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United States ex rel. Higgins v. Atchison

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

September 29, 2014

UNITED STATES OF AMERICA ex rel. DAVID HIGGINS, Petitioner,
v.
MICHAEL ATCHISON, Warden, Menard Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

ANDREA R. WOOD, District Judge.

Petitioner David Higgins, a state prisoner serving a term of life imprisonment for eight counts of predatory criminal sexual assault, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. No. 1.) Respondent Rick Harrington, Warden of the Menard Correctional Center ("Menard"), [1] has moved to dismiss the Petition as untimely under 28 U.S.C. § 2244(d)(1). (Dkt. No. 14.) For the reasons set forth below, the Court finds that Higgins's § 2254 petition was timely and therefore denies Harrington's Motion to Dismiss.

BACKGROUND

Higgins's conviction stems from his repeated sexual abuse of his stepdaughter beginning when she was six or seven years old. (Dkt. No. 15, Ex. A at 1-2.) After three or four years of abuse, the then ten-year-old victim finally revealed it to her fifth-grade teacher and Higgins was arrested. ( Id. at 2.) At trial, the State presented testimony from the victim, as well as incriminating DNA evidence collected from semen on the victim's underwear. ( Id. ) Higgins did not testify at trial and presented no witnesses in his case in chief. ( Id. ) A jury convicted Higgins on eight counts of predatory criminal sexual assault, and the court sentenced him to a term of life imprisonment based on his criminal history. ( Id. )

On appeal, Higgins argued that his conviction should be reversed because the trial court erred in delaying a ruling on his motion in limine to bar use of his prior criminal sexual assault conviction for impeachment. ( Id. at 1-2.) The appellate court affirmed Higgins's conviction, holding that Higgins's failure to testify rendered any potential harm from the trial court's delay wholly speculative. ( Id. at 2-4.) The Illinois Supreme Court denied Higgins's ensuing petition for leave to appeal ("PLA") on March 25, 2009. (Dkt. No. 15, Ex. B.) The United States Supreme Court subsequently denied Higgins's petition for a writ of certiorari on January 11, 2010. (Dkt. No. 15, Ex. E at 2-3; Higgins v. Illinois, 558 U.S. 1120 (2010) (Mem.).)

On June 8, 2010, Higgins mailed the state circuit court a pro se petition for relief under Illinois's Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., raising various claims. (Dkt. No. 15, Ex. I at 30.) The circuit court held that the majority of these claims had been forfeited under Illinois law, as they could have been raised on direct appeal but were not. (Dkt. No. 15, Ex. E at 4.) The circuit court further ruled that one of Higgins's claims-that Higgins's appellate counsel was ineffective for failing to raise various claims on direct appeal-had not been forfeited, as it could not have been raised on direct appeal. But the circuit court found Higgins's arguments regarding this claim to be meritless. ( Id. at 12-13.)

On post-conviction appeal, the Office of the State Appellate Defender moved for leave to withdraw as appointed counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), concluding that "an appeal in this consolidated cause would be without arguable merit." (Dkt. No. 15, Ex. G ¶ 5.) On January 18, 2012, the appellate court granted the motion to withdraw and affirmed the circuit court's dismissal of the post-conviction petition. (Dkt. No. 15, Ex. C ¶¶ 5-6.)

Under Illinois state law, Higgins had 35 days after the appellate court's determination (or until February 22, 2012) to file a timely post-conviction PLA with the Illinois Supreme Court. See Ill. Sup.Ct. R. 315(b). However, Higgins filed a motion with the Illinois Supreme Court requesting an extension of time to file his PLA, which was granted on February 23, 2012.[2] (Dkt. No. 18, Ex. A.) The extension gave Higgins until March 28, 2012 "to file a timely [PLA]... to this Court." ( Id. ) Higgins mailed his ensuing PLA from Menard on March 28, 2012. (Dkt. No. 15, Ex. H.) The Illinois Supreme Court acknowledged its receipt of Higgins's PLA in a letter describing his petition as "timely filed as of March 28, 2012." (Dkt. No. 18, Ex. B.) The Illinois Supreme Court denied review on May 30, 2012. (Dkt. No. 15, Ex. D.) According to the certificate of service, Higgins placed the Petition in the Menard postal system on December 7, 2012. (Dkt. No. 1 at 57.)

DISCUSSION

Harrington argues that because Higgins's Petition was filed more than one year after the conclusion of direct review of his conviction, the Petition is time-barred under § 2244(d)(1)(A). Section 2244(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") 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 ...

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