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Johnny English v. Gerardo Acevedo

March 20, 2012

JOHNNY ENGLISH, PETITIONER,
v.
GERARDO ACEVEDO, WARDEN RESPONDENT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Respondent's motion to dismiss Petitioner Johnny English's (English) pro se petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254. For the reasons stated below, the court grants the motion to dismiss.

BACKGROUND

English was charged with shooting two individuals during a robbery, killing one of the victims. English was convicted in a bench trial in state court of first degree murder and attempted first degree murder, and was sentenced to 70 years in prison for the murder and 30 years in prison for the attempted murder. English appealed the conviction, and on February 19, 1999, the Illinois Appellate Court affirmed the conviction. English filed a petition for leave to appeal to the Illinois Supreme Court (PLA), which was denied on June 2, 1999.

On December 1, 1999, English filed a pro se post-conviction petition (First Post-Conviction Petition), and English's counsel then filed a post-conviction petition (Second Post-Conviction Petition). Both post-conviction petitions were denied by the trial court on January 7, 2002. People v. English, 933 N.E.2d 366, 372 (Ill. App. Ct. 2010). English then filed an appeal, and on March 19, 2004, the Illinois Appellate Court affirmed the trial court. English filed a PLA, which was denied on October 6, 2004.

On February 8, 2005, English filed a third post-conviction petition (Third Post-Conviction Petition). The State moved to dismiss the Third Post-Conviction Petition as successive. The trial court granted the motion to dismiss in part, but found that part of the Third Post-Conviction Petition was not entirely successive. English, 933 N.E.2d at 373-74. After conducting an evidentiary hearing, the trial court denied the Third Post-Conviction Petition. English then filed an appeal, and on July 9, 2010, the Illinois Appellate Court affirmed the trial court in part and reversed the trial court in part, finding that the entire Third Post-Conviction Petition was an improper successive petition. English, 933 N.E.2d at 378 (holding that the "defendant [w]as unable to establish the requisite cause to file a successive post-conviction petition"). English filed a PLA, which was denied on November 24, 2010. English then filed the Petition in this case in an envelope postmarked on January 28, 2011. Respondent now moves to dismiss the Petition as untimely.

LEGAL STANDARD

The statute of limitations for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is provided in 28 U.S.C. § 2244(d), which states the following:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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 the exercise of due ...


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