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Conway v. Jaimet

United States District Court, S.D. Illinois

December 8, 2017

BILL CONWAY, Petitioner,
v.
KAREN JAIMET, WARDEN, Respondent.

          MEMORANDUM AND ORDER

          HERNDON, District Judge

         On 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 granted.

         Relevant Facts and Procedural History

         In July 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).

         After 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).

         Petitioner 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).

         Timeliness of Petition

         28 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.

         Respondent 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.

         Petitioner 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 forth.

         Petitioner 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.

         Petitioner's Mental Health Records

         Petitioner 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, [1] adjustment disorder, [2] and borderline intellectual functioning.[3]

         Court-Ordered ...


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