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United States Ex Rel. Franklin v. Lemke

United States District Court, Seventh Circuit

June 4, 2013

MICHAEL LEMKE, Warden, Respondent.


MILTON I. SHADUR, Senior District Judge.

Decory Devell Franklin ("Franklin") has just filed a 28 U.S.C. §2254[1] Petition for Writ of Habeas Corpus ("Petition") in which he challenges his February 25, 2004 conviction on a charge of attempted First Degree Murder, on which he is currently serving a 50-year sentence. As is most often the case with state prisoners advancing federal constitutional challenges to their convictions, Franklin has used the form of Petition made available by this District Court's Clerk's Office, filling in the relevant information in handprinted form. This memorandum opinion and order is issued sua sponte because on its face the Petition discloses its untimeliness in statute of limitations terms.

According to Petition Pt. I ¶5, Franklin's direct appellate review process ended with the October 5, 2009 denial of his petition for a writ of certiorari from the United States Supreme Court (that of course occurred after Franklin's appeal had wended its way through the state court system, with the last state court action having been the March 25, 2009 affirmance of his conviction and sentence by the Illinois Supreme Court). According to Petition Pt. II ¶1.B, Franklin then instituted a state court post-conviction proceeding on May 3, 2010, 6 months and 28 days after the denial of the petition for certiorari.

According to the Motion for Stay and Abeyance that Franklin has filed to accompany his Petition, that state post-conviction petition was initially dismissed in July 2010 on untimeliness grounds. Then a late notice of appeal was allowed in November 2010, after which Franklin's post-conviction petition was successively addressed at all three levels in the state court system: the Circuit Court of Cook County, the Illinois Appellate Court and the Illinois Supreme Court, which affirmed the lower courts' denial of relief on November 28, 2012.[2]

But it was not until May 29, 2013 that this District Court's Clerk's Office received the Petition and its accompanying papers, as evidenced that office's date stamp. That was 6 months and 1 day after the state post-conviction petition ceased to be "pending." And even with the benefit of the "mailbox rule" applicable to prisoner filings ( Houston v. Lack , 487 U.S. 266 (1988)), no more than a few days could be lopped off of that time period.

What we have then is that, even when account is taken of the lengthy period during which state post-conviction proceedings are treated as having been pending, nearly a month more than a year elapsed between "the date on which the judgment [of conviction] became final by the conclusion of direct review" (Section 2244(d)(1)(A)) and the date on which Franklin filed his Petition in this District Court (6 months and 28 days plus 6 months and 1 day, with that total perhaps reduced by some few days by operation of the "mailbox rule"). That being the case, the Petition is clearly untimely under Section 2244(d).

That, however, does not call for an immediate sua sponte dismissal, for Section 2244(d) timeliness is not jurisdictional. So because of the possibility, however remote, that the State might waive the bar of limitations, this Court is transmitting a copy of this memorandum opinion and order to the Illinois Attorney General's Office with the request that it be advised on or before June 24 whether that office is moving for dismissal on timeliness grounds or is instead waiving the statute of limitations.[3]

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