Opinion
No. 98 C 3203
March 6, 2003
OPINION
After being convicted of first degree murder and attempted murder, petitioner Darren Evans is currently serving his sentence at the Stateville Correctional Center in Joliet, Illinois. Evans filed a Petition for Writ of Habeas Corpus which I dismissed without prejudice on June 30, 1998. After exhausting his available state court remedies, Evans moved to reinstate the petition on June 2, 2002 and subsequently filed an amended petition. The government now moves to dismiss this amended petition on the ground that it is untimely pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Section 2244(d) provides for a one-year statute of limitations for the filing of habeas corpus petitions pursuant to § 2244. Subsequent to the enactment of the AEDPA, the Seventh Circuit recognized a one-year grace period with regard to § 2244(d). Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997). Pursuant to Lindh, a petitioner whose conviction became final before the enactment of the AEDPA may file a Petition for Writ of Habeas Corpus even after the one-year limitations period, provided that the petition was filed by April 24, 1997. However, this grace period does not apply to Evans because "the conclusion of direct review" of his case occurred on April 29, 1997, ninety days after the Illinois Supreme Court denied the petition for leave to appeal and thus the date on which a petition for writ of certiorari in the United States Supreme Court would be due. Anderson v. Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002). This date triggered the one-year period of limitations which required Evans to file his petition by the time "the courthouse doors shut for the day" on April 29, 1998. See United States v. Marcello, 212 F.3d 1005, 1009 (7th Cir. 2000).
Although I received Evans' petition on May 21, 1998, he argues that he filed it — under the mailbox rule — on April 29, 1998. As a pro se litigant, Evans is entitled to rely on the mail box rule, under which a habeas petition is deemed filed for statute-of-limitations purposes when an inmate gives the petition to "proper prison authorities" for mailing. Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999). However, while Evans purportedly signed his petition on April 29, 1998, the petition reveals that it was notarized on April 30, 1998, one day after the final date for a timely filing. The Stateville Correction Center Mailroom does not offer notary public services. Thus, this notarization must have occurred prior to Evans giving the petition to the correction officer on duty in the cell house. As such, Evans' petition could not have been given to "proper prison authorities" for mailing on April 29, 1998 as it was not notarized until the following day. Id. Thus, the petition is untimely by at least one day. "Foreclosing litigants from bringing their claim because they missed the filing deadline by one day may seem harsh, but courts have to draw lines somewhere." Marcello, 212 F.3d at 1010. As such, Evans' request for habeas relief is untimely and is dismissed with prejudice.
In his response, Evans argues that his state post-conviction relief proceedings, which he asserts were pending upon my receiving his habeas petition on May 21, 1998, should have tolled the statute of limitations. Although a "properly filed" petition for post-conviction relief tolls the AEDPA statute of limitations, a post-conviction petition must be "pending" in order to toll the limitations period. See 28 U.S.C. § 2244(d)(2), Brooks v. Walls, 301 F.3d 839 (7th Cir. 2002). Here, Evans' post-conviction petition was not "pending" until August 24, 1998, when it was filed. By this time, the limitations period for filing a federal habeas petition had already expired. Evans asserts that he filed his first post-conviction petition on October 21, 1997, but this assertion was expressly rejected by the Illinois Appellate Court on September 21, 2000, as it affirmed the circuit court's denial of post-conviction relief, and this finding is entitled to a presumption of correctness on habeas review. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981).
For the aforementioned reasons, Respondent's Motion to Dismiss is GRANTED.