United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
Petitioner Timothy Cunningham is currently incarcerated at the Lawrence Correctional Center in Sumner, Illinois, in Stephen Duncan's custody. (Dkt. No. 10 at 2). Cunningham is serving a life sentence for first degree murder, to run consecutively to additional sentences of twenty-five years for attempted murder and twenty years for home invasion. (Dkt. No. 16-20). Cunningham has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1). Upon review of the state court record, the Court concludes that Cunningham's petition in relation to his first degree and attempted murder judgments is untimely. The Court further finds that Cunningham's petition regarding his home invasion conviction is procedurally defaulted. The Court therefore dismisses Cunningham's petition (Dkt. No. 1) in its entirety with prejudice and declines to issue a Certificate of Appealability.
Following a 2001 jury trial in the Circuit Court of Will County, Illinois, Cunningham was convicted of first degree murder, 720 ILCS 5/9-1(a)(2), felony murder, 720 ILCS 5/9-1(a)(3), attempted murder, 720 ILCS 5/8-4(a), and home invasion, 720 ILCS 5/12-11(a)(2). The trial court merged the home invasion and felony murder convictions into the first degree murder conviction. On July 10, 2001, Cunningham was sentenced to life in prison for first degree murder, to run consecutive to a term of twenty-five years for attempted murder. Following his conviction, Cunningham appealed to the Illinois Appellate Court for the Third District. See People v. Cunningham, No. 3-01-0514 (Ill.App.Ct. 2003). On November 25, 2003, the Illinois Appellate Court vacated Cunningham's felony murder conviction while affirming his first degree murder and attempted murder convictions. (Dkt. No. 16-1 at 13). Cunningham filed a petition for leave to appeal ("PLA") in the Illinois Supreme Court, which was denied on March 24, 2004. (Dkt. No. 16-8). The United States Supreme Court denied Cunningham's petition for certiorari on October 4, 2004. (Dkt. No. 16-9).
Cunningham filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 on September 22, 2004 asserting, among other things, 132 allegations of ineffective assistance of trial counsel. (Dkt. No. 16-27 at C1233-1327). The trial court appointed post-conviction counsel to Cunningham, (Dkt. No. 16-2 at 2), who filed an amended post-conviction petition asserting, inter alia, nine grounds of ineffective assistance of trial counsel. (Dkt. No. 16-27 at C1409-28). The trial court dismissed the petition on October 11, 2007. (Dkt. No. 16-28 at C1545). On appeal, Cunningham alleged that post-conviction counsel provided unreasonable assistance in violation of Illinois Supreme Court Rule 651(c) by failing to adequately present his pro se claims in the amended petition and failing to argue that his sentences should run concurrently. (Dkt. No. 16-2 at 3-4). The Illinois Appellate Court affirmed the trial court's dismissal of Cunningham's post-conviction petition on August 27, 2009. (Dkt. No. 16-2 at 7). Cunningham's pro se PLA to the Illinois Supreme Court, where he contended that he received ineffective assistance from trial counsel, was denied on January 27, 2010. (Dkt. No.16-14).
On September 8, 2010, Cunningham filed a pro se motion for leave to file a successive post-conviction petition. (Dkt. No. 16-29 at R1635-89). The Circuit Court of Will County denied the motion on October 13, 2010. (Dkt. No. 16-29 at R1690). On appeal, Cunningham argued that his sentence was void because the trial court improperly merged his home invasion conviction into his first-degree murder conviction. (Dkt. No. 16-3 at ¶ 3). The Illinois Appellate Court affirmed Cunningham's convictions but held that the merger was improper and remanded for sentencing only on the home invasion conviction. (Dkt. No. 16-3 at ¶ 7). Cunningham filed a petition for rehearing with the Illinois Appellate Court on May 22, 2012, arguing that the proper remedy for a void sentence was resentencing on all counts. (Dkt. No. 16-18 at 2, 11). The Illinois Appellate Court denied his petition on June 8, 2012. (Dkt. No. 16-18 at 24). Cunningham's ensuing PLA, raising the same argument, was denied by the Illinois Supreme Court on September 26, 2012. (Dkt. No. 16-19). On March 4, 2014, the trial court sentenced Cunningham to twenty years for home invasion, to run consecutive to his preexisting twenty-five year and life sentences for attempted first degree murder and first degree murder, respectively. (Dkt. No. 16-20). He did not appeal the sentence.
This Court received Cunningham's pro se petition for a writ of habeas corpus on March 25, 2015. (Dkt. No. 1). Cunningham alleges ineffective assistance of trial counsel and that a conflict of interest existed between his trial attorney and the state prosecutor. (Dkt. No. 1). The Court also received Cunningham's motion to file a late petition for a writ of habeas corpus on March 25, 2015. (Dkt. No. 5). Respondent Stephen Duncan filed an answer on June 3, 2015. (Dkt. No. 15 at 15). The Court received Cunningham's reply on June 22, 2015, five days past its due date. (Dkt. No. 17). Nevertheless, the Court considers Cunningham's reply in this ruling.
A. Cunningham's Habeas Petition Concerning his First Degree Murder and Attempted Murder Convictions is Untimely
Under 28 U.S.C. § 2244(d)(1), a one year statute of limitations applies to petitions for a writ of habeas corpus by an individual in custody pursuant to the judgment of a state court. The limitations period typically begins to run on the date on which the petitioner's judgment becomes final by the conclusion of direct review of the judgment or the time for seeking such review expires. 28 U.S.C. § 2244(d)(1)(A); Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (statute of limitations under § 2244(d)(1) does not run until both conviction and sentence become final). Here, Cunningham's first-degree murder and attempted murder judgments for those convictions became final when his petition for certiorari to the United States Supreme Court was denied on October 4, 2004. See Gonzales v. Thaler, 132 S.Ct. 641, 653-54 (2012).
This statute of limitations is tolled, however, while a "properly filed" application for state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). Cunningham filed a pro se post-conviction petition on September 22, 2004. The Illinois Appellate Court affirmed the denial of that petition, but remanded Cunningham's home invasion conviction for sentencing on independent grounds. (Dkt. No. 3). Thus, Cunningham's first degree murder and attempted murder judgments were left undisturbed. S ee People v. Warren, 16 N.E.3d 13, 42 (Ill.App.Ct. 2014) (appellate court has authority to correct a void judgment, regardless of the nature of the proceeding that brings the error to the court's attention). Accordingly, the statute of limitations began to run on those two judgments when the Illinois Supreme Court denied his post-conviction PLA on January 27, 2010. Cunningham therefore needed to submit his petition for habeas corpus challenging his first degree murder and attempted murder judgments in this Court by January 27, 2011. Cunningham failed to file his federal habeas petition in this Court until March 25, 2015, thereby missing his deadline by over four years for his first degree murder and attempted murder judgments.
The fact that Cunningham sought to file a successive post-conviction petition in state court does not save his federal petition. In Illinois, a petitioner may only file one petition for post-conviction relief absent leave of court. 725 ILCS 5/122-1(f). Where a petitioner applies for successive post-conviction relief in Illinois, "the second petition tolls the limitations period only if the state court grants permission to file it." Martinez v. Jones, 556 F.3d 637, 638-39 (7th Cir. 2009). Cunningham's motion for leave to file a successive post-conviction petition was denied by the trial court. Therefore, it was never "properly filed" under § 2244(d)(2) and has no effect on the limitations period. See id. Because the trial court denied Cunningham's request to file a successive post-conviction petition, his federal statute of limitations was not tolled and his federal filing is untimely.
Nor is Cunningham's petition salvaged by equitable tolling. Equitable tolling of the limitations period is available only if Cunningham can show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010). It is the petitioner's burden to establish both requirements. Id. Equitable tolling of the limitation period imposed by § 2244(d) is "reserved for extraordinary circumstances far beyond the litigant's control that prevented timely filing." Id. (citations and quotation marks omitted). The application of equitable tolling requires courts to employ a fact-intensive inquiry on a case-by-case basis. See Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014).
Here, Cunningham fails to demonstrate that he was diligently pursuing his rights from the time the statute of limitations began to run. The availability of equitable tolling, albeit rare, depends on the facts of each case. See id. at 688 ("[petitioner's] repeated efforts to obtain an unjustifiably withheld file, the minimal time he had in which to complete a petition afterward, and the initial determination that tolling was appropriate" warranted equitable tolling). Cunningham asserts that he "was diligently pursuing his appeal interests." (Dkt. No. 17 at 2). He also claims that he suffered both a mild heart attack and the theft of his paperwork, trial transcripts, and legal research. (Dkt. No. 1 at 18). Assuming, absent any evidence, that these events occurred, Cunningham nevertheless does not make the requisite showing to justify equitable tolling. He claims his paperwork was stolen in September 2014 and that his heart attack occurred the following month. (Dkt. No. 1 at 18). But the statute of limitations began to run on January 27, 2010 and Cunningham makes no attempt to ...