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United States ex rel. Gonzalez v. Harrington

United States District Court, N.D. Illinois

June 3, 2013

UNITED STATES OF AMERICA ex. rel. GILBERTO GONZALEZ #K69916, Petitioner,
v.
RICK HARRINGTON, Warden, Respondent

Gilberto Gonzalez, United States of America ex rel., Petitioner, Pro se, Menard, IL.

For Michael Atchison, Respondent: Karl R. Triebel, LEAD ATTORNEY, Illinois Attorney General's Office (100 W), Chicago, IL.

OPINION

Page 911

MEMORANDUM OPINION AND ORDER

Milton I. Shadur, Senior United States District Judge.

On May 9, 2013 this Court culminated its inquiry into the question whether the Petition for Writ of Habeas Corpus (" Petition" ) filed by pro se plaintiff Gilberto Gonzalez (" Gonzalez" ) was timely under 28 U.S.C. § 2244(d)(" Section 2244(d)" ) by reconfirming (1) its negative answer to that question and (2) Gonzalez' right under Fed.R.Civ.P. (" Rule" ) 59(e) to move to alter or amend this Court's final judgment in that respect on or before May 27. [1] Gonzalez has timely filed such a motion, captioned " Motion For Relief From Judgment on the Dismissal of Petitioner's Habeas Corpus Petition as Untimely and/or Motion To Alter or Amend April 29, 2013 Order," [2] and this memorandum opinion and order will deal with that motion.

As before, Gonzalez seeks to escape the impact of Section 2244(b)(1) by pointing to the action of his state law post-conviction counsel, attorney Jed Stone, in assertedly misinforming Gonzalez as to the filing of the federal habeas petition that was concededly filed too late (see Opinion III). As Gonzalez would have it, that entitles him to equitable tolling even though he did not satisfy the statutory tolling provision of Section 2244(d)(2).

But that provision reflects a lack of understanding of the very cases on which Gonzalez seeks to hang his hat: Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2559, 177 L.Ed.2d 130 (2010) and Martinez v. Ryan, 132 S.Ct. 1309, 1320, 182 L.Ed.2d 272 (2012). [3] This opinion will first treat with the rule pronounced by the

Page 912

Supreme Court in Coleman v. Thompson, 501 U.S. 722, 753-55, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) and then to go on to discuss Holland and Martinez.

Here are excerpts from Coleman (citations omitted) that provide the backdrop against which both Holland and Martinez must be read (the first of these is from 501 U.S. at 752-73, the second is from id. at 753, the third is from id at 754, the fourth is from id. at 755 and the fifth is from id. at 756-57.

Applying the Carrier rule as stated, this case is at an end. There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. Coleman contends that it was his attorney's error that led to the late filing of his state habeas appeal. This error cannot be constitutionally ineffective; therefore Coleman must " bear the risk of attorney error that results in a procedural default."
* * *
Attorney ignorance or inadvertence is not " cause" because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must " bear ...

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