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McCurtis v. Burke

United States District Court, N.D. Illinois, Eastern Division

October 25, 2017

MAGGIE BURKE, Respondent.


          John J. Tharp, Jr. United States District Judge

         Delilah McCurtis was convicted in Illinois state court of first degree murder. Although direct appellate review of her conviction ended in February 2013, McCurtis never filed a state post-conviction petition and did not file this federal habeas petition until July 2016. Because her claims are untimely under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), and are also procedurally defaulted, her petition is denied.

         I. Background [1]

         In October 2005, Latoya Jones died as the result of four stab wounds to the back. People v. McCurtis, 2012 IL App (1st) 103157-U, ¶ 2 (Ill.App.Ct. 2012). It was undisputed that the petitioner, Delilah McCurtis, and Jones engaged in a fight that evening and McCurtis admitted during her trial testimony that during the fight she struck Jones with a knife at least once. Id. ¶ 7.

         McCurtis was charged with the first degree murder of Jones; at trial the jury was also instructed on second degree murder based both on sudden and intense passion based on serious provocation and on unreasonable self-defense. Id. ¶ 8. The jury convicted McCurtis of first degree murder and the trial judge sentenced her to 27 years in prison. Id. ¶¶ 8-10. McCurtis appealed the verdict, arguing that the trial court had erroneously allowed multiple inconsistent statements by various witnesses, and appealed her sentence, which she argued was excessive. Id. ¶ 2. The appellate court affirmed her conviction and sentence. Id. McCurtis then filed a petition for leave to appeal with the Illinois Supreme Court seeking review only of the evidentiary issue. See Ex. E, Pet. for Leave to Appeal, ECF No. 14-5. The petition was summarily denied on November 28, 2012. See People v. McCurtis, 981 N.E.2d 1001 (Ill. 2012). McCurtis did not file a petition for certiorari with the United States Supreme Court or any state court post-conviction petition. See Pet. at 2-3, ECF No. 1.

         On July 29, 2016, McCurtis filed this pro se habeas petition alleging four grounds for relief. First, McCurtis alleges that the trial court erroneously allowed the victim's mother to testify (and to disrupt the courtroom proceedings on one occasion). Second, she argues that her trial counsel was ineffective for a laundry list of reasons. Third, she advances a claim that takes issue in some fashion with the trial court's response to a jury question concerning the second degree murder instruction (this is also included as part of her ineffective assistance claim). And fourth, she renews her evidentiary argument that multiple inconsistent statements were improperly introduced.

         II. Analysis

         In its response, the state provides three grounds why McCurtis's petition should be dismissed. First, it argues that her petition is untimely. Second, it argues that her claims are procedurally defaulted and that default should not be excused. Third, it argues that two of her claims-relating to the testimony of the victim's mother and the resolution of a jury question- are not cognizable. Because the Court finds that McCurtis's claims are both untimely and procedurally defaulted, it does not reach the cognizability arguments.

         1. McCurtis's claims are time-barred and she has not demonstrated that the limitations period should be equitably tolled.

         AEDPA imposes a one year statute of limitations. 28 U.S.C. § 2244(d)(1). The state argues, and McCurtis does not contest, that the statute of limitations began running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). McCurtis's judgment became final when the time to file a petition for certiorari expired in the United States Supreme Court. Jones v. Hulick, 449 F.3d 784, 787 (7th Cir. 2006). Thus, McCurtis's conviction became final on February 26, 2013 (90 days after the Illinois Supreme Court denied her petition for leave to appeal). Therefore, McCurtis's window to file a timely federal habeas petition expired on February 26, 2014.[2]

         McCurtis filed this federal habeas petition on July 29, 2016, well after the statute of limitations had run. In response to this Court's show cause order asking why her petition should not be dismissed as untimely (ECF No. 8), McCurtis filed a short reply stating that in 2013 “all my legal transcript and paper work I needed in order to filed a successful habeas corpus petition were misplaced due to the 60 miles trip from Dwight Correctional Center to Logan Correctional Center.” See Rule to Show Cause, ECF No. 10. McCurtis attached documentation showing she had arrived at Logan on March 14, 2013. See Id. at 5. She also attached an affidavit from a paralegal law clerk indicating that all women at Dwight Correctional Center had been transferred to Logan sometime in 2013. See Id. at 7. McCurtis submitted no evidence beyond her own claim that the papers were lost, and provided no more detail about what paperwork was lost. McCurtis admits that she never submitted a grievance regarding her lost legal papers. See Reply at 1, ECF No. 18. She contends, however, that she “has written to the Circuit Clerk and public defender offices of her county” and that “due to extreme heavy caseload and cases it was difficult for her to receive the necessary tools to set forth a best defense for herself.” Id.

         A petitioner is entitled to equitable tolling only if she demonstrates both that “some extraordinary circumstance” prevented her from timely filing her habeas petition and she diligently pursued her rights during that time. Holland v. Florida, 560 U.S. 631, 649 (2010). McCurtis has the burden of proving that she is entitled to equitable tolling. Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008). For many years in this circuit, equitable tolling was nearly nonexistent. See Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003) (“We rarely deem equitable tolling appropriate-in fact, we have yet to identify a circumstance that justifies equitable tolling in the collateral relief context.”). In recent years, however, the Seventh Circuit has explained that equitable tolling is not a “chimera” existing only in the imagination of law professors. Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014) (Socha II). The Seventh Circuit has recently held that “intentional confiscation of a prisoner's habeas corpus petition and related legal papers” is an extraordinary circumstance that could justify equitable tolling. Weddington v. Zatecky, 721 F.3d 456, 464 (7th Cir. 2013). McCurtis here has not alleged that her legal papers were intentionally taken from her, merely that they were misplaced when she was transferred, so Weddington is not controlling on the question of whether the temporary loss of access to her papers constitutes a circumstance sufficiently “extraordinary” to qualify for equitable tolling, but in any event the state has focused not on that question but rather on the second prong - whether McCurtis was diligent in her efforts to overcome that impediment.

         To qualify for equitable tolling, it is McCurtis's burden to show that she exercised “reasonable diligence, ” Holland, 560 U.S. at 653, in pursuing her claim “despite the obstacle.” Kingston, 538 F.3d at 734. For example, in Holland, the petitioner had sent his lawyer “many letters” including some noting the applicable legal rules, but the lawyer still failed to file a timely petition. Id. Similarly, in Socha II, the petitioner “repeatedly” wrote to his lawyer, contacted the public defender when he did not get responses from his lawyer, and notified the district court before his time to file expired that he wanted to preserve his habeas rights and needed more time. 763 F.3d at 687. Simply asking for help or documents, however, is not always enough - for example, waiting a year to inquire about the status of a motion is not reasonable diligence. United States v. Davis, No. 13 C 50360, 2014 WL 1047760, at *7 (N.D. Ill. Mar. 18, 2014). An inmate must take steps to ensure she does not become one of “the many cases in which a tardy petitioner puts nothing before the court and only later asks for equity to be exercised” in her favor. Socha II, 763 F.3d at 688.

         Here, McCurtis has failed to meet her burden to demonstrate that she was diligent in pursuing her habeas claim. Though she has provided evidence to buttress her claim that she was transferred to a different facility in March 2013, she has not provided any evidence demonstrating how long, and over what specific period, she was without access to those papers. She provides no information about how many times she contacted her lawyer or the state court, or whether or not those communications were made within the statute of limitations period. If McCurtis did not begin her attempts to recover her legal paperwork until after February 26, 2014, she would not be entitled to equitable tolling in any event because the statute of limitations would already have run. Further, her contention that she was diligent in seeking the recovery of her papers is belied by her admission that she never filed a grievance with the prison over the missing documents. Relatedly, McCurtis provides no information to the Court about when, or how, she recovered her legal papers, although clearly at some point she did because she attached a number of transcripts to her petition. See Pet., ECF No. 9. If she recovered her papers more than a year before she filed her petition, her inability to access would not account for her failure to timely file her petition. Given her failure to provide any information about how long she was without her papers, or what she did to recover them, or when they were located, McCurtis ...

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