The opinion of the court was delivered by: Richard Mills, U.S. District Judge:
Wednesday, 05 December, 2012 02:42:32 PM Clerk, U.S. District Court, ILCD
Summary judgment allowed. Petition denied.
Certificate of appealability declined. Case closed.
Late on the evening of April 15, 2007, in Aurora, Illinois, Petitioner David A. Williams shot a man in the legs and testicles with a nine-millimeter pistol. The authorities were notified of the shooting, and officers of the Aurora Police Department responded to the "shots fired" call.
At 10:27 p.m., one of the responding officers saw a vehicle driving slowly away from the area of the shooting with its lights off. He pulled the vehicle over, and noticed the following: the gray vehicle was driven by a black male (the Petitioner), the front seat passenger was a female, and there was a male passenger in the backseat. The officer quickly released the vehicle to continue on to the "shots fired" call.
Shortly thereafter, the officer heard on his radio that the suspect vehicle was silver, with a black male driver and a female passenger. The officer realized that the description matched the vehicle he had just stopped. He looked in his rear-view mirror, and saw the vehicle driving away at a high rate of speed, again, with its lights off. The officer made a U-turn, and lost visual contact.
He was able to find the vehicle again, and he initiated a second traffic stop. Five other officers arrived at the scene, and the occupants were held at gunpoint, ordered to exit the vehicle, and arrested.
After the Petitioner was placed in custody, the officers searched the vehicle. An officer found a pistol on the floorboard between the driver and passenger seats.
The Petitioner was transported to the police station for questioning, where he gave a videotaped confession. He was charged with a number of offenses in the Circuit Court of Kane County, Illinois.
On June 19, 2008, the Petitioner filed a motion to suppress, challenging his arrest and the search of the vehicle. A hearing on the suppression motion was scheduled for September 25, 2008.
On that date, the Petitioner pled guilty in the Circuit Court of Kane County to aggravated battery with a firearm. The prosecutor nolle prossed the attempted murder charge. At the same hearing, the Petitioner was sentenced to an 8-year term of imprisonment.
The Petitioner was given his appeal rights by the trial judge at the time of sentencing. Following the sentencing, the Petitioner filed a motion to reduce sentence, which was denied on December 11, 2008.
The Petitioner never appealed his conviction or sentence.
The Petitioner signed and mailed a state post-conviction petition on January 23, 2009. It appears that the document may have been erroneously sent first to the Appellate Court of Illinois, Second District, and was then sent on to the Circuit Court of Kane County. See State Post-Conviction Petition [d/e 3], page 6 (crossed-out Second District file stamp at the top of petition). It was filed in the Circuit Court of Kane County on February 23, 2009.*fn1
The Circuit Court of Kane County denied the post-conviction petition on April 27, 2009. The Petitioner did not appeal this final order.
The Petitioner filed a motion for reconsideration on June 8, 2009. In denying the motion on June 18, 2009, the Circuit Court noted that the motion was untimely and that the court lacked jurisdiction to consider it.
On July 28, 2010, the Petitioner filed a motion for leave to file an original state habeas corpus petition in the Supreme Court of Illinois. The motion for leave to file was denied on September 17, 2010.
The Petitioner executed his Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 [d/e 1] on February 8, 2011, and it was received by the Clerk of Court on February 22, 2011. The Petitioner raised the following grounds in his Petition: illegal search and seizure; "Due Process (state habeas corpus)"; "Due Process & Equal Protection"; and ineffective assistance of counsel.
The Petitioner supplemented his Petition [d/e 1] with a Brief [d/e 2] which discussed the same issues listed above, as well as the following claims: that he had no attorney for a period of 52 days; that the trial judge failed to advise him of his appellate rights under Illinois Supreme Court Rule 604(d); and that he was deprived of his rights to a preliminary hearing and a speedy trial.
The § 2254 form the Petitioner used states the following, "TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) ...