Opinion
No. 03 C 5249.
April 12, 2004
ORDER
Following a February 20, 1997 jury trial, Petitioner Terrance Love was found guilty of first degree murder, and the Circuit Court of Cook County sentenced him to 42 years in prison. Petitioner appealed that judgment and, on August 7, 1998, the Appellate Court of Illinois, First District, affirmed the conviction. People v. Love, 298 Ill.App.3d 1157, 738 N.E.2d 232 (1st Dist. 1998). The Illinois Supreme Court denied leave to appeal on June 2, 1999. People v. Love, 184 Ill.2d 566, 714 N.E.2d 530 (1999). On November 23, 1999, Petitioner filed a post-conviction petition in the Circuit Court of Cook County; that petition was dismissed on January 21, 2000. Petitioner appealed, and on May 2, 2002, the Illinois Appellate Court affirmed the dismissal. The Illinois Supreme Court denied leave to appeal on October 2, 2002. People v. Love, 201 Ill.2d 596, 786 N.E.2d 194 (2002). Petitioner filed this petition for a writ of habeas corpus on July 15, 2003 pursuant to 28 U.S.C. § 2254, and Respondent Victor Trancoso moved to dismiss the petition as untimely. By minute order dated December 5, 2003, this court denied Respondent's motion. Respondent now moves to alter or amend this court's judgment pursuant to FED. R. CIV. P. 59. For the reasons explained here, the motion is granted, the court's December 5, 2003 minute order is vacated, and the habeas corpus petition is dismissed as untimely.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1), a state prisoner has one year to file a habeas corpus petition seeking relief from a criminal conviction from the latter of the date on which; (1) the state court judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, (2) an unconstitutional state-created impediment to filing the petitioner's application was removed, (3) "the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review," or (4) the factual predicate of the claim presented could have been discovered through the exercise of due diligence. This one-year limitations period is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." § 2244(d)(2); Gray v. Briley, 305 F.3d 777, 778 (7th Cir. 2002).
In this court's December 5, 2003 minute order, it cited Carey v. Saffold, 536 U.S. 214 (2002), for the proposition that the time between the date determined under § 2244(d)(1) and the filing of a post-conviction petition is excluded under § 2244(d)(2) from the one-year limitations period. In Carey, the Supreme Court explained that under § 2244(d)(2), "the 1-year period does not include the time during which an application for state collateral review is `pending' in the state courts." Id. at 217; accord Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002). The Court held that the term "pending" in that section (1) includes the time between a lower state court's decision regarding an application for collateral review and the filing of a notice of appeal to a higher state court, and (2) applies to "California's unique state collateral review system. . . ." Carey, 536 U.S. at 217. Importantly, the Court did not state that the one-year period excludes the time between the date determined under § 2244(d)(1) and the filing of an application for state collateral review.
This court now concludes that its earlier interpretation of Carey was erroneous. Implicit in the language of § 2244(d)(2) is the notion that the period between the date determined under § 2244(d)(1) and the filing of a post-conviction petition is in fact counted against the one-year limitations period. See, e.g., Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) ("[P]roper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run") (emphasis original) (internal quotation marks and citation omitted); c.f. Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) ("The tolling provision does not . . . `revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations") (internal quotation marks and citation omitted); Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) ("While a `properly filed' application for post-conviction relief tolls the statute of limitations, it does not reset or restart the statute of limitations once the limitations period has expired. In other words, the tolling provision does not operate to revive the one-year limitations period if such period has expired").
In this case, the time for Petitioner to seek review of his state court judgment expired on August 31, 1999, when the 90-day period during which a state prisoner may file a petition for a writ of certiorari from the U.S. Supreme Court had passed. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002). There is no evidence of any unconstitutional state-created impediment that prevented Petitioner from filing his application, that Petitioner is asserting a newly-created constitutional right, or that the factual predicate of his claim could not have been discovered until after August 31, 1999. The applicable one-year limitations period therefore commenced on August 31, 1999.
The limitations period was tolled beginning November 23, 1999, when Petitioner filed his post-conviction petition in the Circuit Court of Cook County; thus, 83 days of the one-year limitations period had elapsed. Petitioner's post-conviction review period ceased on October 2, 2002, when the Illinois Supreme Court denied leave to appeal. (As Petitioner did not file a petition for a writ of certiorari, no appeal of his post-conviction review petition was "pending" after October 2, 2002. See Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000).) The limitations period expired 282 days later, on July 11, 2003. Petitioner filed his habeas corpus petition on July 15, 2003, four days after the limitations period had expired. Petitioner's habeas corpus petition is therefore dismissed as untimely. The court grants Respondent's motion to reconsider (Doc. 18-1) and dismisses Respondent's motion to certify this question for interlocutory appeal (Doc. No. 18-2) as moot.