United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON, District Judge
March 28, 2016, Bill Conway (Petitioner) filed a petition
under 28 U.S.C. § 2254 in this Court, conceding the
filing was untimely. (Doc. 1). The Court dismissed it without
prejudice for failure to name the proper respondent and
appointed the Federal Public Defender to represent
Petitioner. (Doc. 4). Petitioner timely filed an Amended
Petition, asserting (1) his trial counsel was ineffective for
failing to investigate his mental condition and (2) his
guilty plea was not knowing or voluntary. (Doc. 16).
Respondent filed a Motion to Dismiss Petitioner's §
2254 as untimely, (Doc. 24), and Petitioner responded,
arguing he is entitled to equitable tolling, (Doc. 25). For
the following reasons, Respondent's Motion to Dismiss is
Facts and Procedural History
2004, Petitioner was indicted in the Circuit Court of Cook
County, Illinois on two counts of solicitation of murder, two
counts of solicitation of murder for hire, and one count of
attempted first-degree murder. In November 2004, a second
indictment charged Petitioner with three counts of
solicitation of murder, three counts of solicitation of
murder for hire, and three counts of attempted first-degree
murder. (Doc. 16, p. 1).
holding two competency hearings, the court found Petitioner
fit to stand trial. On May 8, 2007, Petitioner entered into a
negotiated plea of guilty and was convicted of three counts
of solicitation of murder for hire and one count of attempted
first-degree murder. The remaining counts were dismissed.
Petitioner received twenty-year sentences for each
solicitation count, to run concurrently, and a ten-year
sentence for the attempted murder count, to run consecutive
to the solicitation sentences. (Doc. 16, p. 2).
did not file a direct appeal, but filed a post-conviction
petition under Illinois' Post Conviction Hearing Act, 725
ILCS 5/122-2 (West 2008), on May 21, 2009. The Illinois State
Court dismissed the petition, and Petitioner appealed to the
Illinois Appellate Court, which affirmed the dismissal.
Petitioner did not appeal to the Supreme Court of Illinois.
Petitioner also filed unsuccessful post-conviction motions in
2014, including a Petition for Relief from a Void Judgment
and a House Bill Sentence Reduction Motion. (Doc. 16, pp.
2-5). Petitioner filed his § 2254 Petition pro
se in March 2016, (Doc. 1), and filed the instant
Amended Petition in July 2017, (Doc. 16).
U.S.C. § 2254 permits persons in custody pursuant to a
state court judgment to bring a petition for a writ of habeas
corpus “on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). A petitioner
must file a § 2254 within one year 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
exercise of due diligence.
28 U.S.C. § 2244.
asserts that (A) is the only applicable subsection to
Petitioner's claim. Petitioner entered his guilty plea
and was sentenced on May 8, 2007, and had thirty days to file
a direct appeal. Il. Sup. Ct. R. 604(d). His conviction
became final on June 7, 2007, which is the last date he could
have appealed his sentence or moved to withdraw his guilty
plea. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012)
(A judgment becomes final for purposes of § 2244 at the
expiration of the time for seeking direct review in state
court.). Therefore, the limitations period for filing a
§ 2254 Petition expired one year later on June 7, 2008.
suggests, on the other hand, that (D) may also be applicable,
(Doc. 16, p. 30), but admits the argument “is not
central to or necessary for Petitioner's assertion of
cause or equitable tolling, ” He admits that the
petition was late even if (D) applied. (Doc. 25, p. 4). Thus,
the Court will adopt the limitations period Respondent sets
ultimately concedes his § 2254 is untimely, (Doc. 16,
pp. 14, 30), but asserts he is entitled to equitable tolling
because his mental limitations prevented him from
understanding and acting upon his legal rights.
Mental Health Records
attests he is illiterate, he could not afford to pay anyone
to assist in filing his claim, the prison library was not
helpful, and his medications for mental and emotional
problems hindered his ability to timely file. (Doc. 16, Ex.
6). Petitioner's medical records include diagnoses of
depressive disorder, schizoaffective disorder,  adjustment
disorder,  and borderline intellectual