The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
After a 2002 trial in the Circuit Court of Cook County, a jury found Jose Vidaurri ("Petitioner") guilty of the first-degree murder of Dauntrez Snowden and the attempted murder of Nicholas Mobley. The trial court sentenced him to consecutive terms of 35 years for the murder and 10 years for the attempted murder. After unsuccessfully challenging his conviction in state court, Petitioner filed this petition for a writ of habeas corpus. He alleges that errors made by trial and appellate counsel deprived him of his Sixth Amendment right to effective assistance of counsel.
Respondent moved to dismiss his petition as untimely under 28 U.S.C. § 2244. Petitioner does not dispute that he filed his habeas petition three months past the one-year deadline, but asserts that the petition is subject to statutory tolling under 28 U.S.C. § 2244(d)(1)(B) or, in the alternative, under the doctrine of equitable tolling. The court appointed counsel for Petitioner on the tolling issue and conducted an evidentiary hearing to explore the merits of the tolling claims. As explained below, the evidence shows that a prison law clerk gave Petitioner misleading and inaccurate information about the time limits for his habeas petition, and that Petitioner's efforts to gain access to the prison library to perform his own research were stymied by repeated prison lockdowns. Whether these circumstances constitute a "state-created" impediment to timely filing present a close question,
but the court finds that Petitioner has indeed established that rare set of facts that compels the tolling of his habeas limitations period. The court has also considered the merits of the petition, however. For the reasons explained here, although Petitioner has won a procedural victory, the court concludes that Petitioner's substantive arguments in support of habeas relief are unexhausted or lack merit. Accordingly, the petition is denied.
I. Petitioner's Trial and Subsequent Review of His Conviction*fn1 On the evening of January 8, 2000, Dauntrez Snowden went out with friends Nicholas
Mobley, William Peppers, and Delvert Guy to celebrate Peppers' departure for college the next day. (Rule 23 Order, People v. Vidaurri, No. 1-05-2051 (Ill. App. Ct. 1st Dist. Nov. 6, 2006) (hereinafter "Post-Conviction Order"), Ex. B to Resp't's Mot. to Dismiss, at 2.) Petitioner was also out that night; he was driving a van with passengers Juan "Pelon" Ocon, Alvaro "Porky" Vera, Benjamin "Bam Bam" Pinero, Rocky Salazar, Francisco Rodriguez, William Solis, and David Niera. (Pet. for Leave to Appeal, No. 02-3718 (hereinafter "Direct Review PLA"), Ex. C to Resp't's Mot. to Dismiss, at 6.) Petitioner and his passengers were members of the Satan Disciples street gang, except for Ocon, who belonged to the Latin Jivers gang. (Id.) Petitioner also carried a loaded .9 millimeter handgun which, at some point, he gave to Ocon. (Post-Conviction Order at 2, 14.)
Shortly after midnight on January 9, 2000, Petitioner pulled the van up alongside the car Snowden was driving with passengers Mobley, Peppers, and Guy. (Id.) Two of Petitioner's friends flashed gang signs; Snowden and company did not respond, but instead sped away out of fear that they might be robbed. (Id. at 2-3.) At Ocon's instruction, Petitioner gave chase. (Id. at 15.) When he pulled even with Snowden's car, Ocon and another van passenger, Alvaro Vera, fired shots inside. (Id. at 3.) Mobley suffered two gunshot wounds to his lower extremities, but he recovered; Snowden suffered a fatal shot to the abdomen. (Id.)
Chicago police arrested Petitioner for his role in the shooting on January 13, 2000. (Id.) After being advised of his Miranda rights, Petitioner agreed to speak with the detectives and ultimately agreed to make a videotaped statement in which he described his involvement in the shooting. (Id.) The video shows Petitioner calmly sitting at a table, waiving his Miranda rights, and answering questions. (Id. at 13.) In the recorded statement, Petitioner admitted that he had a loaded .9 millimeter gun on the night of the shooting, that he gave it to Ocon, and that he (Petitioner) abandoned it in the van after the shooting. (Id. at 14.) At the end of the interview, Petitioner volunteered an additional statement-that he wanted the judge to know he was willing to cooperate with the investigation. (Id.) Trial counsel later moved to quash the arrest and suppress all subsequent evidence, including the confession, by arguing that Petitioner lived at the address where he was arrested, and therefore, the police's warrantless entry and arrest was improper. (Id.) The court denied the motion to suppress on the ground that the police had obtained valid third-party consent for the entry from Ivan Beltran, who also lived at the home where the police arrested Petitioner. (Petition for Writ of Habeas Corpus (hereinafter "Habeas Pet.") at 7-8.)
At Petitioner's July 2002 trial, the State introduced a .9 millimeter handgun in evidence during the testimony of the detective assigned to the case, John Climack. (Post-Conviction Order at 4.) Detective Climack explained that an individual named Onyx Santana had learned the details of the shooting from one of the other van passengers, and that either he or his girlfriend told the detective where to recover the gun.*fn2 (Id. at 14.) The State adduced no other evidence connecting the .9 millimeter gun to the shooting. (Id.) Initially, Petitioner's trial counsel made no objection. (Id. at 4.) The following day, however, just before the jury instruction conference, counsel stated that "through an oversight," she had failed to object to the gun and that she now challenged its admission as improper and lacking foundation. (Id. at 4, 14-15.) The trial court overruled the objection as tardy and concluded that the jury was entitled to decide what weight to give the gun. (Id. at 4, 15.) In further support of its case, the State called van passengers Niera and Solis to testify as to Petitioner's role in the shooting, and surviving victims Mobley, Peppers, and Guy to corroborate that testimony. (Post-Conviction Pet., Ex. E to Resp't's Mot. to Dismiss, at 24; Post-Conviction Order at 15-16.) The State also played Petitioner's videotaped statement for the jurors. (Post-Conviction Order at 14.)
The State then rested its case, and the defense declined to call any witnesses. The trial court reminded Petitioner of his right to testify and asked whether he was waiving that right; Petitioner stated that he was. (Id. at 4.) The jury found Petitioner guilty of the first-degree murder of Snowden and the attempted first-degree murder of Mobley. (Id. at 4-5.) The trial court sentenced Petitioner to consecutive terms of thirty-five and ten years, respectively.*fn3 (Id. at 5.)
On direct appeal, Petitioner argued only that the trial court erred in failing to ask potential jurors whether they harbored bias against gangs or gang members, and that trial counsel was ineffective for failing to do the same. (Rule 23 Order, People v. Vidaurri, No. 1-02-3718 (Ill. App. Ct. 1st Dist. Apr. 26, 2004) (hereinafter "Direct Review Order"), Ex. A to Resp't's Mot. to Dismiss, at 1.) The appellate court declined to find that a trial court has a duty to question potential jurors, sua sponte, about gang bias. (Id. at 5.) The court found, further, that trial counsel's failure to make the same inquiry was a matter of trial strategy that "fell within the broad range of defense tactics that will not support a claim of ineffective assistance of counsel." (Id. at 8.) Even if it did not, reasoned the court, Petitioner could not show he suffered prejudice, given the substantial evidence of his guilt. (Id.) Petitioner filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, but it was denied. People v. Vidaurri, 211 Ill. 2d 611, 823 N.E.2d 977 (2004).
On March 3, 2005, Petitioner filed a pro se post-conviction petition asserting ineffective assistance of trial and appellate counsel ,and arguing that advances in developmental science evidence compelled a reduction in his sentence.*fn4 (Pet. for Post-Conviction Relief, Ex. E to Resp't's Mot. to Dismiss.) He claimed ineffective assistance of his trial counsel on the basis that she failed to (1) challenge the video statement he claims was coerced; (2) investigate the third-party consent to search that led to his arrest; (3) challenge his probable cause hearing; (4) timely object to the admission of the .9 millimeter gun; (5) interview other witnesses in advance of trial; (6) allow him to testify in his own defense; and (7) object to testimony he alleges was perjured and to alleged misstatements of fact in the State's closing. (Id. at 2-28.) Petitioner also claimed that his appellate counsel provided ineffective assistance because she (1) did not make all the aforementioned arguments for trial counsel's ineffectiveness; (2) failed to challenge the sufficiency of the evidence; and (3) exhibited personal bias against Petitioner by suggesting he take responsibility for his actions. (Id. at 28-32.) Specifically, Petitioner recounted a phone conversation with appellate counsel in which she rejected Petitioner's suggested claims of trial counsel's ineffectiveness and told Petitioner, "'You were a gang[ ]member doing a drive[-]by shooting. I would hope you [would] take your responsibility.'" (Id. at 29.)
The trial court summarily dismissed the post-conviction petition as "frivolous and patently without merit." (Post-Conviction Order at 5.) On appellate review, the court addressed only three of Petitioner's arguments: that trial counsel was ineffective for (1) inducing Petitioner's waiver of his right to testify; (2) failing to move to suppress the video statement; and (3) failing to timely object to the admission of the .9 millimeter gun. (Id. at 1-2.) As to the inducement of waiver argument, the state court did not find credible Petitioner's assertion that trial counsel told him he was "crazy" for wanting to testify, that she would have him "thrown out" of the courtroom if he tried to do so, and that she promised he would be acquitted of at least one charge if he proceeded without testifying. (Habeas Pet. at 11; Post-Conviction Order at 7-8.) The court also rejected the notion that the trial judge was obliged to ask him whether any threats or promises induced his decision to waive his right to testify and, instead, found that the record demonstrated he voluntarily waived the right. (Id. at 8.)
The court found, further, that trial counsel's decision to challenge
Petitioner's arrest and the subsequent evidence, as opposed to simply
moving to suppress the video statement, was acceptable defense
strategy and did not support a claim for ineffective assistance of
counsel.*fn5 (Id. at 12-13.) Nor did Petitioner's
video statement exhibit any signs that he was coerced, added the
court. (Id. at 13.) Finally, the court rejected the argument that
trial counsel was ineffective in untimely objecting to admission of
the gun and noted that, given the overwhelming evidence
him, Petitioner could not show resulting prejudice.*fn6
(Id. at 15-16.) Petitioner filed another PLA with the
Illinois Supreme Court, but it too was denied on May 31, 2007. People
v. Vidaurri, 224 Ill. 2d 591, 871 N.E.2d 61 (2007).
II. Petitioner's Habeas Filing Date and Access to the Prison Law Library
As noted, this action under 28 U.S.C. § 2254, filed on June 19, 2008 (Resp't's Mot. to Dismiss at 3 n.1), is untimely on its face. Petitioner argues, however, that a prison law clerk's miscalculation of the filing deadline for his habeas petition, combined with Petitioner's subsequent inability to access the prison law library, compels either statutory or equitable tolling of the one-year limitations period for habeas petitions. Petitioner first sought the assistance of law clerk and fellow inmate Albert Kirkman when, in early June 2007, he received a letter from the Illinois Supreme Court informing him that his post-conviction PLA had been denied. (Evid. Hr'g Tr. 176-77, Apr. 1-2, 2010.) Petitioner spoke with Kirkman in Cell House B and showed him the letter, which had two dates on it; at the top, the letter was dated May 31, 2007, but at the bottom it listed July 6, 2007, as the date when "[t]he mandate of [the Illinois Supreme Court] will issue to the Appellate Court." (Id.; May 31, 2007 Letter, Ex. 3 to Pet'r's Proposed Ex. List.) Petitioner understood the letter to communicate that state court review of his conviction had ended and that a federal habeas petition was the only remaining means to challenge his imprisonment. (Hr'g Tr. at 173.) But Petitioner did not know how much time he had to file his habeas petition; for this, he sought the assistance of Kirkman. (Id. at 174.)
The parties dispute the exact nature of Kirkman's prison employment. Petitioner contends that Kirkman is an inmate law clerk whose advice may be attributed to prison officials. (Pet'r's Br. at 3; Hr'g Tr. at 176.) Respondent, by contrast, insists that Kirkman is nothing more than a "legal box man" whose sole duty is to retrieve from storage the boxes in which prisoners store their legal materials. (Resp't's Proposed Findings of Fact and Conclusions of Law (hereinafter "Resp't's Br.")
¶ 31.) Kirkman himself testified that his title was "legal box man." (Hr'g Tr. at 239.)
Yet Kirkman's own testimony also belies the notion that he did nothing more than ferry boxes back and forth. He stated that often, while in the library, he would stand behind a counter with the other law clerks. (Id. at 248.) There, he would distribute habeas packets to inmates who requested them. (Id. at 249.) He acknowledged that other inmates knew he worked in the library and that he had extensive knowledge about post-conviction appeals, so other inmates "would approach [him] all the time" to seek his legal advice-even in the cafeteria and the shower. (Id. at 259.) Moreover, the law library associate, Phyllis Baker, identified Kirkman as a law clerk and noted that, at some point, he received a paralegal certificate. (Baker Dep., Ex. 11 to Resp't's Proposed Exs., at 48:17-49:3.) Karen Rabideau, Petitioner's correctional counselor, also referred to Kirkman as a law clerk. (Hr'g Tr. at 59.) Rabideau, who previously served as a prison placement officer and hired inmates for the law library, testified that inmates working in the library either serve as law clerks or janitors and that, sometimes, the law clerks retrieve boxes for other inmates. (Id. at 60.) Paralegal assistant Crystal Mason described Kirkman as a "box clerk," but she added that she did not know his "actual title." (Mason Dep., Ex. 12 to Resp't's Proposed Exs., at 31:19-21). Mason and Baker worked together in the law library, supervising the inmate employees; in the court's view, if they cannot agree on Kirkman's title and duties, surely the inmates themselves were susceptible to the same confusion. Considered collectively, the evidence supports a conclusion that, even if Kirkman was a "legal box man" by title, the law library staff delegated at least some law clerk responsibilities to him.
Petitioner testified that when he first approached Kirkman to discuss his habeas deadline in early June 2007 in Cell House B, Kirkman told him he had one year from July 6, 2007, to file his habeas petition. (Hr'g Tr. at 177.) Kirkman's recollection of the interaction was more muddled. He had no memory of discussing a habeas petition with Petitioner, though he later admitted to having many legal discussions with Petitioner and to reviewing Petitioner's PLA denial letter. (Id. at 240, 242, 266.) Kirkman gave conflicting accounts of how he handles inmates' legal questions; at first, he maintained that he would not answer an inmate's question pertaining to the calculation of a deadline. (Id. at 272.) But later he stated that, in reviewing such a letter, he "usually" tells inmates to calculate the one-year deadline by the earlier of the two dates.*fn7 (Id. at 242.) Kirkman testified, further, that in the summer of 2007, had an inmate shown him a PLA denial letter like Petitioner's, he would have told the inmate he had one year from the date of the letter to file a habeas petition. (Id. at 273, 274-75.) At that time, Kirkman did not understand that the days between the end of a prisoner's direct appeal and the start of his post-conviction review are to be counted against the one-year habeas limitations period. (Id. at 274); see also Morales v. Boatwright, 580 F.3d 653, 656 (7th Cir. 2009) (explaining that the one-year habeas limitations period begins to run when a prisoner's conviction is final, but excludes days during which petitions for state court relief are pending) (citing 28 U.S.C. § 2244(d)(2)).
Petitioner also discussed his habeas deadline with Kirkman in the prison law library on June 12, 2007. (Hr'g Tr. at 222.) Petitioner testified that on that date, he approached Kirkman, who was sitting behind the library counter, and again showed him the PLA denial letter and inquired about his habeas deadline. (Id. at 179.) Kirkman "reassured" Petitioner that he had one year to file and gave him a federal habeas packet for filing in the Northern District of Illinois. (Id. at 179-81.) The packet contained a blank petition and general instructions regarding the habeas process. (Blank Habeas Pet. and Instructions for Filing in the U.S. District Court for the Northern District of Illinois (hereinafter "Northern Dist. Packet"), Ex. 1 to Resp't's Proposed Exs.) The prison also maintained packets for the Central and Southern Districts of Illinois. (Blank Habeas Pet. and Instructions for Filing in the U.S. District Court for the Central District of Illinois ...