Opinion
No. 99 C 6178.
June 28, 2000.
MEMORANDUM OPINION AND ORDER
Pending is defendant's ("State") motion to dismiss Melvin Draper's ("petitioner"), petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State's motion is brought pursuant to 28 U.S.C. § 2244(d)(1). For the following reasons, the State's motion to dismiss petitioner's petition for a writ of habeas corpus is granted with prejudice.
BACKGROUND FACTS
When considering a habeas corpus petition we presume that the factual determinations of the state court are correct. 28 U.S.C. § 2254 (e)(1). Thus, we adopt the facts as set forth by the Illinois Appellate Court. People v. Draper, 288 Ill. App.3d 1100, 711 N.E.2d 822, 238 Ill. Dec. 435 (1st Dist. 1997) (unpublished Rule 23 Order).
Following a jury trial, petitioner was found guilty under an accountability theory of first degree murder, armed robbery, and aggravated kidnaping of Jeffrey Tolefree ("Tolefree").
Petitioner was sentenced to forty-five years in prison. Marvin Marshall ("Marshall") and Billy Truly ("Truly") were also charged with Tolefree's murder. Marshall, the actual shooter, pled guilty and received a forty-year prison term. Petitioner and Truly proceeded to simultaneous but separate jury trials; petitioner was convicted but Truly was acquitted.
Petitioner made a statement to Detective John Halloran on December 7, 1992. Petitioner stated that on November 30, 1992, at approximately 8:00 p.m., petitioner was at his home with Marshall and Truly. Marshall asked petitioner to drive the three men to a liquor store. Petitioner drove Marshall's car to the liquor store. The three men stopped at the liquor store and had a few drinks. After having a few drinks, Marshall asked petitioner to drive to 58th Street and King Drive so that the three men could "f--- someone up there." Petitioner understood "f--- someone up" to mean to hurt someone.
Petitioner drove Marshall's car to the location that Marshall had requested. Once at that location, Marshall told Truly to go to Tolefree's apartment and lure him to a gas station where Marshall would be waiting. Petitioner and Marshall arrived at the gas station about five minutes before Truly and Tolefree arrived. Tolefree was driving his own car.
Tolefree parked near petitioner and Marshall got out of the car and walked over to Tolefree's car. Marshall opened Tolefree's driver side door while pulling a handgun from underneath his coat and pointing the gun at Tolefree. In accordance with Marshall's instructions, Tolefree moved into the passenger seat and Truly moved into the driver's seat of Tolefree's car. Marshall then returned to his car where petitioner was situated. Truly drove away in Tolefree's car with petitioner and Marshall following them in Marshall's car. The two cars stopped in an alley at 57th Street and Wentworth Avenue. After petitioner pulled up behind Tolefree's car, Marshall walked to the driver's side of Tolefree's car. Marshall then took his gun, opened the door, reached past Truly and shot Tolefree four or five times.
After shooting Tolefree, Marshall got in the back of Tolefree's car and Truly drove south through the alleys with petitioner following them. After Truly and Marshall disposed of Tolefree's body in a vacant lot, they met petitioner at petitioner's house. The three men then proceeded to strip Tolefree's car and they sold the tires somewhere in the vicinity of 55th Street and Halsted. Apparently, petitioner walked away from Marshall and Truly due to an argument that petitioner had with Marshall regarding petitioner's share of the proceeds from the sale of the tires.
At approximately 1:30 a.m. on December 1, 1992, Officers Giltmier and Sears stopped Marshall and Truly in Marshall's car after they ran a red light and two stop signs. Both Marshall and Truly had blood on their shirts and they were arrested after they became combative with the officers. Officer Giltmier further saw Truly stuffing several hundred dollars into the back seat. Further investigation led to petitioner's arrest.
PROCEDURAL HISTORY
After a jury found petitioner guilty on an accountability theory of first degree murder, armed robbery, and aggravated kidnaping, petitioner appealed to the Illinois Appellate Court. Petitioner raised four issues on direct appeal; (1) petitioner's statements to the assistant state's attorney were insufficient as a matter of law to establish petitioner's guilt beyond a reasonable doubt; (2) the prosecutor made improper inferences during closing argument that deprived petitioner of a fair and impartial trial; (3) Truly's acquittal established a reasonable doubt as to petitioner's guilt; and (4) the circuit court's sentence of petitioner was excessive. On June 13, 1997, in an unpublished order pursuant to Illinois Supreme Court Rule 23, the Illinois Appellate Court affirmed petitioner's conviction. People v. Draper, 288 Ill. App.3d 1100, 711 N.E.2d 822, 238 Ill. Dec. 435 (1st Dist. 1997) (unpublished Rule 23 Order).
On July 10, 1997, petitioner filed a petition for leave to appeal to the Illinois Supreme Court. Petitioner raised two issues in support of reversal; (1) the appellate court erred in ignoring Illinois precedent and in deciding that there was legally sufficient evidence to support petitioner's conviction; and (2) the appellate court erred in that it concluded that petitioner's murder conviction could be based on his alleged acquiescence in a misdemeanor battery. On October 1, 1997, the Illinois Supreme Court denied petitioner's petition for leave to appeal. People v. Draper, 174 Ill.2d 575, 686 N.E.2d 1166, 227 Ill. Dec. 10 (Ill. 1997).
On May 11, 1998, petitioner filed a petition for post-conviction relief. Petitioner raised seven issues on post-conviction; (1) petitioner was illegally seized from his residence without a warrant in violation of the Fourth and Fourteenth Amendments; (2) petitioner was denied a fair trial in violation of the Sixth and Fourteenth Amendments; (3) petitioner was denied his Fourteenth Amendment right to a fair trial because the evidence did not establish petitioner's guilt beyond a reasonable doubt for the offense of armed robbery; (4) petitioner was denied his Fourteenth Amendment right to a fair trial because the evidence did not establish the offense of aggravated kidnaping beyond a reasonable doubt; (5) petitioner was denied his Sixth and Fourteenth Amendment rights to a fair trial due to the prosecutor's prejudicial and inflammatory remarks and misstatement of the accountability law; (6) petitioner was denied due process of law under the Fourteenth Amendment where final judgement is lacking on specific charges and where verdicts are inconsistent; and (7) petitioner was denied his First and Sixth Amendment rights to effective assistance of counsel on direct appeal. On July 15, 1998, the circuit court dismissed petitioner's post-conviction relief petition.
On June 18, 1999, the Illinois Appellate Court, in an unpublished order, granted the appellate defender's motion to withdraw and affirmed the circuit court's dismissal of petitioner's post-conviction petition.People v. Draper, No. 1-98-3123 (1st Dist. 1998) (unpublished Rule 23 Order). Petitioner did not seek leave to appeal the dismissal of his post-conviction petition to the Illinois Supreme Court.
On October 22, 1999, petitioner filed a petition for a writ of habeas to proceed in forma pauperis in this Court. Petitioner raises six claims in his petition; (1) the evidence was insufficient as a matter of law to convict him; (2) petitioner's statements to the assistant state's attorney was not sufficient as a matter of law to establish petitioner's guilt beyond a reasonable doubt; (3) other evidence adduced at trial casts serious doubt as to the reliability of petitioner's statement; (4) Truly's acquittal establishes doubt as to petitioner's guilt; (5) the trial court's sentence of petitioner was excessive; and (6) petitioner was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel by the appellate defender.
DISCUSSION
"The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-32, 100 Stat. 1214, applies to this case because petitioner filed his § 2254 petition after April 24, 1996." McClain v. Page, 36 F. Supp.2d 819, 820 (C.D. Ill. 1999) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct 2059, 2068, 138 L.Ed.2d 481 (1997)). The AEDPA was codified in part under 28 U.S.C. § 2244(d) (West 1999). Section 2244(d) provides in 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 judgement of a State court. The limitation period shall run from the latest of:
(A) the date on which the judgement became final by the conclusion of direct review or the expiration of the time for seeking such review.28 U.S.C. § 2244(d)(1)(A) (West 1999).
For purposes of simplicity we have excluded § 2244(d)(1)(B)(C)(D) from the text of this opinion because we find those subsections inapplicable to the facts of this case.
We must now apply the statute to the facts of this case. Our first inquiry is to determine from which point in time does the 1-year period of limitation begin to run. We agree with the State in concluding that the 1-year period of limitation began to run on October 1, 1997. On October 1, 1997, the Illinois Supreme Court denied petitioner's petition for leave to appeal the issues that petitioner raised on direct appeal. Thus, petitioner's direct review concluded on October 1, 1997, and it was on this date that petitioner's judgement became final. Since the 1-year period of limitation began to run on October 1, 1997, it necessarily follows that petitioner was required to file his § 2254 petition no later than October 1, 1998.
Once the 1-year period of limitation has been determined, the second inquiry is whether the petitioner sought state post-conviction relief. Section 2244(d)(2) provides "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2) (West 1999) (emphasis added). In other words, the 1-year period of limitation for the filing of a § 2254 habeas petition will be tolled in cases where the petitioner has properly filed an application for post-conviction relief in State court.
It has been established that a "properly filed application" is an application that is "submitted according to the state's procedural rules, including the rules governing the time and place of filing." McClain, 36 F. Supp.2d at 821 (citing Morgan v. Gilmore, 26 F. Supp.2d 1035, 1038 (N.D. Ill. 1998)). Therefore, we must examine the relevant Illinois procedural rule in order to determine whether petitioner's petition for post-conviction relief was properly filed for purposes of tolling the § 2244(d)(1)(A) 1-year period of limitation for filing a § 2254 habeas petition.
The Illinois procedural rule governing the timing for filing post-conviction petitions evolves from 725 ILCS 5/122-1(c) (West 1999). The relevant portion of the Illinois statute provides:
No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court (or more than 45 days after the deadline for the filing of the defendant's brief with the Illinois Supreme Court if no brief is filed) or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
The Illinois Supreme Court denied petitioner's petition for leave to appeal on October 1, 1997. Hence, petitioner had until April 1, 1998 to file a petition for post-conviction relief. On the other hand, petitioner was convicted on January 6, 1995. Under this clause of the statute, petitioner had until January 6, 1998 to file a petition for post-conviction relief. Since January 6, 1998 is the sooner of the two dates, we conclude that petitioner had until January 6, 1998 to properly file his petition for post-conviction relief. Petitioner did not file his petition for postconviction relief until May 11, 1998. Therefore, petitioner's petition for post-conviction relief was not properly filed for purposes of tolling the § 2244(d)(1)(A) 1-year period of limitation for the filing of a § 2254 habeas petition.
Petitioner argues that his delay in filing his post-conviction petition was not due to his culpable negligence but rather because of excessive institutional lockdowns at Stateville Correctional Center. Petitioner contends that these lockdowns prevented him from using the law library on more than twenty-five occasions. This is the first time Petitioner has mentioned any hindrance for filing his post-conviction petition or for filing his habeas petition because of lockdowns. He failed to raise this contention at the time he filed his post-conviction petition. The interpretation of what it means to show "that the delay was not due to . . . culpable negligence" is a matter of state law only, and we must accept the state court's answer. Gilmore v. Taylor, 508 U.S. 333 (1993). Petitioner's allegations of excessive lockdowns is vague and sets forth no indication as to which lockdowns prevented him from filing. Further, this argument was never raised before the state court.
Petitioner's second argument is that despite the fact that his post-conviction petition was not timely filed, the circuit court's consideration of the petition and dismissing the same as frivolous and without merit delayed petitioner in filing his writ of habeas corpus in this Court. Petitioner contends that had the circuit court dismissed his post-conviction petition outright as untimely filed, petitioner would have filed his habeas petition prior to October 1, 1998 because petitioner would not have appealed the circuit court's dismissal of his post-conviction petition as frivolous and without merit. As written, § 2244(d)(2) poses an objective question: whether the filing in state court was "proper." Whether a collateral attack is "properly filed" can be determined in a straight forward manner by looking at how the state courts treated it. The Illinois Appellate Court affirmed both the circuit court and petitioner's counsel's conclusion that petitioner's post-conviction petition was untimely filed. People v. Draper, No. 1-98-3123 (1st Dist. 1999) (unpublished Rule 23 Order). Further, it seems logical to us that the circuit court would hear petitioner's post-conviction petition despite the fact that it was untimely in order to determine, in accordance with the statute, whether the reason for the delay was due to petitioner's culpable negligence.
In sum, the § 2244(d)(1)(A) 1-year period of limitation for filing a § 2254 habeas petition began to run on October 1, 1997. Petitioner filed his § 2254 habeas petition after October 1, 1998. The 1-year period of limitation was never tolled pursuant to § 2244(d)(2) because petitioner's application for post-conviction relief was not properly filed. Thus, the State's motion to dismiss petitioner's § 2254 petition for a writ of habeas corpus is granted and the petition is dismissed with prejudice.
CONCLUSION
For the reasons set forth above, the State's motion to dismiss petitioner's § 2254 petition for a writ of habeas corpus is granted with prejudice (#14-1).