United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY St. EVE, District Judge.
On March 16, 2012, Petitioner Joel Martinez filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). On May 31, 2012, the Court granted Respondent's motion to dismiss Martinez's habeas petition as untimely. See 28 U.S.C. § 2244(d)(1). On June 24, 2013, the United States Court of Appeals for the Seventh Circuit vacated the Court's May 31, 2012, judgment and remanded this matter for reconsideration in light of McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013), which held claims of actual innocence, if proved, can excuse the expiration of the statute of limitations for federal habeas petitions.
On remand, the Court appointed counsel for Martinez and set a briefing schedule on the issue of whether the actual innocence exception applies under the circumstances. This issue is now fully briefed. For the following reasons, Martinez's habeas claims are untimely pursuant to 28 U.S.C. § 2244(d)(1). Moreover, even if Martinez's habeas claims were timely, the Court denies Martinez's habeas claims on the merits. Further, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
On July 28, 2005, Martinez entered into a negotiated plea of guilty to one count of first degree murder in the Circuit Court of Cook County, Illinois. (R. 8, Habeas Rule 4 Exs., Ex. A.) That same day, the Circuit Court sentenced him to twenty-five years in prison. ( Id. ) On September 22, 2005, Martinez filed a pro se motion to withdraw his guilty plea. (Exs. M, N.) On December 13, 2005, Martinez withdrew his motion and did not directly appeal his conviction or sentence. (Exs. A, M.)
On March 12, 2008, Martinez filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., alleging that: (1) his trial counsel was constitutionally ineffective; (2) he is actually innocent; (3) his sentence was void because the trial court did not properly admonish him of his mandatory supervised release ("MSR") term; and (4) his confession was involuntary. (Exs. A, N, O.) On May 9, 2008, the Circuit Court of Cook County dismissed Martinez's post-conviction petition as frivolous and without merit. (Exs. N, Q.)
Martinez appealed the Circuit Court's summary dismissal of his post-conviction petition to the Illinois Appellate Court, First District, arguing that: (1) he is actually innocent; (2) his trial counsel was constitutionally ineffective; (3) the trial court improperly admonished him regarding his MSR term; and (4) the post-conviction trial court failed to fully review his post-conviction petition. (Exs. A-C.) On October 27, 2010, the Illinois Appellate Court affirmed the trial court's dismissal of Martinez's post-conviction petition and on May 25, 2011, the Supreme Court of Illinois denied Martinez's petition for leave to appeal ("PLA"). (Exs. E, F.)
On July 7, 2011, Martinez filed a pro se motion for leave to file a mandamus complaint in the Circuit Court alleging that 730 ILCS 5/3-6-3-the statute under which the Circuit Court sentenced him-violated the Illinois Constitution's single subject rule. (Exs. G, H.) On September 20, 2011, the Circuit Court denied Martinez's motion. (Ex. H.) Thereafter, on November 8, 2011, Martinez filed a pro se motion for leave to file a late notice of appeal that the Circuit Court denied on November 18, 2011. (Exs. I, J.) On January 18, 2012, Martinez filed a pro se motion for leave to file a late notice of appeal to the Illinois Appellate Court. (Ex. K.) The Illinois Appellate Court denied Martinez's motion on January 26, 2012. ( Id. )
The Court received Martinez's pro se petition for a writ of habeas corpus on March 20, 2012. Although Martinez did not date or attached a certificate of mailing to his habeas petition, Martinez's initial docket entry states that the envelope containing Martinez's habeas petition was postmarked March 16, 2012. (R. 1.) Construing his pro se habeas petition liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014), Martinez brings the following claims: (1) the Circuit Court's failure to grant a post-conviction evidentiary hearing violated his due process and equal protection rights; (2) the statute under which he was sentenced, namely, 730 ILCS 5/3-6-3, denied him due process and equal protection; and (3) 730 ILCS 5/3-6-3 violates the Illinois Constitution's single subject rule.
"AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus." Wall v. Kholi, ___ U.S. ___, 131 S.Ct. 1278, 1283, 179 L.Ed. 252 (2011) (citing 28 U.S.C. § 2244(d)(1)(A)); see also Socha v. Boughton, 763 F.3d 674, 682 (7th Cir. 2014); Ray v. Clements, 700 F.3d 993, 1003 (7th Cir. 2012). "This period runs from the latest of' four specified dates, including":
(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.
Wall, 131 S.Ct. at 1283 (quoting 28 U.S.C. § 2244(d)(1)(A)-(D)); Martin v. Bartow, 628 F.3d 871, 873 (7th Cir. 2010).
I. Timeliness Analysis
As a starting point, the Court turns to the date upon which Martinez's judgment became final under 28 U.S.C. § 2244(d)(1). See Gonzalez v. Thaler, ___ U.S. ___ 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012) (conviction becomes final upon expiration of time for seeking direct review). Martinez's conviction became final on August 28, 2005, which was 30 days after the Circuit Court of Cook County entered judgment on Martinez's guilty plea and sentenced him to 25 years in prison. See Ill.S.Ct.R. 604(d). In particular, under Illinois Supreme Court Rule 604(d):
No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment. No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment.
210 Ill.2d. R. 604(d). In short, "Rule 604(d) establishes a condition precedent for an appeal from a defendant's plea of guilty." People ex rel. Alvarez v. Skryd, 241 Ill.2d 34, 40, 348 Ill.Dec. 384, 944 N.E.2d 337 (Ill. 2011) (citation omitted).
Accordingly, to perfect his appellate rights, Martinez had 30 days from the day the Circuit Court of Cook County entered judgment on July 28, 2005, to file a motion to withdraw his guilty plea. See People v. Albers, 992 N.E.2d 600, 603, 372 Ill.Dec. 758, 761 (2d Dist. 2013) ("the failure to file the appropriate motion under Rule 604(d) results in dismissal of the appeal"); People v. Green, 375 Ill.App.3d 1049, 1053, 874 N.E.2d 935, 314 Ill.Dec. 570 (2d Dist. 2007) ("defendant's failure to follow Rule 604(d) by moving to withdraw his guilty plea and vacate the judgment subjected him to the consequence actually specified by the rule-the loss of his right to appeal the judgment."). Because Martinez filed a late motion to withdraw his guilty plea on September 22, 2005, the statute of limitations began to run on August 28, 2005. Thus, absent statutory or equitable tolling, Martinez was required to file his federal habeas petition on or before August 28, 2006. See Newell v. Hanks, 283 F.3d 827, 833 (7th Cir. 2002) (one-year limitations period expires on anniversary of date conviction became final). Martinez filed the present habeas petition on March 16, 2012-over five years after the statute of limitations had expired.
Although the limitations period is tolled during a properly filed application for state post-conviction relief, see 28 U.S.C. § 2244(d)(2), Martinez did not file his post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act until March 12, 2008, which was well after the August 28, 2006, deadline. See DeJesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009) ("a state proceeding that does not begin until the federal year has expired is irrelevant"). Similarly, Martinez's mandamus action, filed on July 7, 2011, did not toll the limitations period. See id. In fact, Martinez filed all of his collateral motions and applications after August 28, 2006, and thus these motions do not toll the one-year limitations period. See Grifffith v. Rednour, 614 F.3d 328, 329 (7th Cir. 2010).
Hence, in the May 31, 2012, Memorandum, Opinion, and Order, the Court concluded that neither statutory or equitable tolling applied under the circumstances, and therefore, Martinez's habeas petition was untimely. The Court, however, did not consider whether a claim of actual innocence excused Martinez's untimely habeas petition because the Supreme Court had yet to decide McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013), which abrogated Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005), holding actual innocence is unrelated to the statutory timeliness rules. The Court therefore turns to the parties' actual innocence arguments.
II. Actual Innocence
In 2013, the Supreme Court in McQuiggin held that actual innocence serves as a gateway through which a habeas petitioner may excuse the expiration of the statute of limitations under § 2244(d)(1). See id. at 1928. Actual innocence or "the fundamental miscarriage of justice exception, is grounded in the equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." Herrera v. Collins, 506 U.S. 390, 404-05, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). As the Supreme Court teaches, "tenable actual-innocence gateway pleas are rare: [A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" McQuiggin, 133 S.Ct. at 1928 (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). In other words, "[t]o establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327. This new, reliable evidence may include "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'" House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (quoting Schlup, 513 U.S. at 324). "To demonstrate innocence so convincingly that no reasonable jury could convict, a prisoner must have documentary, biological (DNA), or other powerful evidence: perhaps some non-relative who placed him out of the city, with credit card slips, photographs, and phone logs to back up the claim." Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005). When deciding the issue of actual innocence, "the habeas court must consider all the evidence, old and new, incriminating and exculpatory" to "make a probabilistic determination about what reasonable, properly instructed jurors would do." House, 547 U.S. at 538.
The Court turns to the factual findings made by the last state court to decide Martinez's case on the merits, namely, the post-conviction Illinois Appellate Court's factual findings in People v. Martinez, X-XX-XXXX (1st Dist. Oct. 27, 2010) (unpublished). The Court also considers the Circuit Court record in outlining the facts underlying Martinez's conviction.
The State charged Martinez and his co-defendants Jesus Castillo and Juan Cruz with first degree murder, among other offenses such as aggravated kidnaping, armed robbery, and aggravated vehicular hijacking, relating to the January 9, 2003, shooting death of Andy Bhairoo. On July 28, 2005, Martinez entered a guilty plea to one count of first degree murder, and, in exchange, the State dismissed the remaining counts against him. The Circuit Court then sentenced Martinez to 25 years imprisonment after explaining ...