Opinion
No. 99 C 6744
June 29, 2000
MEMORANDUM OPINION AND ORDER
Petitioner Nelson Williams ("Williams") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 7, 1999. On December 21, 1999, Williams filed an amended petition for writ of habeas corpus. Williams was convicted of first degree murder, two counts of home invasion, aggravated kidnaping, kidnaping, robbery, and aggravated battery after a jury trial in the Circuit Court of Cook County, Illinois. Williams' petition for writ of habeas corpus contains four claims for relief. Respondent has filed a motion to dismiss Williams' petition, claiming that Williams' petition is untimely. For the following reasons, respondent's motion to dismiss Williams' amended petition for habeas relief is GRANTED.
While Williams' petition was filed in the Clerk's office on October 12, 1999, "for statute limitations purposes, a [habeas] petition is deemed filed when given to the proper prison authorities and not when received by the district court clerk." Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir. 1999) (citing Houston v. Lack, 487 U.S. 266 (1988)). The record reflects that Williams' petition was given to prison authorities on October 7, 1999.
PROCEDURAL HISTORY
As just stated, Williams was convicted of first degree murder, two counts of home invasion, aggravated kidnaping, kidnaping, robbery, and aggravated battery after a jury trial in the Circuit Court of Cook County, Illinois on March 14, 1995. Williams was then sentenced to concurrent terms of 90 years for murder, 30 years for each count of home invasion, 15 years for aggravated kidnaping, seven years for kidnaping, seven years for robbery, and five years for aggravated battery. Williams timely appealed his convictions and sentences to the Illinois Appellate Court and raised three claims for relief. On March 27, 1997, the Illinois Appellate Court denied Williams' appeal and affirmed Williams' convictions and sentences. Shortly thereafter, on April 17, 1997, Williams filed a petition for rehearing, which was ultimately denied on May 21, 1997. On April 13, 1998, Williams sent what he captioned a petition for leave to appeal to the Illinois Supreme Court. The Illinois Supreme Court, acknowledging that the petition was filed late, treated Williams' petition as a motion for leave to file a late petition for leave to appeal and filed it on May 7, 1998. On October 7, 1998, Williams' motion for leave to file a late petition for leave to appeal was denied. Williams did not file any applications for state post-conviction or other collateral review with respect to the pertinent judgment. Williams' original petition was filed in this court on October 7, 1999.
ANALYSIS
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") which effectively established a one-year period of limitations on filing a first petition for collateral review under 28 U.S.C. § 2254-2255. See 28 U.S.C. § 2244 (d). In pertinent part, the AEDPA amended § 2244(d) to provide:
(1) A 1-year period of limitations 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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;. . . .Id. As the statute states, the 1-year statute of limitations begins to run on "the date on which the judgment 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). In this case, Williams' convictions and sentences were affirmed by the Illinois Appellate Court on March 27, 1997. Williams did file a timely petition for rehearing, but it was denied on May 21, 1997. Williams did not file a timely petition for leave to appeal to the Illinois Supreme Court. Accordingly, Williams' statute of limitations presumably began to run 35 days after the Illinois Appellate Court denied his petition for rehearing, on June 25, 1997, that being the last day on which he could have filed a petition for leave to appeal to the Illinois Supreme Court. Ill. Sup.Ct. Rule 315(b).
Williams argues, however, that the Illinois Appellate Court failed to properly notify him of the denial of his pro se petition for rehearing on May 21, 1997. Williams claims that the list of his incoming certified mail shows that he received no notification of the decision by the court's clerk. First of all, Williams does not indicate whether or not this list is a complete list of all his incoming certified mail nor does the court believe it is a complete list. In fact, it appears that one line has been deleted from the page filed in the record. Second, Williams asserts that this list is of incoming certified mail, yet he provides no support that an order denying a petition for rehearing from the Illinois Appellate Court would have been sent certified mail. While Illinois Supreme Court rules require the Illinois Appellate Court's clerk to notify a prisoner by certified mail of the affirmance of a judgment of conviction, the rule does not require the clerk to notify a prisoner by certified mail of a denial of a petition for rehearing. See Ill. Sup.Ct. Rule 614. Williams' convictions and sentences were undoubtably affirmed on March 21, 1999 and Williams does not deny that he received by certified mail a copy of the opinion of the Illinois Appellate Court, affirming his judgment of conviction. The list of incoming certified mail also indicates he did in fact receive various packages and letters shortly after the Illinois Appellate Court's decision.
Moreover, Williams provides the order he received from the Illinois Supreme Court denying his motion for leave to file a late petition for leave to appeal, which is also not indicated on his list of incoming certified mail. This provides further support his list of incoming mail is not conclusive evidence that Williams was not sent notification. Nevertheless, this court finds the list inconclusive as to whether Williams actually failed to receive notice by the Illinois Appellate Court of the May 21, 1997 decision.
Even still, Williams could have learned that his petition for rehearing was denied at any time by exercising due diligence. Williams provides no reason, nor does this court find any reason or impediment which would have barred Williams from finding out his petition for rehearing had been denied. While Williams does not even state when he first learned that his petition for rehearing was denied, a cursory review of his current habeas petition seems to suggest Williams knew by November of 1997 that the Illinois Appellate Court had denied his petition for rehearing. Yet, Williams does not explain why he waited until April of 1998 to prepare to file a motion for leave to file a late petition for leave to appeal to Illinois Supreme Court, nor does this court find any reason or impediment which would have barred him from filing a motion earlier. Nevertheless, had Williams exercised due diligence, he easily could have obtained the results of his petition for rehearing long before the time he actually began to prepare to file a motion for leave to file a late petition for leave to appeal to the Illinois Supreme Court and more promptly pursue his legal remedies.
Williams asserts, without sufficient support, that he filed two separate motions for leave to file a late petition for leave to appeal in November of 1997 and January of 1998.
Williams still argues that the date his judgment became final by the conclusion of direct review was not until October 7, 1998, when the Illinois Supreme Court denied his motion for leave to file a late petition for leave to appeal. As this court has previously stated, the statute of limitations is only suspended under Illinois law when the Illinois Supreme Court actually files the motion for leave to file a late petition for leave to appeal and remains suspended until the Illinois Supreme Court decides the motion in order to account for both timely petitions to appeal and the exception under Illinois law which allows late petitions for leave to appeal but only under certain circumstances. See U.S. ex rel. Jefferson v. Gilmore, No. 98 C 3342, 1999 WL 261737, at *3 (N.D. Ill. Apr. 19, 1999); U.S. ex rel. Gooch v. Scillia, 56 F. Supp.2d 1040, 1042 (N.D. Ill. 1999) (adopting this court's reasoning dealing with motion for leave to file a late petition to appeal); see also U.S. ex. rel. Morgan v. Gilmore, 26 F. Supp.2d 1035, 1038 (N.D. Ill. 1998). Therefore, Williams' limitations period is only suspended for approximately five months, May 7, 1998 until October 7, 1998. Yet, almost a year had already passed at that point — Williams had until June 21, 1997 to file a timely notice of appeal from the Illinois Appellate Court's denial of his petition for rehearing and affirmance of his judgment of conviction, but he did not file a motion for leave to file a late petition for leave to appeal until May 7, 1998.
So, even considering October 7, 1998 as the date when Williams' statute of limitations began to run again, Williams only had less than two months to file a federal habeas petition. Therefore, Williams' habeas petition filed on October 7, 1999, the date he handed the petition to prison authorities, was still untimely. Exactly a year had passed and therefore, Williams' statute of limitations period had long since run. As the Seventh Circuit noted in Tinker v. Hanks, 172 F.3d 990 (7th Cir. 1999) and reaffirmed in Freeman v. Page, 208 F.3d 572 (7th Cir. 2000), prisoners who want to pursue both state and federal relief can protect themselves by filing in both courts. Thus, there was nothing stopping Williams to do the same. In conclusion, this court finds that Williams' petition is time-barred and must be dismissed as untimely.
CONCLUSION
Based on the above stated reasons, respondent's motion to dismiss petitioner Williams' amended petition for writ of habeas corpus is GRANTED. The case is dismissed in its entirety. All other pending motions are moot.