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United States Ex Rel. Boclair v. Harrington

United States District Court, Seventh Circuit

October 21, 2013

United States of America ex rel. Reginald Boclair, Petitioner,
Rick Harrington, Warden, [1] Menard Correctional Center, Respondent.


THOMAS M. DURKIN, District Judge.

Petitioner Reginald Boclair, a state prisoner serving a natural-life sentence for first degree murder and aggravated discharge of a firearm, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[2] Respondent Warden Rick Harrington responded to the petition, arguing that the petition should be dismissed as untimely because Boclair failed to comply with the one-year statute of limitations imposed by § 2244(d)(1) or, alternatively that the petition should be denied because the claims raised in the petition are either procedurally defaulted or without merit. R. 20. Because the petition is untimely, the Court need not reach the merits of Boclair's claims. The petition is dismissed, and a certificate of appealability is denied.


Section 2244(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 provides that 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." 28 U.S.C. § 2244(d)(1). This limitations period runs 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.

Id. § 2244(d)(1)(A)-(D). Because Boclair's petition was filed more than a year after the conclusion of direct review, § 2244(d)(1)(A), [3] the petition is untimely.

Boclair's state court conviction became final on December 31, 1996. This date was 90 days after the Illinois Supreme Court denied Boclair's direct appeal petition for leave to appeal ("PLA") on October 2, 1996, R. 20, Exh. E, when the time to file a certiorari petition in the United States Supreme Court passed. See Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012) (holding judgment of conviction became final "when the time for pursuing direct review in [the Supreme] Court" expired). Boclair argues that the finality of his conviction should be calculated by using the date that the Illinois Supreme Court issued its mandate (November 19, 1996), not the date that the court actually issued its decision denying the PLA (October 2, 1996). R. 25 at 2-3. Boclair's proposed method of calculation, however, has been squarely rejected by the Seventh Circuit. See Griffith v. Rednour, 614 F.3d 328, 329 (7th Cir. 2010) (citing Wilson v. Battles, 302 F.3d 745, 747-48 (7th Cir. 2002) (review by Illinois Supreme Court ends on its decision date, rather than on date of issuance of mandate)).[4]

Boclair's properly filed April 21, 1997 state postconviction petition, R. 20, Exh. F at C20, immediately tolled the limitations period under 28 U.S.C. § 2244(d)(2). See Wilson, 302 F.3d at 747. At this point, 111 days of untolled time had elapsed. The limitations period remained tolled until October 2, 2002, when the Illinois Supreme Court denied Boclair's postconviction PLA. See also Lawrence v. Florida, 549 U.S. 327, 332 (2007) (providing for no tolling while certiorari petition following conclusion of state postconviction proceedings was pending); Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (indicating no tolling available during 90-day period where habeas petitioner could have, but did not, seek certiorari following conclusion of state postconviction proceedings).

More untolled time elapsed-134 days-before Boclair mailed his third postconviction petition to the state circuit court on February 13, 2003.[5] R. 20, Exh. P at C44. That petition was pending for over eight years until November 30, 2011, when the Illinois Supreme Court denied Boclair leave to appeal the state appellate court's judgment affirming the denial of postconviction relief. R. 20, Exh. W. An additional 159 days of untolled time elapsed between November 30, 2011 and May 7, 2012, when Boclair mailed his § 2254 petition to this Court.[6] See R. 1-2 at 15.

Calculating the total number of days of untolled time (111 134 159), 404 days in total elapsed between the date Boclair's judgment became final and the date on which he filed his § 2254 petition in this Court. The petition is therefore untimely under § 2244(d)(1)(A) because it was filed more than one year after Boclair's judgment of conviction became final.

There is no basis for equitable tolling of the limitations period. Indeed, Boclair has not even requested that such tolling be applied. "[A] petitioner' is entitled to equitable tolling' only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Griffith, 614 F.3d at 331. Nothing in the record indicates that some extraordinary circumstance stood in the way of a timely filing. Rather, the late filing appears to have resulted from Boclair's decision to pursue numerous collateral attacks in state court. Should Boclair argue that his untimeliness is due to his misunderstanding of the law- Boclair appears to have misunderstood how to calculate the running of the limitations period-such misunderstanding does not permit tolling. See, e.g., Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006) ("Mistakes of law or ignorance of proper legal procedures are not extraordinary ...

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