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Smith v. Akpore

United States District Court, N.D. Illinois, Eastern Division

September 15, 2014

JASON SMITH, Petitioner,
v.
KEVWE AKPORE, Warden, Hill Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

This matter is before the Court on Respondent Kevwe Akpore's motion to dismiss [13] Petitioner Jason Smith's petition for a writ of habeas corpus [1] on the ground that the petition is time barred under the one-year statute of limitations that applies to federal habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). For the reasons stated below, the Court grants Respondent's motion [13] and dismisses the habeas petition as untimely.

I. Background

In December 2006, following a jury trial in the Circuit Court of Cook County, Illinois, Petitioner Jason Smith was convicted of attempted murder and attempted aggravated vehicular hijacking and sentenced to consecutive terms of 20 and 15 years imprisonment, respectively. Petitioner appealed, and the state appellate court affirmed on April 15, 2009. The Illinois Supreme Court denied Petitioner's ensuing petition for leave to appeal (PLA) on September 30, 2009, and Petitioner did not file a petition for a writ of certiorari to the United States Supreme Court.

On May 3, 2010, Petitioner filed a post-conviction petition (see 725 ILCS 5/122-1, et seq. ) in the Circuit Court of Cook County, which the court summarily dismissed on July 22, 2010. Petitioner appealed, and the Illinois Appellate Court affirmed the dismissal of his petition. On March 27, 2013, the Illinois Supreme Court denied leave to appeal. Over one month later, on May 6, 2013, Petitioner filed a petition for relief from judgment (see 725 ILCS 5/2-1401) in the Circuit Court of Cook County. The Court dismissed the petition as untimely on August 27, 2013. Petitioner did not appeal that decision.

On March 7, 2013, Petitioner mailed his 28 U.S.C. § 2254 petition from Hill Correctional Center. It was received by the Court on March 10. Respondent has moved to dismiss the petition as time-barred [13].

II. Analysis

The sole question raised in Respondent's motion is whether the petition should be dismissed as untimely under the one-year statute of limitations for § 2254 petitions set forth in 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) states:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which 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. § 2244(d)(1). Petitioner does not allege a state-created impediment to filing, a newly recognized and retroactive constitutional right, or an inability to discover the factual predicates of his claim. See 28 U.S.C. § 2244(d)(1)(B)-(D). Respondent thus argues only that the date on which Petitioner's conviction became final by the expiration of time for seeking review is the only applicable date on which to begin the one-year limitations period set forth in § 2244(d)(1). See 28 U.S.C. § 2244(d)(1)(A). Under section 2244(d)(1)(A), the "default" provision, see Johnson v. Robert, 431 F.3d 992, 992 (2005), the limitations period begins running when the judgment in a petitioner's case "bec[omes] ...


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