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Scott v. Butler

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

July 27, 2015

DELON E. SCOTT (R-16900), Petitioner,
v.
KIM BUTLER, Warden, Menard Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

Delon Scott was convicted in state court of first-degree murder and was sentenced to 85 years in prison. Scott has filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254. Kim Butler, the warden of the prison where Scott is incarcerated, has moved to dismiss the petition as time-barred. For the reasons stated below, the Court grants Butler's motion.

Facts

The following facts are taken from the Illinois Appellate Court decision affirming Scott's conviction. On October 8, 2007, Scott was riding in a car driven by his girlfriend, Cassondra Cawthon, on I-57 in Will County. People v. Scott, No. 3-09-1055, 2011 WL 10468028, at *1 (Ill.App. 2011). Around 10:30 p.m., Scott shot Cawthon, causing the car to veer off into a ditch. Id. at *1-2. Scott then pulled the car back onto the highway, where he opened the driver door and threw Cawthon's body onto the road. Id. at *1. Almost 150 feet later, Scott stopped the car, exited, and retreated into a field. Id. Police arrived on the scene and took Scott into custody by force, noting that he was "verbally combative" and kicked out the back window of the squad car. Id. Scott was then taken to the hospital, where it was discovered he was under the influence of "amphetamines, opiates, and cannabis." Id. During a videotaped interview by police conducted in the emergency room, Scott admitted that he "shot [Cawthon], threw her out of the car, and killed her." Id. at *2.

Before his trial, the court ordered Dr. Zoot, who is either a psychiatrist or psychologist, Dr. Zoot, to examine Scott for fitness. Id. at *1. Dr. Zoot concluded that Scott was mentally fit to stand at trial. Id. A jury found Scott guilty of first-degree murder, and the trial judge sentenced him to 85 years in prison. Id. at *1-2. Prior to the sentencing hearing, the court ordered a presentence investigation, during which Scott reported that he "was told by a psychiatrist at some point that he had ADD and/or ADHD." Id. The probation officer who prepared the presentence report asked Scott if he "saw visions, heard voices or felt compelled to hurt himself or others, " to which Scott responded, "I don't know." Id.

Scott appealed his conviction, arguing, among other things, that the trial court "ignored his mental illness" as a mitigating factor in his sentencing. Id. at *3. However, Scott did not present evidence of his mental illness at his sentencing, and Dr. Zoot had suggested following his pretrial examination that Scott "may have feigned mental illness as a trial tactic." Id. at *4. The appellate court affirmed Scott's conviction and sentence on March 9, 2011. Id. at *6. The Illinois Supreme Court denied Scott's leave to appeal (PLA) on May 25, 2011. See Order Denying PLA, People v. Scott, No. 112154, 949 N.E.2d 1102 (Ill. 2011). Scott did not petition for a writ of certiorari.

Scott filed a pro-se post-conviction petition on March 2, 2012, alleging a violation of his Sixth Amendment and due process rights. Resp.'s Mot. to Dismiss, Ex. 3. Prior to Scott's trial, the judge stated the following during the voir dire examination of the prospective jurors:

Ladies and gentleman, before I ask you my next question, I want to preface it with my own opinion which I am convinced I'm about right. My opinion is no matter who you are, you have certain things that you are sympathetic about, certain things you might be bias about, certain things you might be prejudiced about. That's just the way it is.
The question is, whatever sympathies or biases or prejudices that you might have, can you set them aside, keep them out of the courtroom, and base your decision only on the evidence that's presented?

Pet'n for Habeas Corpus, Ex. 1. Two jurors responded "no" to this question but were nonetheless seated. Id. Scott contended in his post-conviction petition that this resulted in a biased jury. Scott also contended that his trial lawyer rendered ineffective assistance of counsel by failing to move for a directed verdict before the jury was excused to deliberate. Scott also contended that his appellate lawyer rendered ineffective assistance by failing to argue that Scott's trial lawyer was ineffective.

The state trial court denied the post-conviction petition, and the appellate court affirmed this ruling on August 23, 2013. People v. Scott, No. 3-12-0434, at 2, 4 (Ill.App.Ct. Aug. 23, 2013) (unpublished order). The Illinois Supreme Court denied Scott's PLA on January 29, 2014. Order Denying PLA, People v. Scott, No. 116757, 3 N.E.3d 801 (Ill. 2014). Scott did not petition for a writ of certiorari.

On January 13, 2015 Scott filed the present petition for a writ of habeas corpus. As indicated earlier, Butler has moved to dismiss the petition as time barred.

Discussion

A one-year limitations period applies to petitions for habeas corpus filed under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). The time starts to run, in most cases, when the petitioner's state court conviction "became final" by the "expiration of time seeking [direct] review." 28 U.S.C. § 2244(d)(1)(A). No later start date applies in this case; the record does not reflect any state-created impediment to filing a timely application, and Scott is not attempting to apply a newly recognized constitutional right. Nor is there anything to suggest that any facts to ...


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