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United States of America Ex Rel. v. Acting Warden Glen Austin

May 3, 2012

UNITED STATES OF AMERICA EX REL. RONALD MCCLAIN #K-80999, PETITIONER,
v.
ACTING WARDEN GLEN AUSTIN, RESPONDENT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

STATEMENT AS TO CERTIFICATE OF APPEALABILITY

This Court's April 2, 2012 memorandum opinion and order ("Opinion") dismissed the 28 U.S.C. §2254*fn1 Petition for Writ of Habeas Corpus ("Petition") that had been filed by pro se petitioner Ronald McClain ("McClain") to attack his January 31, 2003 state court conviction on a charge of aggravated arson, on which he is serving a 12 year sentence. That dismissal, based on the preliminary review called for by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, was predicated on the Petition's patent untimeliness.

Now McClain seeks to appeal that dismissal order and has moved for the issuance of a certificate of appealability ("COA"). This statement explains why in this Court's view such a certificate should not issue.

As the Opinion reflects, the untimeliness of the Petition resulted from the Illinois courts' unequivocal denial of McClain's effort to file a second petition for post-conviction relief in the state court system. Because that denial created more than a one-year gap during which no such post-conviction proceeding was "pending" to toll the one-year limitations clock established by Section 2244(d)(1), the current federal Petition was plainly out of time (see Martinez v. Jones, 556 F.3d 637, 639 (7th Cir. 2009)(per curiam)).

Because Section 2244(d)(2) is unambiguous in that respect, this Court sees no predicate for equitable tolling, and it is accordingly of the view that no certificate of appealability should issue. McClain is of course ...


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