Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States of America, Ex Rel., Antoine Rice, (R#73220 v. Michael P. Atchison

March 7, 2012

UNITED STATES OF AMERICA, EX REL., ANTOINE RICE, (R#73220), PETITIONER,
v.
MICHAEL P. ATCHISON,*FN1 WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Judge:

MEMORANDUM OPINION AND ORDER

Pro se Petitioner Antoine Rice filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). Before the Court is Respondent's motion to dismiss Rice's habeas petition as untimely. See 28 U.S.C. § 2244(d)(1). For the following reasons, the Court grants Respondent's motion to dismiss and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2). The Court dismisses this action in its entirety. PROCEDURAL BACKGROUND

Following a 2008 jury trial in the Circuit Court of Cook County, Illinois, a jury convicted Rice of first degree murder and for discharging a firearm proximately causing the death of the victim. The Circuit Court sentenced Rice to forty years of imprisonment for the murder conviction with a twenty-five year consecutive term for the firearm enhancement. Rice appealed and the Illinois Appellate Court affirmed his conviction and sentence on July 27, 2010. Thereafter, Rice filed a Petition for Leave to Appeal ("PLA") that the Supreme Court of Illinois denied on November 24, 2010. The United States Supreme Court denied his petition for a writ of certiorari on April 18, 2011.

On October 11, 2011,*fn2 Rice filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., in the Circuit Court of Cook County. On February 8, 2012, the Circuit Court dismissed the post-conviction petition. Rice filed his notice of appeal on March 22, 2012, but the notice of appeal was untimely because it was filed beyond the thirty-day deadline, March 9, 2012. On June 5, 2012, the Illinois Appellate Court denied Rice's motion for leave to file a late notice of appeal.

Rice signed the present habeas petition on October 11, 2012 and the envelope was postmarked October 12, 2012. The district court docketed Rice's habeas petition on October 16, 2012. Construing Rice's pro se habeas petition liberally, see Gomez v. Randle, 680 F.3d 859, 864-65 (7th Cir. 2012), he brings the following claims:

1. The Circuit Court denied him the right to a fair and impartial jury in violation of the Sixth and Fourteenth Amendments when the court failed to ask prospective jurors whether they understood and accepted the principles pursuant to People v. Zehr, 103 Ill.2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), as required by Illinois Supreme Court Rule 431(b);

2. He was denied a fair trial when the prosecutor: (a) commented on his failure to testify, (b) personally vouched for the veracity of State's witnesses, and (c) shifted the burden of proof by inaccurately describing the theory of defense;

3. His sixty-five year sentence was an abuse of the Circuit Court's discretion because it was based on the court's personal abhorrence for crimes involving firearms, a factor inherent in the offense;

4. Trial counsel was ineffective for failing to move to quash his arrest and suppress evidence;

5. Trial counsel failed to object to inadmissible hearsay testimony at trial;

6. The twenty-five year firearm enhancement was an unconstitutional double enhancement; and

7. Appellate counsel was constitutionally ineffective for failing to raise the firearm enhancement argument on direct appeal.

LEGAL STANDARD

"AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus." Wall v. Kholi, ___ U.S. ___, 131 S.Ct. 1278, 1283, 179 L.Ed. 252 (2011) (citing 28 U.S.C. ยง 2244(d)(1)(A)); see also Ray v. Clements, 700 F.3d 993, 1003 (7th Cir. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.