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United States Ex Rel. Gilberto Gonzalez #K-69916 v. Michael Atchison

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


January 17, 2013

UNITED STATES EX REL. GILBERTO GONZALEZ #K-69916, PETITIONER,
v.
MICHAEL ATCHISON, RESPONDENT.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Gilberto Gonzalez ("Gonzalez") has filed a Petition for Writ of Habeas Corpus ("Petition")*fn1 to challenge his conviction on a first-degree murder charge on which he is now serving a 48-year sentence. This memorandum opinion and order is issued sua sponte to address a threshold question posed by the Petition before any consideration of the merits is in order.

With the acknowledged goal of curtailing the role of federal courts under 28 U.S.C. §2254,*fn2 which now codifies (but limits substantially) the scope of what used to be called (with good reason) the Great Writ of habeas corpus, in evaluating claimed constitutional violations in connection with state court criminal convictions, Congress has enacted a set of standards that includes a one-year statute of limitations (Section 2244(d)(1)), measured from the latest of four specified dates. What applies in Gonzalez' case is the first-listed of those dates (Section 2244(d)(1)(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.

Petition Pt. I ¶4(A)(2) identifies March 25, 2009 as the date when Gonzalez exhausted his efforts to obtain direct review of his conviction (that was the date on which the Illinois Supreme Court denied leave to appeal from the Illinois Appellate Court's affirmance of that conviction).*fn3 Although Petition Pt. I

¶5 reports that Gonzalez did not then seek a writ of certiorari from the United States Supreme Court, controlling caselaw adds the 90-day period within which such an application could have been filed to the March 25, 2009 date. That makes June 23, 2009 the date on which the one-year limitations clock began to tick.

It is at that point that the information provided by Gonzalez' Petition leaves an important gap. Petition Pt. II provides input as to Gonzalez' state court post-conviction proceedings, but ¶B of that Part speaks only of the Cook County Circuit Court's date of dismissal of Gonzalez' post-conviction petition--no information is provided as to the date on which he filed that petition. That latter date, rather than the dismissal date, is made relevant by the tolling provision of Section 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.

Petition Pt. II goes on to specify the dates on which the Illinois Appellate Court affirmed the dismissal of his post-conviction petition and on which the Illinois Supreme Court denied leave to appeal from that affirmance. That latter date of September 26, 2012, which marked the end of the tolling period, means that at least 2 months and 28 days elapsed from the end of that tolling period until Gonzalez submitted the Petition for consideration by this District Court.*fn4

In summary, Gonzalez must supplement the Petition promptly with the following additional information:

1. any delays in the course of the direct review of Gonzalez' conviction that did not conform to the statutory time requirements at any of the successive levels of review;

2. the date on which Gonzalez filed his post-conviction petition in the Circuit Court of Cook County;

3. any delays in the course of the successive levels of Gonzalez' post-conviction proceedings that did not conform to the statutory time requirements at any of those levels.

Gonzalez is ordered to file that supplemental information on or before February 4, 2013 to enable this Court to determine the timeliness vel non of the Petition--a determination that will control the decision as to whether to go on to consider the Petition's substantive content.


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