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Johnson v. Phister

United States District Court, C.D. Illinois, Springfield Division

October 4, 2016

JERROLD JOHNSON, Petitioner,
v.
RANDY PHISTER, Respondent.

          OPINION

          Richard Mills United States District Judge.

         Jerrold Johnson has filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus. Also pending is the Respondent's Motion for Summary Judgment.

         I. BACKGROUND

         In the Circuit Court of Adams County, Illinois, Petitioner Jerrold Johnson was convicted of armed robbery and sentenced to life imprisonment. The appellate court affirmed the Petitioner's conviction and sentence. The Petitioner filed a petition for leave to appeal (PLA), which the Illinois Supreme Court denied on September 29, 2010.

         The 90-day period for seeking certiorari from the United States Supreme Court under Supreme Court Rule 13 ended on December 28, 2010, with the Petitioner filing a writ of certiorari.

         Eighty days later, on March 18, 2011, the Petitioner filed a state post-conviction petition. The state petition was dismissed. The Petitioner appealed and the appellate court was affirmed.

         Subsequently, the Petitioner filed a post-conviction PLA which was denied by the Illinois Supreme Court on September 24, 2014.

         It was 328 days after the Illinois Supreme Court's denial of his PLA-on August 18, 2015-that Petitioner mailed his Petition under § 2254 to this Court.

         In May 2015, more than two months before the Petitioner filed a federal habeas corpus petition, he wrote this Court and unsuccessfully requested a prospective extension of the statutory limitation period for filing such a petition. In that request, the Petitioner asserted his belief that, absent an extension, his federal petition would be due on September 24, 2015-i.e., one year after the Illinois Supreme Court denied review in his state post-conviction action.

         II. LEGAL DISCUSSION

         The Respondent contends that the petition under § 2254 is untimely pursuant to the one-year limitations period in 28 U.S.C. § 2244(d)(1). The statute provides four triggering dates for calculating the limitations period. Because the Petitioner's allegations do not suggest a later starting date under § 2244(d)(1)(B)-(D), the Court concludes the one that is applicable here is “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). Section 2244(d)(2) tolls the period while a properly filed collateral attack is pending in state court.

         In this case, the Petitioner's conviction became final when the 90-day period for seeking certiorari on direct review expired: December 28, 2010. See Lozano v. Frank, 424 F.3d 554, 555 (7th Cir. 2005) (conviction became final when the time for filing a certiorari petition expired). From December 29, 2010 through March 17, 2011, 79 days elapsed without any tolling.

         The Petitioner stopped the clock under § 2244(d)(2) by filing a post-conviction petition on March 18, 2011. Post-conviction proceedings concluded on September 24, 2014, when the Illinois Supreme Court denied the Petitioner's post-conviction PLA. See Lawrence v. Florida, 549 U.S. 327, 331-36 (2007) (no tolling during the 90-day period for seeking certiorari after highest state court denies post-conviction relief).

         The federal petition was mailed 328 days later, on August 18, 2015. When the 79 days that had already elapsed between the end of direct review and the start of post-conviction review are added, the result is that the ...


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