United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon, Judge
Johnson, a state prisoner, has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his 2009 conviction for aggravated battery of a
child in Madison County, Illinois, Case No. 07-CF-211.
Petitioner is serving a 29-year sentence imposed after a jury
trial. (Doc. 1, pp. 1-2). In the instant Petition, he raises
grounds including ineffective assistance of counsel,
misstatement of the law by the prosecutor in closing
argument, and prejudicial remarks by the trial court during
of the Rules Governing § 2254 Cases in United States
District Courts 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.” Because this Petition was filed
well beyond the applicable 1-year time limit for filing a
§ 2254 habeas action, it shall be dismissed pursuant to
his conviction, Petitioner took a direct appeal, raising
arguments that African- Americans were improperly excused
from the jury, the prosecutor improperly shifted the burden
of proof during closing argument, and the State failed to
prove the required mental state to support the conviction.
(Doc. 1-1, pp. 2-16). On November 9, 2010, the Illinois
Appellate Court, Fifth District, affirmed Petitioner's
conviction. (Doc. 1, p. 2; Doc. 1-1, pp. 1-16). Petitioner
did not seek leave to appeal from the Illinois Supreme Court,
nor did he file a petition for certiorari review
with the United States Supreme Court. (Doc. 1, p. 3).
April 9, 2012, he filed a petition in the trial court for
post-conviction relief, on the grounds that his trial and
appellate counsel provided ineffective assistance, and
raising other issues. (Doc. 1, pp. 3-4). The trial
court's order denying the post-conviction petition on
October 22, 2013, is attached as an exhibit. (Doc. 1-1, pp.
17-18). Petitioner appealed the trial court's denial, but
the Illinois Appellate Court affirmed the trial court's
ruling on September 7, 2016. (Doc. 1, p. 9; Doc. 1-1, pp.
27-28). On January 25, 2017, the Illinois Supreme Court
denied the petition for leave to appeal from the appellate
court's decision on that post-conviction matter. (Doc. 1,
p. 7; Doc. 1-1, p. 29 (referencing Appellate Case No.
made several other attempts in the trial court and on appeal
to challenge his conviction, all of which were unsuccessful.
On June 5, 2014, he filed a petition for relief from judgment
under 735 ILCS 5/2-1401, which was dismissed as untimely on
March 25, 2015. (Doc. 1, pp. 4, 10; Doc. 1-1, pp. 19-22).
Petitioner appealed that dismissal, but the appeal was
ultimately dismissed on February 22, 2017. (See Doc.
1-1, p. 30).
April 6, 2015, he filed a motion in the trial court for leave
to file a successive post-conviction petition; it was denied
on April 15, 2015. (Doc. 1, p. 5; Doc. 1-1, pp. 23-26; 30).
Petitioner appealed, and the appeal of that matter was
consolidated with his appeal from the March 25, 2015,
dismissal of the 2-1401 petition. (Doc. 1, pp. 5-6;
See Doc. 1-1, p. 30). The consolidated appeal
(Appellate Case No. 5-15-0127) was dismissed on February 22,
2017, after Petitioner requested dismissal on the advice of
counsel. (Doc. 1, pp. 6, 11; See Doc. 1-1, p. 30).
on February 23, 2017, Petitioner filed another request for
leave to file a successive post-conviction petition. (Doc.
1-1, pp. 30-33). On March 1, 2017, the trial court denied
that petition. Id.
instant Petition was submitted for filing on March 12, 2017
(Doc. 1, p. 18).
considering the merits of the instant Petition, the Court
must first determine whether the application for habeas
corpus relief is timely. Under 28 U.S.C. § 2244(d)(1), a
petitioner has a 1-year period in which to file an
application for a writ of habeas corpus. That time limitation
begins to run on 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