Opinion
No. 98 C 5827
February 16, 2000
MEMORANDUM OPINION AND ORDER
Following a jury trial, petitioner Hafis Haqq ("Haqq") was found guilty of first and second degree murder, armed robbery (two counts) and aggravated battery with a firearm. On December 17, 1993, he was sentenced to 55 years' imprisonment for murder and a consecutive 15 years' imprisonment for aggravated battery with a firearm and two counts of armed robbery. Haqq now petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that: (1) the trial judge improperly excluded evidence that the gun used belonged to the murder victim; (2) his trial counsel was ineffective for failing to discover evidence that the murder weapon belonged to the victim; (3) that separate counsel should have been appointed to represent Haqq during his post-trial motion; and (4) that his appellate counsel was ineffective for not asserting that trial counsel was ineffective. On February 16, 1999, the state moved to dismiss the instant petition as untimely, declining to address the substance of Haqq's claims. For the following reasons, the Court denies the state's motion to dismiss and directs it to timely address the merits of Haqq's arguments.
BACKGROUND
Following his conviction and sentence, Haqq filed a timely direct appeal to the Illinois Appellate Court, raising four issues. On December 4, 1996, the Illinois Appellate Court vacated Haqq's armed robbery conviction and affirmed the remainder of the judgment against him in all respects. People v. Hagg, No. 1-94-0859 (Ill.App.Ct. Dec. 4, 1996).
Haqq then filed a timely petition for leave to appeal to the Illinois Supreme Court, raising three of the same issues he raised on direct appeal. On April 2, 1997, the Illinois Supreme Court denied Haqq leave to appeal. People v. Hagg, No. 82509 (Ill.Sup.Ct. Apr. 2, 1997).
On April 16, 1997, Hagg filed a pro se petition for post-conviction relief pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 122/1 et seq. The trial judge denied that petition on April 25, 1997.
On August 19, 1997, Haqq wrote a letter to the Clerk of the Cook County Circuit Court alleging that, on May 19, 1997, he had mailed a notice of appeal from the denial of his post-conviction petition. (See State Ans., Ex. F.) The circuit court clerk received Haqq's August 19th letter, with enclosed copies of his notice of appeal, on September 5, 1997. Because the Circuit Court had no record of previously receiving his notice of appeal from the denial of his post-conviction petition, it filed Haqq's notice of appeal on the date it received his letter. (See State Ans., Ex. G.) On September 12, 1997, Haqq's notice of appeal was denied as untimely under Illinois Supreme Court rules. (See State Ans., Ex. E.)
On September 10, 1998, Haqq mailed the instant § 2254 habeas corpus petition to this Court. On February 16, 1999, the state filed a motion to dismiss, alleging that Haqq's petition should be dismissed as untimely pursuant to the one-year statute of limitations for 28 U.S.C. § 2254 habeas actions.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") gives state prisoners one year from the final disposition of their cases to file for habeas relief. 28 U.S.C. § 2244 (d). Specifically, 28 U.S.C. § 2244 (d) provides, in pertinent part:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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; . . .
The AEDPA also provides for the tolling of the statute for "[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." 28 U.S.C. § 2244 (d) (2). In this case, the Illinois Supreme Court denied Haqq leave to appeal his direct appeal on April 2, 1997. Since Haqq did not file his § 2254 petition in this Court until September 10, 1998 — more than one year after his judgment became final, — his present petition is only timely if the one-year statute of limitation was sufficiently tolled.
For statute of limitation purposes, a habeas petition is deemed filed when it is given to proper prison authorities and not when it is received by the district court clerk. Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir. 1999)
The Circuit Court denied Haqq's timely filed petition for state post-conviction relief on April 25, 1997. According to Haqq, he then filed a notice of appeal of the denial of his post-conviction petition on May 19, 1997, but received no response from the Circuit Court. On August 19, 1997, Haqq wrote to the Clerk of the Circuit Court alleging that he had mailed a notice of appeal on May 19th but had not yet received a stamped file copy. At that point, having no record of receiving an earlier notice, the Circuit Court filed Haqq's notice of appeal on September 5, 1997. On September 12, 1997, Haqq's notice of appeal of his post-conviction petition was denied as untimely under Illinois Supreme Court rules. See Ill. Sup. Ct. Rule 606(b).
Untimely filed state applications are not "properly filed" under § 2244(d)(2) and, therefore, cannot toll the statute of limitations unless the petitioner establishes grounds for equitable tolling. See Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998); Hoggro v. Boone, 150 F.3d 1223, 1227 (10th Cir. 1998); Vilazana v. Page, 1999 WL 34384, at *3 (N.D. Ill. May 11, 1999); Fernandez v. Washington, 1999 WL 688771, at *3.4 (N.D. Ill. Mar. 30, 1999). A "properly filed" petition is one that was submitted according to the state's procedural rules, including the time and place of filing. See, e.g., U.S. ex. rel. Morgan v. Gilmore, 26 F. Supp.2d 1035, 1033 (N.D. Ill. 1998) (citingLovasz, 134 F.3d at 147). Therefore, in this case, if Haqq did not file a timely notice of appeal of the denial of his post-conviction petition, the last date he had a "properly filed" post-conviction petition pending in state court was April 25, 1997, and consequently, his present habeas petition — filed on September 10, 1998, — would be time-barred by the one-year statute of limitations.
The state argues that the limitations provided for in § 2244(d)(1) are jurisdictional in nature and therefore the application of principles of equitable tolling are inappropriate. However, the Seventh Circuit recently joined other circuits in holding that the habeas statute of limitations is not jurisdictional and is subject to the judge-made doctrine of equitable tolling, at least in principle. See Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999)
Haqq insists that he filed a timely notice of appeal of his post-conviction petition on May 19, 1997, but that such notice of appeal was lost or misplaced by the Circuit Court Clerk. This Court finds that there is sufficient evidence in the record to support Haqq's assertion. Specifically, Haqq submits: (1) an affidavit from his fellow inmate, Johnnie Walton, who avers that he prepared Haqq's notice of appeal and that it was mailed to the Circuit Court clerk on May 19, 1997, and (2) a copy of Haqq's May 19, 1997 authorized request for postage from the Illinois Department of Corrections to mail his post-conviction notice of appeal. Moreover, the state admits that the Cook County Circuit Court file contains an unstamped copy of Haqq's notice of appeal dated May 19, 1997. (See State's Mot. to Strike at 3.)
Although the state continues to argue that there is still no actual proof that Haqq's notice of appeal was ever received and docketed by the Circuit Court before September 5, 1997, this Court finds that Haqq has made a sufficient factual showing that he did file a timely notice of appeal of his post-conviction petition. Accordingly, the Court concludes that, under the circumstances of this case, Haqq is not time-barred from proceeding with his present § 2254 habeas petition. Therefore, the state's motion to dismiss is denied.
CONCLUSION
For the reasons set forth above, the state's motion to dismiss Haqq's § 2254 petition for habeas relief is denied. The state is granted 21 days to respond to the substance of Haqq's habeas claims. Haqq is granted 14 days thereafter to reply to the state's response.