United States District Court, S.D. Illinois
JAY A. HANKS, No. Y12369, Petitioner,
KIMBERLY SMITH, and JOHN BALDWIN, Defendants.
MEMORANDUM AND ORDER
R. Herndon United States District Judge
se Petitioner Jay A. Hanks, currently incarcerated at
Taylorville Correctional Center, has filed a Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges two 2016 Illinois state convictions
(Madison County Circuit Court Nos. 15-CF-885 and 15-CF-886).
Petitioner raises the following grounds of relief: (1) His
guilty pleas were not knowing and voluntary; (2) his trial
counsel afforded ineffective assistance; and (3) his Sixth
Amendment right to a speedy trial was violated.
case is now before the Court for a preliminary review of the
Petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in United States District Courts. Rule 4 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.” After carefully reviewing the Petition,
the Court concludes that this action must be dismissed.
was arrested on April 15, 2015, and charged with seven counts
of aggravated assault (Case No. 15-CF-885), as well as four
counts of child pornography and one count of armed violence
(Case No. 15-CF-886). (Doc. 1-1, p. 9). On March 23, 2016,
Petitioner pled guilty, pursuant to a negotiated plea
agreement, to two counts of aggravated assault (15-CF-885)
and one count of child pornography (15-CF-886). (Doc. 1, pp.
1-3, 12, 16-17; Doc. 1-1, p. 9). Petitioner admits that he
did not file a direct appeal in either case. (Doc. 1, p. 3).
According to Petitioner, the negotiated plea agreement
“prohibited” direct appeals. Id.
2017, Petitioner sought leave to file a habeas petition in
the Illinois Supreme Court, but this request was denied.
(Doc. 1, pp. 3, 8). In September 2017, Petitioner filed
post-conviction petitions, collaterally attacking his
convictions, in both actions. (Doc. 1, pp. 2, 5, 11). On
October 6, 2017, the circuit court dismissed the
post-conviction petitions, concluding they were frivolous and
patently without merit. Petitioner appealed the dismissals
(Illinois Court of Appeals, Fifth District, Docket No.
5-17-045). (Doc. 1, p. 7). That appeal, wherein Petitioner is
represented by the state appellate defender's office, is
presently pending. (Doc. 1, pp. 7-8, 11).
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) establishes a one-year limitations
period for state prisoners to file a writ of habeas corpus in
federal court. 28 U.S.C. § 2244(d)(1). The one-year
period begins to run on the latest of the following dates:
(A) the completion of direct appeal (or expiration of time to
bring the direct appeal); (B) the removal of an
unconstitutional, state-created impediment that had
previously prevented the filing of the petition; (C) the
recognition of a new constitutional right that has been made
retroactive on collateral review by the Supreme Court of the
United States; or; (D) the date on which the factual
predicate of the claim could have been discovered through due
diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). The one-year
period is tolled when Petitioner's properly-filed
application for post-conviction or other collateral relief is
pending in the state courts. 28 U.S.C. § 2244(d)(2).
relevant provision here is § 2244(d)(1)(A). Petitioner
was sentenced before the Circuit Court of Madison County on
March 23, 2016. Petitioner had thirty days from that date to
file a motion to withdraw his plea. Petitioner did not file a
motion to withdraw his plea within the thirty-day
window. Thus, for purposes of §
2244(d)(1)(A), Petitioner's conviction became final on
Friday, April 22, 2016, the last date on which he could have
filed, but did not file, a motion to withdraw his guilty
plea. See Gonzales v. Thaler, 565 U.S. 134, 150
(2012); Jimenez v. Quarterman, 555 U.S. 113, 119
(2009); Carey v. Saffold, 536 U.S. 214, 223
(2002). This means that the one-year statute of
limitations period on this Petition began to run on April 23,
2016, and Petitioner's § 2254 filing was due one
year later, on April 23, 2017. See Fed. R. Civ.
P. 6(a); Newell v. Hanks, 283 F.3d 827, 833 (7th
Cir. 2002) (applying “anniversary method” of
calculating limitations period). The instant Petition was
filed on May 31, 2018. Thus, unless the one-year limitation
period was tolled, the Petition is untimely and must be
some circumstances, the one-year limitation period is tolled.
According to 28 U.S.C. § 2244(d)(2), “[t]he time
during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
filed post-conviction petitions in his underlying criminal
cases (filed with the Madison County Circuit Court on
September 25, 2017/currently pending on appeal) and sought
leave to pursue a habeas corpus action with the Illinois
Supreme Court (filed June 27, 2017). However, these state
court proceedings were commenced after the statute
of limitations for filing a § 2254 petition had lapsed
(April 23, 2017). Accordingly, they did not toll
Petitioner's one-year limitations period. See De
Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009)
(state proceeding that does not begin until after limitations
period expires termed “irrelevant”). Further,
there is no indication that Petitioner is entitled to
equitable tolling. See Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005); Socha v. Boughton, 763 F.3d 674,
684 (7th Cir. 2014). Accordingly, the Petition must be
dismissed as untimely.
foregoing reasons, the Petition is dismissed with prejudice
because it is time barred. See 28 U.S.C. §
Court declines to issue a certificate of appealability under
Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts. Petitioner cannot make a
substantial showing of the denial of a constitutional right;
nor can he show that reasonable jurists would debate, much
less disagree, with this ...