United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
Petitioner Antonio Latimore is serving a 45-year sentence for first-degree murder. In this action, he seeks relief pursuant to 28 U.S.C. § 2254 on four grounds: (1) his conviction violates due process because the evidence at trial was insufficient as a matter of law to establish guilt beyond a reasonable doubt; (2) in affirming his conviction on direct appeal, the Illinois Appellate Court (a) relied on an unreasonable application of Illinois Supreme Court law, improperly conflating theories of felony murder and transferred intent and (b) made an unreasonable determination of facts, in violation of Petitioner's due process rights; (3) his trial counsel was ineffective for failing to argue the evidence was insufficient or to object to a sentencing error, and appellate counsel on direct appeal was ineffective for failing to raise trial counsel's ineffectiveness; and (4) his post-conviction counsel was ineffective for failing to raise the first three grounds for relief.
Respondent Kess Roberson, the Warden at Lincoln Correctional Center where Petitioner is being held, moves to dismiss. Respondent contends Petitioner's fourth claim is not cognizable and the remaining three are untimely. As explained below, the court agrees that Petitioner's claim for ineffective assistance of post-conviction counsel is not cognizable under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The court denies Respondent's motion to dismiss the remaining three claims for untimeliness without prejudice. On this record, the court is unable to determine whether Petitioner faced an unconstitutional impediment within the meaning of § 2244(d)(1)(B) or whether his 2003 post-conviction petition was "properly filed" under § 2244(d)(2). Therefore, additional briefing and an evidentiary hearing are required.
BACKGROUND AND PROCEDURAL HISTORY
I. Conviction and Direct Appeal
On habeas review, federal courts presume the factual findings made by state courts are correct. See 28 U.S.C. § 2254(e)(1); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012). This presumption can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The following facts are drawn from the Illinois Appellate Court's decision affirming the dismissal of Mr. Latimore's petition for post-conviction relief, ( People v. Latimore, No. 1-11-3073 (Ill.App.Ct. 1st Dist. Dec. 2, 2013) Ex. G to Mot. to Dismiss [15-7]), and from the Illinois Appellate Court decision affirming Mr. Latimore's conviction on direct appeal. ( People v. Latimore, No. 1-00-0489 (Ill.App.Ct. 1st Dist. June 29, 2001) Ex. A to State Ct. Record [15-1].)
On the afternoon of May 7, 1998, Petitioner Antonio Latimore started a gunfight with Eric Hodo, whom Petitioner knew was armed, in the vicinity of an apartment complex. During the fight, Veronica Vardiman, an innocent bystander, was killed, and Ivory Battles, another bystander, was injured. After a bench trial, Petitioner was convicted and sentenced to 45 years in prison for first-degree murder and to two concurrent six-year terms for attempted murder and aggravated battery with a firearm.
Petitioner appealed, arguing that there was insufficient evidence to prove him guilty beyond a reasonable doubt because the State had failed to prove that he intended to kill Veronica Vardiman and had failed to prove that he fired the shot that killed her. On June 29, 2001, the Illinois Appellate Court rejected Petitioner's argument and affirmed his conviction. See People v. Latimore, No. 1-00-0489 (Ill.App.Ct. 1st Dist. 2001). The Illinois Appellate Court concluded there was sufficient evidence to support Latimore's convictions under each of the theories of accountability, transferred intent, and felony murder predicated on aggravated discharge of a firearm. Id. at 17. The Illinois Appellate Court reasoned that "although defendant did not fire the fatal or wounding shots, he is accountable for the actions of those engaged in the gun battle he started, " and although Petitioner did not intend to kill Veronica Vardiman, he did intend to kill Eric Hodo. Id. at 19. The court concluded "the doctrine of transferred intent was properly applied in this case in conjunction with the doctrine of accountability." Id.
On December 5, 2001, the Illinois Supreme Court denied without comment Petitioner's ensuing petition for leave to appeal. ( People v. Latimore, 197 Ill.2d 573, 573 (Ill. 2001) (table), Ex. B to State Ct. Record [15-2].) Petitioner did not file a writ of certiorari in the United States Supreme Court. (Petition for Writ of Habeas Corpus , hereinafter "Petition, " at 2.)
II. Post-Conviction Proceedings
On July 17, 2003, petitioner filed a pro se post-conviction petition in the Circuit Court of Cook County, arguing again that the State failed to prove him guilty beyond a reasonable doubt. (Petition for Post-Conviction Relief, People v. Latimore, No. 98-cr-18629, Ex. C to State Ct. Record [15-3] at C17, hereinafter "Pet. for Post-Conviction Relief".) He further alleged that the State obtained his conviction through perjured and inconsistent testimony, that he was denied a fair trial by the prosecutor's prejudicial remarks during closing arguments, and that he was denied the effective assistance of trial and appellate counsel on direct appeal. ( Id. at C29-32.) The trial court dismissed the petition as meritless in a written order on October 24, 2003. ( See People v. Latimore, No. 1-4-0327, 2 (Ill.App.Ct. 1st Dist. May 18, 2005), Ex. D to State Ct. Record [15-4].) Petitioner appealed and the Illinois Appellate Court vacated and remanded in May 2005 because the trial court's order had not been entered within the required 90 days. ( Id. at 4.)
On remand, petitioner filed an amended pro se petition for post-conviction relief on August 11, 2010,  alleging that trial and appellate counsel were ineffective for failing to raise the insufficiency of the evidence. Petitioner did not reference the claims he raised in his original petition. (Petitioner's Amended Petition for Post-Conviction Relief, People v. Latimore, No. 98-cr-18629, Ex. E to State Ct. Record [15-5], C121-53 hereinafter "Am. Pet. for Post-Conviction Relief".) The State moved to dismiss Latimore's petition for post-conviction relief, alleging that each petition (the original petition in 2003 and the amended petition in 2010) was untimely and procedurally barred by res judicata and waiver. (People's Mot. to Dismiss Am. Pet. for Post-Conviction Relief, People v. Latimore, No. 98-cr-18620, Ex. E to State Ct. Record at C203.) In a pro se response to the motion to dismiss, Petitioner argued that the court should excuse his late filing because he was denied access to the law library due to staffing shortages and lockdowns. (Petitioner Reply Mot. and Arg. to Peoples Mot. to Dismiss Am. Pet. for Post Conviction Relief, People v. Latimore, No. 98-cr-1862, Ex. E to State Ct. Record at C212-13.)
The trial court held a hearing on the motion to dismiss on September 29, 2011. ( See 9/29/11 Trans., Ex. F to State Ct. Record [15-6].) At the hearing, Petitioner's appointed post-conviction counsel requested that the court consider both the original and amended petitions. ( See 9/29/11 Trans., Ex. F to Mot to Dismiss, U-7:5-6.) Counsel also raised the issue of Mr. Latimore's difficulties accessing the law library as a defense to untimeliness. ( Id. at U-7:16-19.) The trial court "considered in its entirety all of the Petitioner's claims for relief in the State's motion to dismiss." ( Id. at U-8:6-7.) The court explained that "[a]lthough Petitioner's petition was filed untimely and is procedurally barred, the Court having fairly considered Petitioner's claims on the merits hereby find [sic] that the allegations of the post-conviction petition do not make a substantial showing of a constitutional violation. Wherefore, the petition for post-conviction relief is dismissed." ( Id. at U-8:8-13.)
Petitioner timely appealed and the Illinois Appellate Court affirmed the dismissal of Mr. Latimore's petition for post-conviction relief on December 2, 2013, finding that Petitioner was not denied reasonable assistance of his post-conviction counsel. People v. Latimore, No. 1-11-3073 (Ill.App.Ct. 1st Dist. 2013). The Illinois Supreme Court denied petitioner's petition for leave to appeal on March ...