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Foster v. Smith

United States District Court, C.D. Illinois, Rock Island Division

March 30, 2017

CLIFFORD C. FOSTER, Petitioner,
v.
KIM SMITH, Respondent.

          ORDER

          SARA DARROW, UNITED STATES DISTRICT JUDGE

         Before the Court are Respondent's motion to dismiss Petitioner Foster's 28 U.S.C. § 2254 application, ECF No. 11, Foster's motion for status, ECF No. 15, and Foster's motion for summary judgment, ECF No. 16. For the following reasons, the motion to dismiss is GRANTED and Foster's petition DISMISSED. The other motions are MOOT. In addition, a certificate of appealability shall not issue.

         BACKGROUND[1]

         Foster was convicted in 2004, in Bureau County, Illinois, of predatory criminal sexual assault of a child. He was sentenced by the Illinois circuit court to a term of fourteen years and two months of incarceration.[2] The judgment was affirmed by the Appellate Court of Illinois, and on November 29, 2007, the Illinois Supreme Court denied Foster's petition for leave to appeal. Foster never petitioned the United States Supreme Court for a writ of certiorari.

         On September 24, 2008, Foster filed a petition for postconviction relief in Illinois circuit court. The next day, September 25, 2008, the court denied the petition. Foster did not appeal this denial.

         Foster once tried to file a successive postconviction petition in Illinois court. He did so on June 14, 2013, and was denied leave. This judgment was affirmed on appeal.

         He filed his instant and first federal petition for postconviction relief pursuant to 28 U.S.C. § 2254 in this Court on April 11, 2016. ECF No. 1. Respondent, after being directed to respond, did so in the form of a motion to dismiss on June 17, 2016.

         DISCUSSION

         I. Legal Standard on a Petition for Issuance of Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254

         District courts may entertain applications for the writ of habeas corpus by persons in custody of a State in violation of the Constitution. 28 U.S.C. § 2254(a). The writ shall not issue to a person in custody pursuant to the judgment of a State court unless it appears that the applicant has exhausted his available remedies in the State's courts, there is an absence of corrective process available from the State, or circumstances render that process ineffective to protect the applicant's rights. Id. § 2254(b)(1). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a 1-year time period in which a state prisoner may file a federal habeas petition, running from 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 ...

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