The opinion of the court was delivered by: Enter Order: United States District Judge
MEMORANDUM OPINION AND ORDER
Michael Simmons ("Simmons") was convicted of murder in the 2001 shooting death of Kurt Landrum, who was killed during a robbery at his home. On May 2, 2011, Simmons, who is serving a 50-year sentence for murder, filed a Petition for Writ of Habeas Corpus. Respondent*fn1 initially filed a motion to dismiss the petition as time-barred, but, realizing this presented a difficult question of law, subsequently moved to answer the petition to address its merits as well as the timeliness of the petition. For the reasons set forth below, Respondent's motion to dismiss, now incorporated as part of its Rule 5 answer, is denied. Additionally, I appoint counsel to represent Simmons on his claim of ineffective assistance related to defense counsel's failure to interview certain potential defense witnesses.
As this opinion does not address the merits of Simmons' claims, the facts underlying his conviction are omitted. Respondent moves to dismiss on the basis that Simmons' petition is untimely under 28 U.S.C. § 2244(d)(1)(A), which provides for a one-year statute of limitations for the filing of habeas petitions, with the period running from the date on which the judgment became final because of the conclusion of direct review or the expiration of time for direct review.*fn2 The Illinois Supreme Court denied Simmons' petition for leave to appeal his conviction on Sept. 26, 2006. As such, his conviction became final on Dec. 26, 2006, when the time to file a petition for review with the U.S. Supreme Court expired, and his habeas petition was due on Dec. 26, 2007. Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002).
Simmons did not file this petition for habeas relief until May 2, 2011, which would make it untimely absent a basis for tolling.*fn3
Simmons, however, argues that the limitations period was tolled because his "properly filed" post-conviction petition was pending in the state courts. See 28 U.S.C. § 2244(d)(2)("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."). A state post-conviction petition filed after the limitations period has run does not reset the time for filing a habeas petition. Escamilla v. Jungwirth, 426 F.3d 868, 870 (7th Cir. 2005).
The issue is when Simmons' state--court post--conviction petition was filed. The trial court, in its order denying post-conviction relief, stated that it was filed on Nov. 3, 2008. This is the date reflected by the state court's file stamp.
Simmons, however, contends that he first mailed his state court post--conviction petition on June 22, 2007, and that it was pending from that date until the Illinois Supreme Court denied his motion for reconsideration of the denial of his petition for leave to appeal on Dec. 22, 2010. If this is correct, then Simmons' petition for habeas relief is timely.
Simmons has submitted three "Offender Authorization for Payment" forms from the Illinois Department of Corrections, reflecting that he was to be charged for postage and envelopes for the mailing of four copies of his post--conviction petition. The forms are dated June 22, 2007. Those amounts were withdrawn from his inmate trust fund at Menard Correctional Center on June 29, 2007. (Dkt. No. 28, Exs. A-C.)
Simmons also has submitted copies of letters he sent to the Cook County Circuit Clerk checking on the status of his post-conviction petition, one dated Nov. 11, 2007, and the next dated Aug. 26, 2008. (Dkt. No. 28, Ex. E.) The certificate of service on Simmons' post--conviction petition is dated June 22, 2007, and Simmons affirmed that the information in the certificate was correct under penalty of perjury. (Dkt. No. 14, Ex A., at C 28.) The certificate was not notarized, however, because the law library at Menard Correctional Center did not notarize documents at that time. Simmons has included two signed statement from other inmates verifying this policy (Dkt. No 28, Exs. F-G), and it is reflected in the case law as well. See, e.g., People v. Henderson, 961 N.E.2d 407, 417--18 (Ill. App. Ct. 2011).
It is clear that Simmons attempted to file his post-conviction petition on June 22, 2007, using the standard procedures available to an inmate at Menard Correctional Center. Respondent, contends, however, that I should apply Illinois law to find that his petition was not filed until Nov. 3, 2008, and therefore his habeas petition is untimely.
At issue is whether and how the "prison mailbox" rule should apply to Simmons' state post-conviction filing. Federal courts apply the rule to provide that an inmate's pleading will be deemed timely if it is given to prison officials for mailing within the limitations period. Ray v. Schwochert, 788 F. Supp. 2d 830, 834 (E.D. Wis. 2011)(citing Bertrand, 173 F.3d at 502). Federal courts do not require that a proof of service be notarized in order to take advantage of the prison mailbox rule. See United States v. Wellman, 830 F.2d 1453, 1467 (7th Cir. 1987)(citing 28 U.S.C. § 1746 and noting that under federal law, a declaration under penalty of perjury generally may be used in lieu of an oath before a notary). Illinois courts also apply the mailbox rule to prisoner filings, but there is some authority for the proposition that an inmate who wants to take advantage of the rule must provide an affidavit swearing to the date the papers were deposited in the prison mail system. People v. Tlatenchi, 909 N.E.2d 198, 207--09 (Ill. App. Ct. 2009).
Congress did not provide guidance as to the meaning of "a properly filed" application for the purposes of tolling under § 2244(d)(2). Adams v. LeMaster, 223 F.3d 1177, 1181 (10th Cir. 2000). There is a split in authority as to whether the federal mailbox rule, or state law, applies to state filings for the purposes of computing the statute of limitations for a federal habeas filing. The Seventh Circuit Court of Appeals has not ruled on this issue. See Schwochert, 788 F. Supp. 2d at 834. The Fifth, Six, Tenth, and Eleventh Circuits have held that state law must be used to determine the filing dates for state court post--conviction petitions. See Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003); Adams, 223 F.3d at 1181; Webster v. Moore, 199 F.3d 1256, 1258--59 (11th Cir. 2000); Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). The rationale behind this finding is based on the structure of AEDPA, which affords great deference to state court judgments, and generally "evinces a concern for federal-state comity." Vasquez v. Kingston, 422 F. Supp. 2d 1006, 1008 (E.D. Wis. 2006) (citing Webster, 199 F.3d at 1259). In order to preserve that comity, these courts have held, the definition of "properly filed" in § 2244(d)(2) must mean properly filed according to state law, rather than federal law. Vasquez, 422 F. Supp. 2d at 1009.
By contrast, the Second and Ninth Circuits have held that the federal mailbox rule applies to state post--conviction filings. See Fernandez v. Artuz, 402 F.3d 111, 114--16 (2d Cir. 2005); ...