United States District Court, S.D. Illinois
DEMETRIUS M. NICHOLS, No. N-61355, Petitioner
IDOC DIRECTOR, and KIMBERLY BUTLER Defendants.
MEMORANDUM AND ORDER HERNDON,
Herndon District Judge
Demetirus M. Nichols, an inmate in the custody of the
Illinois Department of Corrections and currently housed at
Menard Correctional Center, brings this action for a writ of
habeas corpus pursuant to 28 U.S.C. §
2254. Petitioner is challenging a March 2011
conviction for aggravated battery on a correctional officer.
matter is now before the Court for a preliminary review of
the § 2254 Petition pursuant to Rule 4 of the Rules
Governing § 2254 Cases in United States District Courts.
Rule 4 provides that upon preliminary consideration by the
district court judge, “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
petitioner.” District courts are permitted to consider,
sua sponte, the timeliness of a prisoner's
motion to vacate. See Day v. McDonough, 547 U.S.
198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006).
state will not be required to answer the Petition at this
time because, as is explained more fully below, the Petition
appears to be untimely. However, before dismissing the
Petition on that ground, the Court will allow Petitioner the
opportunity to respond to this Order and to show cause why
the Petition should not be dismissed. See Id. at
October 17, 2016, Petitioner's motion for leave to
proceed in forma pauperis (“IFP”) was denied.
(Doc. 4). Petitioner was ordered to pay the $5.00 filing fee
no later than November 16, 2016. To date, the fee has not
been paid. The Court will allow an extension with regard to
payment of the $5.00 filing fee. Petitioner must pay the
filing fee on or before February 2, 2017. Petitioner is
warned that failure to pay the fee shall result in dismissal
of this action for failure to prosecute.
U.S.C. § 2244 creates a one-year limitation period for
filing a petition for writ of habeas corpus. Under 28 U.S.C.
§ 2244(d)(1), a person convicted in state court must
file his federal habeas petition within one year of the
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
one-year statute of limitations is tolled during the pendency
of a “properly-filed” state postconviction
petition. 28 U.S.C. § 2244(d)(2). The one-year statute
of limitations is also “subject to equitable tolling in
appropriate cases.” Holland v. Florida, 130
S.Ct. 2549, 2560 (2010). Equitable tolling applies only where
the petitioner shows “‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Holland, 130 S.Ct.
at 2562, citing Pace v, DiGuglielmo,125 S.Ct. 1807,
1814 (2005). The Supreme ...