Opinion
01 C 4071
January 2, 2002
Lonnie Arsberry seeks habeas corpus. The Warden has moved to dismiss on untimeliness grounds. Arsberry wants time to reply, and seeks an extension to do legal research. I deny the motion for an extension. The legal research he would do is quite narrow, and we have done it for him. For the same reason, I deny "his motion for appointed counsel. It has to do with the tolling of the time limits under the AEDPA. There is a governing precedent in this Circuit which has not been questioned or overruled. Fernandez v. Sternes, 227 F.3d 977 (7th Cir. 2000). Under that precedent, the one-year statute of limitations is tolled whenever state remedies are being properly pursued. Arsberry did pursue the usual course of appeals, and the string ran out on October 20, 1997. He waited to file leave to appeal for a period of three months plus before he filed a late notice. He loses that time to the statute of imitations. He would lose more if the Illinois Supreme Court had not allowed the late filing which tolls the statute from the date of the filing. It started running again on June 3, 1998 when the petition for leave to appeal was denied. He sought a writ of habeas corpus on October 28, 1998 which, arguably, stopped the running of time. But he lost almost five months. So he was about eight months into the limitations period before the habeas case started. It ended on May 31, 2000 and the period starts running. He waited just short of twelve months to file in this court. He did not have twelve months to spare. He had only the four months and he waited too long. There are other Courts of Appeal that have decided this question differently from our Circuit. The most recent Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000) would, I think, not help his cause. But this is of no moment, because I am bound by Fernandez and, under that precedent, his petition here is untimely.
I note here that the petition is unpromising on the merits. He is rehearsing issues raised on appeal which are clearly not constitutional in dimension. See People v. Arsberry, 242 Ill. App.3d 1034 (1993). This fact was explicitly noted by the Appellate Court in its unpublished order dealing with his post-conviction proceedings. But even if there were some hidden merits in the petition, it is filed too late and it is dismissed.
The motion for extension of time to reply is denied.
The motion for appointment of counsel is denied.
The petition for a writ of habeas corpus is dismissed.