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United States of America Ex Rel. Kevin Betts v. Salvador Godinez

December 4, 2012

UNITED STATES OF AMERICA EX REL. KEVIN BETTS, PETITIONER,
v.
SALVADOR GODINEZ, RESPONDENT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Respondent's motion to dismiss Petitioner Kevin Betts' (Betts) pro se petition for writ of habeas corpus (Habeas Petition) brought pursuant to 28 U.S.C. § 2254. For the reasons stated below, the court grants Respondent's motion to dismiss.

BACKGROUND

In April 1993, Betts was convicted in a jury trial in state court of first degree murder and aggravated battery with a firearm, for shooting one victim and wounding another. Betts was subsequently sentenced to concurrent terms of sixty-five years and twenty-five years of imprisonment. Betts appealed the convictions, and on August 1, 1996, the Illinois Appellate Court affirmed his convictions. Betts did not appeal his convictions to the Illinois Supreme Court. On November 10, 1999, Betts filed a pleading in state court where he alleged that he previously mailed a post-conviction petition to the state circuit court on February 28, 1997. The circuit court construed Betts' pleading as a post-conviction petition (First Post-Conviction Petition) and dismissed it as untimely because Betts failed to offer any conclusive proof that he actually mailed a petition on February 28, 1997. Betts appealed the dismissal of the First Post-Conviction Petition, arguing that the dismissal was not made within ninety days of the date on which the First Post-Conviction Petition was docketed in violation of state court rules. The State confessed error, and the appellate court reversed and remanded for further proceedings. On remand, the circuit court held an evidentiary hearing and then denied the First Post-Conviction Petition. On April 12, 2011, the Illinois Appellate Court affirmed the lower court's ruling. Betts subsequently filed a petition for leave to appeal (PLA), and on September 28, 2011, the Illinois Supreme Court denied the PLA.

On October 11, 2011, Betts filed a petition for a writ of habeas corpus (First Habeas Petition) in federal court in case number 11 C 7197. Betts subsequently voluntarily moved to withdraw the First Habeas Petition, and on January 12, 2012, this court granted Betts' motion to withdraw and dismissed the action without prejudice. On January 25, 2012, Betts filed a successive post-conviction petition (Second Post-Conviction Petition) in state court. On February 8, 2012, Betts also filed a motion for leave to file the Second Post-Conviction Petition. On March 12, 2012, the circuit court denied Betts' motion. The record indicates that the Habeas Petition in the instant action was then filed on May 30, 2012, having been sent in an envelope postmarked on April 9, 2012. In the ongoing state court proceedings, Betts subsequently appealed the decision of the state court denying his motion for leave to file the Second Post-Conviction Petition. On June 28, 2012, Betts moved to withdraw his appeal, and the appellate court granted the motion to withdraw and dismissed the appeal. Respondent now moves to dismiss the Habeas Petition in the instant action as untimely.

DISCUSSION

The statute of limitations for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is provided in 28 U.S.C. § 2244(d), which states the following:

(d)(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 time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. ยง ...


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