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United States of America Ex Rel. v. Randy Davis

January 23, 2012

UNITED STATES OF AMERICA EX REL.
KELLEY TONEY, PETITIONER,
v.
RANDY DAVIS, WARDEN, PINCKNEYVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Respondent Randy Davis's motion to dismiss [8] Petitioner Kelley Toney's petition for writ of habeas corpus. In his motion, Davis contends that Toney's petition is untimely under 28 U.S.C. § 2244(d)(1) because it was filed more than one year after Toney's conviction became final. For the reasons stated below, the Court grants Davis's motion [8], and dismisses Toney's petition with prejudice.

I. Background

On July 14, 2000, Petitioner Kelley Toney was convicted of first-degree murder in Illinois state court and was sentenced to thirty years in prison. The Illinois Appellate Court affirmed Toney's conviction on May 24, 2002. People v. Toney, 1-00-2827 (Ill. App. Ct. 1st Dist. May 24, 2002). Toney sought discretionary review with the Illinois Supreme Court, but the court denied his petition for leave to appeal on February 5, 2003. People v. Toney, 202 Ill. 2d 695 (2003). Toney did not petition the United States Supreme Court for a writ of certiorari.

On November 15, 2006, Toney filed in the Circuit Court of Cook County a pro se petition for post-conviction relief pursuant to 725 ILCS 5/122-1. In his petition, Toney made a number of arguments, including the contention that the state presented perjured testimony from a detective at trial and that his Miranda rights had been violated. Recognizing that his state post-conviction petition was untimely, Toney also moved for permission to file a late petition, arguing that his late filing was the result of (1) his lack of "mental fitness"; (2) the passing of his brother; and (3) his inability to obtain a copy of his trial transcript. The Circuit Court sua sponte dismissed Toney's petition as "frivolous and patently without merit," and noted in passing that the petition was untimely.*fn1 People v. Toney, 98-CR-24758 (Dec. 6, 2006). The Circuit Court's decision was affirmed by the Illinois Appellate Court on December 18, 2009. People v. Toney, No. 1-08-0051 (Ill. App. Ct. 1st Dist. Dec. 18, 2009). On May 26, 2010, the Illinois Supreme Court again denied Toney's petition for leave to appeal.

On March 28, 2011, Toney filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Along with his petition, Toney moved to proceed in forma pauperis and for the appointment of counsel. In his petition, Toney claims that he was questioned and gave a statement before receiving a Miranda warning, and that the state twice offered perjured testimony at trial. Toney seeks an evidentiary hearing on each of his claims. Toney also states that despite his efforts, he has been unable to obtain from the Clerk of the Circuit Court of Cook County a copy of his trial transcript.

This Court granted Toney's motion for leave to proceed in forma pauperis, but denied his motion for appointment of counsel without prejudice [5]. In that order, the Court stated that Toney's petition "appear[ed] untimely," but, citing the affidavit that Toney had filed in support of his motion to file an untimely post-conviction petition in state court, which is part of the record here, the Court asked the parties to address the "grounds for Petitioner's delay of more than three years between the time that his conviction became final on direct review and the commencement of post-conviction proceedings." [5 at 1.] In response, Davis moved to dismiss Toney's petition, arguing that Toney's petition is untimely and that equitable tolling is not warranted here. Toney did not file a reply.

II. Analysis

A. 28 U.S.C. § 2244(d)(1)

The Antiterrorism and Effective Death Penalty Act ("AEDPA") established a one-year limitations period for state prisoners to file a federal habeas petition, running from the latest of four dates:

(A) the date on which 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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