United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY McDADE United States Senior District Judge
matter is before the Court on a Motion to Dismiss Habeas
Corpus Petition as Untimely filed by Respondent Cameron
Watson. (Doc. 5). For the reasons stated below, the motion is
2009, Petitioner John McCottrell was convicted of armed
robbery with a dangerous weapon and aggravated battery, in
violation of Illinois law, in the Tenth Judicial Circuit
Court, Peoria County, Illinois. The State of Illinois v.
John Earl McCottrell, 08-cf-00102-1; see People v.
McCottrell, 2017 IL App (3d) 140477-U (unpub.),
appeal denied, No. 122281, 2017 WL 4386390 (Ill.
Sept. 27, 2017). On November 15, 2010, the Illinois Appellate
Court affirmed McCottrell's convictions and modified his
sentence. Id. at ¶ 23. Petitioner did not seek
further review with the Illinois Supreme Court. (Doc. 1 at
February 26, 2014, McCottrell filed a petition for
post-conviction relief with the state trial court alleging
that (1) trial counsel was ineffective for failing to object
to his arrest on Fourth Amendment grounds and for failing to
sufficiently argue reasonable doubt, (2) the trial court
erred in failing to conduct a hearing regarding his fitness
to stand trial, and (3) appellate counsel was ineffective for
failing to raise the issues on direct appeal. The trial court
dismissed all arguments as frivolous and patently without
merit. McCottrell, 2017 IL App (3d) 140477-U.
appealed, arguing that the trial court erred in denying his
petition at the first stage of postconviction
proceedings. Id. He also claimed that the
trial court and the circuit clerk improperly assessed various
fines and fees against him. Id. On March 14, 2017,
the Illinois Appellate Court addressed the merits of
McCottrell's post-conviction claims and affirmed the
trial court's summary dismissal, as modified.
Id. On September 27, 2017, the Illinois Supreme
Court denied McCottrell's petition for leave to appeal.
People v. McCottrell, No. 122281, 2017 WL 4386390,
at *1 (Ill. Sept. 27, 2017).
December 7, 2017, McCottrell filed a federal petition for
writ of habeas corpus under 28 U.S.C. § 2254 raising ten
grounds for relief. (Doc. 1). On January 2, 2018, the
Respondent filed a Motion to Dismiss McCottrell's
petition as untimely. (Doc. 5). After being granted four
extensions of time to file a response, Petitioner filed a
response on March 28, 2018, asking this Court to equitably
toll the statute of limitations. (Doc. 11). As will be
discussed below, there is no basis to equitably toll the
statute of limitations in this case, and McCottrell's
petition is dismissed as untimely.
courts are empowered by 28 U.S.C. § 2254 to entertain
writs of habeas corpus on behalf of state prisoners on the
ground that they are imprisoned in violation of the
Constitution or laws or treaties of the United States. The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) states that “[a] 1-year period of
limitation shall apply to an application for writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court.” § 2244(d)(1). The one-year
limitations period begins to run from the latest of
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” § 2244(d)(1)(A).
Supreme Court Rule 315(b) provides 35 days from the entry of
the appellate court judgment for filing a petition for leave
to appeal to the Illinois Supreme Court. Ill. S.Ct. R.
315(b); see Heilman v. Hardy, 849 F.Supp.2d 796, 799
(C.D. Ill. 2012). The Illinois Appellate Court affirmed
McCottrell's sentence on November 15, 2010, and
Petitioner did not seek further review in the Illinois
Supreme Court. (Doc. 1 at 2). Thus, the judgment in
McCottrell's case became final on December 20, 2010, when
the time for seeking review in the Illinois Supreme Court
expired. McCottrell's one year-period of limitations for
filing a § 2254 petition therefore lapsed on December
20, 2011-long before McCottrell filed the instant petition.
2254 petitions are subject to certain tolling provisions, one
of which might appear to be applicable in this case: “A
properly filed petition for postconviction relief in state
court tolls the one-year statute of limitations for filing a
§ 2254 petition.” Martinez v. Jones, 556
F.3d 637, 638 (7th Cir. 2009) (citing § 2254(d)(2)).
“A collateral attack filed in state court is not
‘properly filed' if it is untimely under state law,
unless the state court decides not to enforce its timeliness
rules.” Johnson v. Chandler, 225 F.App'x
515, 517 (7th Cir. 2007) (citing Brooks v. Walls,
279 F.3d 518, 520-21 (7th Cir. 2002)). In other words,
“if the state decides not to enforce its timeliness
rules, and considers on the merits a petition that could have
been dismissed as untimely, then we treat that petition as
‘properly filed' for purposes of §
2244(d)(2).” Brooks, 279 F.3d at 521.
Court observes that McCottrell's state court petition for
post-conviction relief was untimely under Illinois law.
See 725 Ill. Comp. Stat. Ann. 5/122-1 (prescribing a
6-month limitations period for post-conviction petitions in
noncapital cases from the date for filing a petition for writ
of certiorari with the United States Supreme Court
“unless the petitioner alleges facts showing that the
delay was not due to his or her culpable negligence.”);
see People v. Green, 2011 IL App (1st) 093097-U,
¶ 26 ( Ill. App. 1st Dist. 2011). Nevertheless, the
state courts dismissed McCottrell's petition for
post-conviction relief on the merits.
even if McCottrell's state court petition for
post-conviction relief was “properly filed” for
purposes of § 2244(d)(2), there is still one problem:
the one-year limitations period under § 2244(d) expired
long before McCottrell filed his state court petition for
post-conviction relief. In other words, there was no time
left to toll. As previously stated, McCottrell's
conviction and sentence became final on December 20, 2010, so
the statute of limitations for filing his § 2254
petition ran out on December 20, 2011. McCottrell had no
application for collateral review pending in state court
between December 20, 2010 and December 20, 2011, so the
federal limitations period lapsed unabated. As such, his
current § 2254 petition is nearly six years too late.
See Teas v. Endicott, 494 F.3d 580, 582-83 (7th Cir.
2007) (“[T]he time under § 2244(d)(1)(A) had
expired long before Teas filed his federal petition-and,
because no application for collateral review was
“pending” in state court between January 2002 and
March 2005, the tolling rule of § 2244(d)(2) does not
make the federal petition timely.”); Nichols v.
IDOC Dir., No. 16-CV-01101-DRH, 2017 WL 59086, at *3
(S.D. Ill. Jan. 4, 2017) (state court petitions for
post-conviction relief were “irrelevant for tolling
purposes because they were filed after the one-year statute
of limitations for filing . . . § 2254 petition[s] had
already expired.”); Dunn v. Pfister, No. 15 C
4508, 2016 WL 1128381, at *2 (N.D. Ill. Mar. 23, 2016)
(collateral relief filed with Illinois state court was
“irrelevant for tolling purposes” because
petitioner “filed the state habeas petition after the
one-year statute of limitations for filing his § 2254
petition had already expired.”).
there is no time left to toll, McCottrell's contention
that his federal statute of limitations should be equitably
tolled is inapposite. But even if equitable tolling
could apply to this case, it would not save
McCottrell's otherwise untimely petition. The Supreme
Court has explained that “a petitioner is entitled to
equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some