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United States of America Ex Rel v. Joseph Yurkovich

September 19, 2012

UNITED STATES OF AMERICA EX REL CUAHUTEMOC HERNANDEZ, PETITIONER,
v.
JOSEPH YURKOVICH, WARDEN, CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer Hill

MEMORANDUM OPINION AND ORDER

Cuahutemoc Hernandez ("Petitioner") was convicted of first-degree murder and attempted first-degree murder in state court in 2000. On September 26, 2011, he filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moved to dismiss the petition as untimely under 28 U.S.C. § 2244(d)(1). Petitioner has filed a motion seeking an evidentiary hearing concerning facts that, he alleges, support equitable tolling of the statute of limitations. For the reasons explained here, the court grants Respondent's motion to dismiss and denies Petitioner's motion for an evidentiary hearing as moot.

FACTUAL BACKGROUND

On November 29, 2000, a Cook County jury convicted Petitioner of first-degree murder and attempted first-degree murder based on the testimony of the attempted murder victim and DNA evidence found on the driver's side door of the vehicle in which the victims were shot. See People v. Hernandez, 332 Ill. App. 3d 343, 344-47, 773 N.E.2d 170-73 (1st Dist. 2002). Judge James Schreier sentenced Petitioner to concurrent prison terms of forty-four years for murder and six years for attempted murder. Id. at 344, 171. On June 28, 2002, the First District Appellate Court affirmed the conviction on direct appeal. Id. at 352, 177. Some three months later, on October 2, 2002, the Illinois Supreme Court denied Petitioner's petition for leave to appeal ("PLA").

(Resp't's Mot. to Dismiss [18] ¶ 3.) Petitioner did not seek a writ of certiorari in the United States Supreme Court. (Id.)

On October 28, 2002, shortly after the denial of his PLA, Petitioner enlisted an organization that called itself University Research Services, LLC ("URS") to assist with his post-conviction proceedings in state court.*fn1 (Pet'r's Resp. [31] at 8.) Throughout 2002 and 2003, Petitioner corresponded with URS on numerous occasions and sent the organization documents related to possible post-conviction remedies.*fn2 (See, e.g., Letters from URS to Pet'r, Ex. 5 to Resp.) On numerous occasions, URS responded to Petitioner, confirming receipt of materials Petitioner had sent. (Id.) Apparently having difficulties filing his post-conviction petition, Petitioner sent a letter to Judge Schreier on March 26, 2003, requesting an extension. (Apr. 22, 2003 Letter from Cook Cty. Public Defender to Pet'r, Ex. 1 to Resp. to Resp't's Reply [45], at 1.) At Judge Schreier's request, the Cook County Public Defender wrote to Petitioner and informed him that Judge Schreier would allow him "a reasonable extension of time." (Id.)

As it turns out, URS was not a legitimate provider of legal services. On April 29, 2004, the Illinois Office of the Attorney General ("IAG") filed a complaint against John Wilson, the owner of URS, alleging that Wilson had defrauded inmates by providing legal research services without a license to practice law, and by "implying that his company was approved by the Better Business Bureau, and affiliated with various University law libraries and well-known legal databases." (May 6, 2004 Letter from IAG to Pet'r, part of Ex. 6 to Resp, at 1.) Upon initiation of the suit, Wilson "voluntarily agreed to discontinue business in Illinois," pending the suit's resolution. (May 6, 2004 Letter from IAG to Pet'r at 1.)

The following month, on May 21, 2004, the IAG sent Petitioner another letter in which it suggested that he "arrange for other legal counsel or contact the State Appellate Defender's Office for assistance with [his] case." (May 21, 2004 Letter from IAG to Pet'r, part of Ex. 6 to Resp., at 1.) It appears that Petitioner took that advice: on October 28, 2004, the State Appellate Defender sent him what appears to be a response to an inquiry concerning the filing of a post-conviction petition. The letter explained that the Cook County Circuit Court Clerk's records showed that no post-conviction petition had been filed on his behalf. (Oct. 28, 2004 Letter from State Appellate Defender to Pet'r, Ex. 2 to Resp. to Resp't's Reply, at 1.) Shortly after receiving that letter, Petitioner obtained new counsel to assist with his post-conviction proceedings. (Resp. to Resp't's Reply at 6) (stating that Petitioner retained new counsel "by" November 18, 2004). The IAG ultimately sent Petitioner at least six letters between April 2004 and July 2005 with updates on its investigation of Wilson. (See Letters from IAG to Pet'r.)

On April 3, 2006, Petitioner filed his initial post-conviction petition pursuant to 725 ILCS 5/122-1, et seq. (Mot. to Dismiss ¶ 4; Post-Conviction Pet., Ex. C to Resp't's Exs. in Supp. of Mot. to Dismiss [19].) At a hearing on November 14, 2007, the court dismissed the petition. (Mot. to Dismiss ¶ 4.)The state argued that the petition was untimely, but the court ultimately declined to address the question of timeliness, and dismissed the petition on the merits. (Hr'g Tr., Ex. E to Resp't's Exs., 25:20-27:15.) In its decision, the court concluded that the trial court did not violate Petitioner's right to a speedy trial when it granted the state an extension of time in order to locate a key witness. (Hr'g Tr. 26:4-19.) The court also rejected Petitioner's claim that his trial counsel was ineffective, noting that the evidence against Petitioner was convincing and that, even if counsel had provided perfect representation, "the result probably would not be different."*fn3

(Hr'g Tr. 26:20-27:12.) Petitioner appealed, and on February 16, 2010, the Illinois Appellate Court affirmed the trial court's judgment. (Mot. to Dismiss ¶ 5.) Petitioner filed a PLA, which the Illinois Supreme Court denied on September 29, 2010. (Mot. to Dismiss ¶ 6.) Petitioner then filed a motion for leave to seek reconsideration, but the Illinois Supreme Court denied that motion on December 6, 2010. (Mot. to Dismiss ¶ 6.)

Finally, on September 26, 2011, Petitioner filed the instant petition for a writ of habeas corpus. (Mot. to Dismiss ¶ 7.) Respondent moved to dismiss the petition as time-barred. (Mot. to Dismiss ¶ 9.) In his response, Petitioner argued that the doctrine of equitable tolling should be applied to his claim. (Resp. [31] at 5-6.) He later filed a motion for an evidentiary hearing on the matter. (Mot. for Evid. Hr'g [40].)

DISCUSSION*fn4

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), prisoners generally have one year from the conclusion of direct review of their conviction in which to file a habeas petition. 28 U.S.C. § 2244(d). Barring other exceptions that are inapplicable here, the one-year statute of limitations begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."

28 U.S.C. ยง 2244(d)(1)(A). In this case, Petitioner's judgment became final in state court when his opportunity to seek direct review from the United States Supreme Court expired (90 days after the Illinois Supreme Court denied his PLA) or, in other words, on December 31, 2002. Accordingly, Petitioner had until December 31, 2003, to submit his habeas petition, but did not do so until September 26, ...


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