United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Anguiano, an Illinois state prisoner, petitions for a writ of
habeas corpus. Doc. 1. The Warden has moved to dismiss the
petition, arguing that Anguiano failed to comply with the
one-year statute of limitations imposed by 28 U.S.C. §
2244(d)(1). Doc. 17. The motion is granted, the petition is
dismissed, and a certificate of appealability is denied.
was convicted of delivering a significant quantity of cocaine
and sentenced to fifteen years in prison. People v.
Anguiano, 2011 WL 10068767, at *1 ( Ill. App. Feb. 25,
2011) (reproduced at Doc. 17-3). The Appellate Court of
Illinois affirmed the conviction on February 25, 2011.
Id. at *5. Anguiano did not file a petition for
leave to appeal (“PLA”) with the Supreme Court of
Illinois. Doc. 1 at 3.
16, 2011, Anguiano filed a state post-conviction petition.
Doc. 17-4 at 12. The state trial court denied the petition,
and the state appellate court affirmed. People v.
Anguiano, 4 N.E.3d 483 ( Ill. App. 2013) (reproduced at
Doc. 17-7). Anguiano filed a PLA, Doc. 17-8, which the state
supreme court denied on January 28, 2015. People v.
Anguiano, 23 N.E.3d 1202 (Table) (Ill. 2015) (reproduced
at Doc. 17-9). On April 9, 2015, Anguiano filed a certiorari
petition with the United States Supreme Court. Doc. 23 at 4.
The certiorari petition was denied on October 5, 2015.
Anguiano v. Illinois, 136 S.Ct. 48 (2015).
December 23, 2015, Anguiano signed the present habeas
petition. Doc. 1 at 15.
2244(d)(1) provides that a “1-year period of limitation
shall apply to an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State
court.” 28 U.S.C. § 2244(d)(1). Subject to the
exceptions set forth in § 2244(d)(1)(B)-(D), which
Anguiano does not invoke and which do not apply here, §
2244(d)(1)(A) states that “[t]he limitation period
shall run from … the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A); see Gonzalez v. Thaler, 132 S.Ct.
641, 652 (2012) (“AEDPA establishes a 1-year
limitations period for state prisoners to file for federal
habeas relief, which ‘run[s] from the latest of'
four specified dates.”) (quoting 28 U.S.C. §
2244(d)(1)); Socha v. Boughton, 763 F.3d 674, 678
(7th Cir. 2014) (noting that the limitations period
“runs from the date when the judgment becomes final by
the expiration of the time for seeking direct review”).
In Illinois, a party seeking review of an adverse state
appellate court judgment has 35 days to file a PLA with the
state supreme court. See Ill. Sup. Ct. R. 315(b).
Because he did not file a PLA from the state appellate
court's decision on direct review, Anguiano's
conviction became final on April 1, 2011, which was 35 days
after the state appellate court's February 25, 2011
2244(d)(2) provides that “[t]he 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 subsection.” 28 U.S.C. §
2244(d)(2). Forty-four non-tolled days passed between April
1, 2011 and May 16, 2011, when Anguiano filed his
post-conviction petition and § 2244(d)(2) tolling
commenced. The Warden contends that the tolling ceased on
January 28, 2015, when the state supreme court denied
Anguiano's PLA. Doc. 17 at 4. Anguiano counters that the
Warden ignores “over 90 days of tolled time” that
should be credited due to his filing of a certiorari
petition. Doc. 23 at ¶ 5.
Warden is correct that § 2244(d)(2) tolling ceased on
January 28, 2015. As the Supreme Court explained in
Lawrence v. Florida, 549 U.S. 327 (2007):
[T]he statute of limitations is tolled only while state
courts review the application. … State review ends
when the state courts have finally resolved an application
for state postconviction relief. … The application for
state postconviction review is therefore not
“pending” after the state court's
postconviction review is complete, and § 2244(d)(2) does
not toll the 1-year limitations period during the pendency of
a petition for certiorari.
Id. at 332; see also Socha, 763 F.3d at 678
(holding that tolling “does not include the time during
which certiorari may be sought in the U.S. Supreme
Court”); Taylor v. Michael, 724 F.3d 806, 808
(7th Cir. 2013) (“[A] certiorari petition from
post-conviction review does not toll the time limit
or otherwise act as a grace period.”).
these tolling rules, Anguiano's petition must be
dismissed as untimely. As noted, 44 days of non-tolled time
elapsed between his conviction becoming final on April 1,
2011, and his filing of a state post-conviction petition on
May 16, 2011. An additional 328 days elapsed between the
state supreme court's January 28, 2015 denial of his
post-conviction PLA and his signing his federal habeas
petition on December 23, 2015, which the Warden deems and the
court will deem to be the filing date.[*] Thus, a total of 372 days (not
counting the day that the petition is deemed filed) of
non-tolled time elapsed between Anguiano's conviction
becoming final and the filing of his federal habeas petition,
rendering his petition untimely.
is one wrinkle. Both the Warden's motion to dismiss and
Anguiano's counseled post-conviction appellate court
brief identify May 16, 2011 as the date that Anguiano's
post-conviction petition was filed. Doc. 17 at 4; Doc. 17-4
at 12. Anguiano's habeas petition identifies that filing
date as May 9, 2011. Doc. 1 at 4. However, by not pressing
the May 9, 2011 date and implicitly accepting the May 16,
2011 date in responding to the motion to dismiss, Anguiano
forfeited the point. SeeG & S Holdings LLC
v. Cont'l Cas. Co.,697 F.3d 534, 538 (7th Cir.
2012) (“We have repeatedly held that a party waives an
argument by failing to make it before the district court.
That is true whether it is an affirmative argument in support
of a motion to dismiss ...