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Nichos v. IDOC Director

United States District Court, S.D. Illinois

January 4, 2017

DEMETRIUS M. NICHOLS, No. N-61355, Petitioner
v.
IDOC DIRECTOR, and KIMBERLY BUTLER Defendants.

          MEMORANDUM AND ORDER HERNDON,

          Herndon District Judge

         Introduction

         Petitioner 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.[1] Petitioner is challenging a March 2011 conviction for aggravated battery on a correctional officer.

         This 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).

         The 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 210.

         Filing Fee

         On 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.

         Applicable Legal Standards

         28 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 latest of:

(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.

         The 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 ...


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