The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
This matter comes before the Court on Magistrate Judge Wilkerson's report and recommendation ("the Report") recommending that the Court grant respondent's motion to dismiss and deny Scott's pending motions as moot. Scott timely filed objections to the Report (Doc. 42). Based on the following, the Court ADOPTS the Report in its entirety.
On April 1, 1997, Scott was found guilty of two counts of first degree murder and was sentenced to a term of life in prison (Doc. 1 pp. 3-4). After filing petitions for post-conviction relief, relief from judgment, and leave to appeal, all of which were denied, Scott filed a pro se petition for writ of habeas corpus on January 31, 2011 (Doc. 1). Respondent filed a motion to dismiss on October 21, 2011, arguing that Scott's petition was untimely since it was not filed within the one-year period mandated by 28 U.S.C. § 2244(d), and thus it should be dismissed (Doc. 29). On December 22, 2011, Scott filed a response in opposition to the motion (Doc. 34). In his response, Scott contends his petition was timely since (1) the one-year period does not begin until ninety days after he could have (but did not) file a petition for writ of certiorari in the United States Supreme Court, and (2) the "prison mailbox" rule rendered his petition "filed" on the date he placed it in the prison mail instead of on the date the Court received it. After filing his response, Scott also filed a motion for leave to supplement critical points to petitioner's motion in opposition to respondent's motion to dismiss (Doc. 35), a renewed motion to appoint counsel (Doc. 36), and a motion for leave to invoke the process of discovery (Doc. 38).
Judge Wilkerson then issued the Report finding that Scott's petition was, in fact, untimely (Doc. 39). In the Report, Judge Wilkerson concludes that (1) Scott's petition, which was received in the district court clerk's office on January 31, 2011, was twenty-eight days too late, (2) Scott may not count the ninety days in which he could have filed a petition for writ of certiorari, (3) the "prison mailbox" rule does not render Scott's petition timely since it would still be six days too late under that rule, and (4) Scott is not entitled to equitable tolling. Judge Wilkerson therefore recommends that respondent's motion to dismiss be granted. Further, the Report recommends that Scott's additional motions be denied as moot since his petition for habeas corpus was untimely.
Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.
On February 27, 1995, Scott and two accomplices "gunned down" Terrence Mumphrey and Bobby Wiley in East St. Louis, Illinois (Doc. 29, p. 1). A St. Clair County jury found Scott guilty of two counts of first degree murder on April 1, 1997, and the trial court sentenced him to a term of natural life in prison (Doc. 1, p. 3-4). The Appellate Court of Illinois, Fifth District, affirmed the conviction on March 19, 1999 (Doc. 30, Exh. A). Scott then filed an affidavit of intent to file a petition for leave to appeal ("PLA") to the Illinois Supreme Court on April 12, 1999 (Doc. 30, Exh. C). Yet Scott never filed a PLA. (Doc. 1, p.4; Doc. 34 p. 3).
Scott filed a petition for post-conviction relief in the trial court pursuant to 725 ILCS 5/122-1 on September 15, 1999. This petition was denied on January 23, 2007 (Doc. 30, Exh. E). On July 20, 2007, Scott filed a petition for relief from judgment in the trial court, challenging the trial court's denial of post-conviction relief (Doc. 30, Exh. F). This petition was also denied. Scott then filed notices of appeal from both denials, and on March 8, 2010, the Appellate Court affirmed the denial of both petitions (Doc. 30, Exh. B). The Illinois Supreme Court denied Scott's subsequent petition for leave to appeal on May 26, 2010 (Doc. 30, Exh. G).
On January 31, 2011, Scott filed the pending pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
An inmate in state custody may make an application for writ of habeas corpus challenging his state conviction on the ground that he is in custody in violation of the Constitution, laws, or treatises of the United States. 28 U.S.C. § 2254. However, habeas relief is subject to certain requirements, including strict time limits. 28 U.S.C. § 2244(d) imposes these time limits and reads as follows:
(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 ...