United States District Court, N.D. Illinois, Eastern Division
UNITED STATES OF AMERICA ex rel. KEVIN WILLIAMS (#R26594), Petitioner,
RANDY PFISTER, Warden, Pontiac Correctional Center, Respondent
A. Williams, Petitioner, Pro se, Pontiac, IL.
OPINION AND ORDER
I. Shadur, Senior United States District Judge.
of the memorandum orders and memorandum opinions that this
Court has been compelled to write in this 28 U.S.C. §
2254 action brought by pro se prisoner
Kevin Williams (" Williams" ) have had occasion to
refer to it as " snake bitten" -- an apt
characterization stemming from the hitches and glitches that
have delayed the ability to address its viability. That was a
natural source of concern to this Court lest the delay in
arriving at a possible determination that Williams'
Section 2254 petition (the " Petition" ) properly
called for relief could mean that his time behind bars had
been longer than would have been the case if the merits of
his contentions had been dealt with earlier.
such concerns have been eliminated by the recently received
response that has been filed by the Illinois Attorney
General's Office in compliance with this Court's July
14, 2015 opinion that directed such a response pursuant to
Rule 5 of the Rules Governing Section 2254 Cases in the
United States District Courts (" Section 2254
Rules" ). But that elimination provides cold comfort to
Williams, for that response -- a " Motion To Dismiss as
Time-Barred" -- has shown the Petition to be untimely
and therefore as calling for its dismissal.
Because the Petition's untimeliness results from a
disqualification of two of Williams' state court
post-conviction efforts as limitations-tolling events under
Section 2244(d)(2), it makes sense to look at those efforts
first. Then, once those efforts have been eliminated from
consideration, the interaction between the one-year
limitation period prescribed by Section 2244(d)(1) and the
limitations-tolling period prescribed by Section 2244(d)(2)
becomes a simple matter.
The time during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
although a casual reading of that section might not focus
primarily on the words " properly filed
application" in ascertaining whether any given
post-conviction effort does or does not toll the running of
limitations, the caselaw teaches otherwise.
Williams' October 2009 filing of a proposed successive
post-conviction petition was rejected -- that is, leave to
file that petition was denied -- by the state Circuit Court,
with that denial then being affirmed on appeal and with the
Illinois Supreme Court then having ultimately denied leave to
file a late petition for leave to appeal the affirmance on
January 30, 2014. That history unquestionably disqualified
the proposed successive petition as not having been "
properly filed" -- as the per curiam opinion in
Martinez v. Jones, 556 F.3d 637, 638-39 (7th Cir.
2009) (citation omitted) has expressly reconfirmed:
Martinez argues that his § 2254 petition is not untimely
because his successive petition for postconviction relief
tolled his federal statute of limitations. But we have
clearly held that where state law requires pre-filing
authorization -- such as an application for permission to
file a successive petition -- simply taking steps to fulfill
this requirement does not toll the statute of limitations.
Instead the second petition tolls the limitations period only
if the state court grants permission to file it.
fate also befalls Williams' December 12, 2011 petition
for relief from judgment under 735 ILCS 5/2-1401. After that
petition was denied because (in addition to its substantive
problems) it was untimely, that dismissal was upheld and the
Illinois Supreme Court then denied leave to appeal. That
sequence rendered the petition not " properly
filed" for tolling purposes under the conclusive holding
in Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 S.Ct.
1807, 161 L.Ed.2d 669 (2005), reiterated in identical
language a few years later in the per curiam opinion in
Allen v. Siebert, 552 U.S. 3, 7, 128 S.Ct. 2, 169
L.Ed.2d 329 (2007) (internal quotation marks and brackets
When a postconviction petition is untimely under state law,
that is the end of the matter for purposes of §
that purpose the " end of the matter" is literally
true -- it is irrelevant that, as in this case, the state
courts also considered the merits of Williams' claims
(Pace, 544 U.S. at 413-14, reconfirming the principle
announced in Carey v. ...