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William D. Nelson v. andrew Ott

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


March 9, 2012

WILLIAM D. NELSON,
PETITIONER,
v.
ANDREW OTT,
RESPONDENT.

The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

Before the Court is petitioner William D. Nelson's objection (Doc. 39) to Magistrate Judge Donald G. Wilkerson's Report and Recommendations (the Report) (Doc. 38), recommending that the Court grant respondent Andrew Ott's*fn1 motion to dismiss based upon the fact that Nelson's petition for writ of habeas corpus under 28 U.S.C. § 2254 is untimely. For the reasons that follow, the Court adopts the Report. Respondent's motion to dismiss is granted, his motion to show cause and for evidentiary hearing is terminated, and the case is dismissed.

Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.

In the Report, Magistrate Judge Wilkerson found that petitioner's federal petition for writ of habeas corpus was untimely under the one-year period of limitations provided for by 28 U.S.C. § 2244(d), finding that petitioner's conviction became final on May 6, 2003, ninety days from the date the Illinois Supreme Court denied petitioner's petition for leave to appeal on direct appeal. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Thus, Judge Wilkerson found that petitioner's federal petition for writ of habeas corpus was due one year later, on May 6, 2004, but petitioner did not file his petition until December 12, 2009, over five years from the last date he could timely file in federal court.

In his objection, petitioner appears to be contending that this Court should reject Magistrate Judge Wilkerson's Report based upon errors made by the Illinois state courts in determining that his petition for post-conviction relief was untimely. As Magistrate Judge Wilkerson explained in his Report, however, "federal habeas corpus relief does not lie for errors of state law." See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). This Court lacks the authority to determine whether the Illinois appellate court was correct in finding that petitioner had not "properly" filed a post-conviction petition. See Powell v. Davis, 415 F.3d 722, 726 (7th Cir. 2005) (finding that the Seventh Circuit had no authority to second-guess a ruling based on state law in the context of whether a petitioner's post-conviction petition was properly filed). Moreover, although petitioner does not raise equitable tolling in his objections, the Court finds that petitioner has not shown any extraordinary circumstances outside of his control, nor that he has diligently pursued his claim despite the obstacle. See Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008) (finding that equitable tolling may apply to cases on collateral review but only when it does not conflict with the strictures of 28 U.S.C. § 2244(d) and noting that the Seventh Circuit has yet to identify a petitioner whose circumstances warrant it). Thus, petitioner's objection must be denied. The Report is adopted, respondent's motion to dismiss (Doc. 25) is granted, the motion to show cause and for evidentiary is terminated, and the case is dismissed with prejudice. The Court issues petitioner a certificate of appealability on the timeliness issue.

IT IS SO ORDERED.

David R. Herndon Chief Judge United States District Court

2012.03.09 16:28:40 -06'00'


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