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Johnson v. Jaimet

United States District Court, S.D. Illinois

May 23, 2017

BRANDON JOHNSON, # K-92784, Petitioner,
v.
KAREN JAIMET, Respondent.

          MEMORANDUM AND ORDER

          David R. Herndon, Judge

         Brandon 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 sentencing.

         Rule 4 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 Rule 4.

         The Petition

         Following 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).

         On 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.[1] (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. 5-13-0554)).

         Petitioner 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).

         On 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).

         Next, 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.

         The instant Petition was submitted for filing on March 12, 2017 (Doc. 1, p. 18).

         Discussion

         Before 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 ...

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