details see text below.] Docketing to mail notices.

Mailed AO 450 form.

STATEMENT

On February 9, 2011, Petitioner Leonard filed a petition for habeas relief in this Court, claiming that his trial counsel violated his Sixth Amendment rights by failing to call available defense witnesses or use medical records to impeach a key prosecution witness. The Respondent has moved to dismiss that petition as time-barred under the one-year statute of limitations imposed on federal habeas claims under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

I. BACKGROUND

On May 11, 2005, an Illinois state court sentenced Petitioner Anthony Leonard to 30 years of imprisonment on three counts of attempted first-degree murder and two counts of aggravated battery with a firearm. He filed a direct appeal, but then withdrew the petition effective August 31, 2006. The parties therefore agree that direct review ended by May 27, 2005, when the trial court denied his motion to reconsider his conviction.

Under 725 Ill. Comp. Stat. 5/122-1(c), Petitioner had three years from the date of conviction to file a state petition for post-conviction relief because he did not take a direct appeal. With the help of counsel, Petitioner did so on May 29, 2007. He alleged the same failures of representation then that he alleges now: that in failing to call two alibi witnesses and one eyewitness to the shooting, and failing to impeach a prosecution witness with medical evidence of intoxication, Leonard's trial counsel violated his Sixth Amendment rights. No party disputes that that petition was timely under state law.

The Illinois trial court held a hearing on Petitioner's claims, but denied his petition on September 9, 2008. The court made a number of findings which undermine the credibility of Leonard's proffered witnesses. Leonard timely appealed, but the denial of his petition was affirmed on May 7, 2010, and rehearing was denied on June 4, 2010. His request for leave to appeal to the Illinois Supreme Court was denied on September 29, 2010. He did not seek certiorari to the U.S. Supreme Court. Petitioner subsequently submitted his federal habeas petition.

II. LEGAL STANDARD

A person in custody pursuant to a state court judgment must file any federal habeas claim within one year. 28 U.S.C. § 2244(d)(1). As applicable here, that time began to run when "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In Illinois, Defendants have 30 days to file a notice of appeal after conviction. Ill. Sup. Ct. R. 606(b). If a defendant does not file an appeal, his conviction thus becomes final for federal habeas purposes 30 days after his conviction is final at the trial level. See Knight v. Bartley, No. 07 C 6098, 2011 WL 862046, at *2 (N.D. Ill. March 4, 2011).

A petitioner has not complied with the requirement that he exhaust his state remedies if he still has an avenue under state law to present the questions in his federal petition. 28 U.S.C. ยง 2254(c); Carey v. Saffold, 536 U.S. 214, 220 (2002). Accordingly, the federal one-year statute of limitations is tolled while any properly ...


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