Cannady v. Watson
Filing
2
OPINION DISMISSING CASE entered by Judge Sue E. Myerscough on 6/22/2017. The Court summarily dismisses Petitioner's Petition for Writ of Habeas Corpus under 28 U.S.C. §2254. Petitioner has not made a substantial showing of the denial of a constitutional right, and the Court declines to issue Petitioner a certificate of appealability. Case CLOSED. (SEE WRITTEN OPINION) (MAS, ilcd)
E-FILED
Monday, 26 June, 2017 01:03:40 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SAM CANNADY,
Petitioner,
v.
CAMERON WATSON, Warden,
Respondent.
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No. 17-1273
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on Petitioner Sam Cannady’s
Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (d/e 1).
Under Rule 4 of the Rules Governing Section 2254 Proceedings
for the United States District Courts, this Court must promptly
examine the Motion. If it appears from the Motion and any
attached exhibits that Petitioner is not entitled to relief, the Court
must dismiss the Motion and direct the Clerk to notify Petitioner.
See Rule 4 of the Rules Governing Section 2254 Proceedings. A
preliminary review of Petitioner’s Motion shows that it must be
dismissed because the Motion is untimely and Petitioner is not
entitled to relief.
I. BACKGROUND
The Court takes the following information from Petitioner’s
Motion, the attachments thereto,1 and the appellate court decision
affirming Petitioner’s conviction, People v. Cannady, 159 Ill. App. 3d
1086 (1987). The Court can take judicial notice of public records.
See U.S. ex rel. Santiago v. Hinsley, 297 F. Supp. 2d 1065, 1068
n.4 (N.D. Ill. 2003) (involving summary dismissal of a § 2254 motion
where the court took judicial notice of public records about the
petitioner’s prior state court litigation).
In 1985, a jury found Petitioner guilty of unlawful restraint,
aggravated criminal sexual assault, and armed robbery for events
that occurred in 1984. In May 1985, the trial court sentenced
Petitioner as a habitual criminal to life imprisonment under the
Illinois Habitual Criminal Act, Ill. Rev. Stat. 1983, ch. 38, par. 33B1 et seq. (now 730 ILCS 5/5-4.5-95). Petitioner qualified as a
habitual criminal based on a 1969 conviction for rape and robbery
and a 1979 conviction for rape, armed robbery, and deviate sexual
assault. Petitioner appealed.
The attachments include the 2014 state trial court order denying one of
Petitioner’s pro se motions under 735 ILCS 5/2-1401 for relief from judgment.
See Ex. B1-B6 (d/e 1-3, pp. 15-20).
1
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On appeal, Petitioner argued, among other grounds, that his
life imprisonment sentence must be vacated because the provisions
of the Habitual Criminal Act under which he was sentenced were
unlawfully amended and the statute was unconstitutional.
Specifically, Petitioner argued that the 1980 amendment to the
Habitual Criminal Act was unconstitutional under the Illinois
Constitution because the bill containing the amendment was not
read by title on three different days before the House of
Representatives and the amendment was not germane to the
original bill submitted for passage.
In August 1987, the appellate court rejected those arguments
and found no constitutional violation in the passage of the
amendment. Cannady, 159 Ill. App. 3d at 1090. Petitioner did not
file a petition for leave to appeal to the Illinois Supreme Court.
In 2001, Petitioner filed a pro se post-conviction petition
challenging the constitutionality of his sentence based on Apprendi
v. New Jersey, 530 U.S. 466 (2000). The trial court summarily
dismissed the petition, and the appellate court affirmed.
In 2003, Petitioner filed a successive pro se post-conviction
petition challenging the Habitual Criminal Act as unconstitutional.
Page 3 of 15
The trial court summarily dismissed the petition as barred by
waiver and res judicata. On appeal, appellate counsel filed a Finley
brief (Pennsylvania v. Finley, 481 U.S. 551 (1987)) stating there
were no meritorious claims. The appellate court dismissed the case
for lack of jurisdiction because Petitioner failed to file his notice of
appeal in the proper manner.
In December 2003, Petitioner filed a pro se petition for relief
from judgment pursuant to 735 ILCS 5/2-1401, challenging the
constitutionality of the Habitual Criminal Act. The trial court
recharacterized the petition as a post-conviction petition and
dismissed it.
In June 2004, Petitioner filed another pro se petition for relief
from judgment pursuant to 735 ILCS 5/2-1401, challenging the
constitutionality of the Habitual Criminal Act. The trial court
dismissed the petition.
Petitioner appealed the dismissal of the 2003 and 2004
petitions. The appellate court dismissed the appeal of the 2003
petition because Petitioner failed to properly file a notice of appeal.
The appellate court found it had jurisdiction over the appeal of the
dismissal of the 2004 petition. The appellate court further found
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that the trial court failed to give Petitioner notice of the court’s
recharacterization of his petition. Therefore, the appellate court
remanded the case for the trial court to comply with the
admonishments required by People v. Shellstrom, 216 Ill. 2d 45
(2005).
On remand, Petitioner amended his petition. The State filed a
motion to dismiss, which the trial court granted. Petitioner
appealed, and the appellate defender filed a Finley brief stating
there was no arguable basis for relief. The appellate court found no
issue of arguable merit and affirmed the judgment of the trial court.
In April 2011, Petitioner filed a pro se petition for relief from
judgment pursuant to 735 ILCS 5/2-1401, again challenging the
application of the Habitual Criminal Act. The trial court dismissed
the petition.
In December 2013, Petitioner filed a pro se petition for relief
from judgment pursuant to 735 ILCS 5/2-1401, claiming his
sentence was unconstitutional. The trial court dismissed the
petition as frivolous and patently without merit. Petitioner
appealed. In February 2016, the appellate court granted counsel’s
motion for leave to withdraw as counsel and affirmed the judgment
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of the trial court. Petitioner filed a petition for leave to appeal with
the Illinois Supreme Court, which the supreme court denied in May
2016.
On June 13, 2017, Petitioner filed the § 2254 Motion at issue
herein.
II. ANALYSIS
Initially, the Court finds that Petitioner’s § 2254 Motion is
untimely under 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides
as follows:
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;
(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;
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(C) the date on which 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
(D) the date on which the factual
predicate of the claim or claims
presented could have been
discovered through the exercise of
due diligence.
28 U.S.C. § 2244(d)(1). Section 2244(d)(2) further provides that
“[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.” 28 U.S.C. §2244(d)(2).
Here, Petitioner does not assert that the State created an
impediment to filing (§ 2244(d)(1)(B)), that the Supreme Court has
recognized a right and made that new right retroactively applicable
to cases on collateral review (§ 2244(d)(1)(C)), or that the factual
predicate for the claims could not have been discovered previously
through the exercise of due diligence (§ 2244(d)(1)(D)). Therefore,
the Court will only address the calculation of the one-year period
under § 2244(d)(1)(A).
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Under 28 U.S.C § 2244(d)(1)(A), the relevant date for starting
the limitations period for filing the federal habeas petition is the
date on which Petitioner’s conviction became final by the conclusion
of direct review or the expiration of the time for seeking such review.
However, because Petitioner’s conviction became final before the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
became effective, the one-year limitations period began to run from
April 24, 1996, the AEDPA’s effective date. Carey v. Saffold, 536
U.S. 214, 217 (2002). Absent tolling, the one-year statute of
limitations expired on April 24, 1997, and Petitioner’s federal
habeas petition—filed in June 2017—was untimely by over 20
years.
Although the one-year period is tolled during the time a
properly filed State post-conviction petition or other collateral
review is pending, 28 U.S.C. § 2244(d)(2), Petitioner did not file his
first state post-conviction petition until 2001, well after the
expiration of the one-year period calculated under § 2244(d)(1)(A).
State post-conviction proceedings that are filed after the expiration
of the one-year statute of limitations do not restart the one-year
period. De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009) (“It
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follows that a state proceeding that does not begin until the federal
year has expired is irrelevant.”); Graham v. Borgen, 483 F.3d 475,
483 (7th Cir. 2007) (holding that a petition for collateral review filed
after the federal habeas statute of limitations has expired does not
toll the one-year statute of limitation). Therefore, under
§ 2244(d)(1)(A), Petitioner’s claims are untimely.
Petitioner does not assert that equitable tolling or equitable
estoppel applies, nor does the Court find any basis on which these
doctrines would apply. See Tucker v. Kingston, 538 F.3d 732, 734
(7th Cir. 2008) (for equitable tolling to apply, a petitioner must show
that “extraordinary circumstances outside of his control and
through no fault of his own prevented him from timely filing his
petition” and he must show that “he has diligently pursued his
claim, despite the obstacle”); Clarke v. United States, 703 F.3d
1098, 1101 (7th Cir. 2013) (equitable estoppel applies where the
government takes active steps to prevent the petitioner from timely
filing suit).
In addition, the Court finds that summary dismissal is
warranted on the merits. In his § 2254 Motion, Petitioner
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challenges his life imprisonment sentence under the Illinois
Habitual Criminal Act.
The version of the statute in effect when Petitioner was
convicted and sentenced in 1985 provided that:
(a) Every person who has been twice convicted in any
state or federal court of an offense that contains the
same elements as an offense now classified in Illinois as
a Class X felony or murder, and is thereafter convicted of
a Class X felony or murder, committed after the 2 prior
convictions, shall be adjudged an habitual criminal.
***
(d) This Article shall not apply unless each of the
following requirements are satisfied:
(1) the third offense was committed after the effective
date of this Act;
(2) the third offense was committed within 20 years of the
date that judgment was entered on the first conviction,
provided, however, that time spent in custody shall not
be counted;
(3) the third offense was committed after conviction on
the second offense;
(4) the second offense was committed after conviction on
the first offense.
Ill.Rev.St.1983, ch. 38, par. 33B-1(a), (d). Prior to the 1980
amendment to the Act, only Illinois felony convictions that occurred
after the effective date of the Act could be used to qualify a
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defendant as a habitual criminal. Ill.Rev.Stat.1979, ch. 38, par.
33B-1 (applying only to state convictions for crimes of treason,
murder, rape, deviate sexual assault, armed robbery, aggravated
arson, or aggravated kidnapping for ransom and requiring that the
first felony have been committed after the effective date of the Act in
1978).
Petitioner argues that the 1980 amendment to the Habitual
Criminal Act violates the Illinois Statute on Statutes, 5 ILCS 70/4,
and the ex post facto clauses of the Illinois and United States
Constitutions. Specifically, Petitioner contends that he had a
vested right in the pre-1980 version of the Act such that his 1969
conviction—which would not have counted as a qualifying offense
under the pre-1980 version of the Act—could not be used to
enhance his sentence in 1985. If the 1969 conviction had not
counted as a qualifying offense under the Habitual Criminal Act,
Petitioner faced a maximum sentence of 30 years.
To the extent Petitioner’s challenge is based on state law and
the Illinois Constitution, the claim is noncognizable on federal
habeas review. See 28 U.S.C. § 2254(a) (providing that a person in
custody pursuant to a state-court conviction may petition for a writ
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of federal habeas corpus “only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United
States”); Mosely v. Moran, 798 F.2d 182, 185 (7th Cir. 1986) (only
violations of federal statutory or constitutional law can be the basis
for granting federal habeas relief). In addition, courts have
repeatedly rejected claims that the Illinois Habitual Criminal Act
violates the United States Constitution. See People v. Dunigan, 165
Ill.2d 235, 242 (1995) (finding the Illinois Habitual Criminal Act, as
amended in 1980, did not violate the ex post facto and double
jeopardy clauses of the federal and state Constitutions because
habitual criminal statutes do not define a new or independent
criminal offense and the punishment is only for the most recent
offense); Williams v. Chrans, 894 F.2d 928, 936 (7th Cir. 1990)
(noting that challenges to the Illinois Habitual Criminal Act on ex
post facto grounds have been “firmly rejected by both state and
federal courts”).
“An ex post facto law is one that punishes for conduct that is
not criminal at the time it occurred or that increases the
punishment for the conduct after the conduct is done.” United
States v. Mettler, 938 F.2d 764, 768 (7th Cir. 1991); see also Peugh
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v. United States, 133 S. Ct. 2072, 2081 (2013) (citing the common
law understanding of an ex post facto law to include a law that
makes criminal and punishes an act that was innocent when
committed, aggravates a crime or makes it greater than it was when
committed, changes the punishment and inflicts a greater
punishment than the law in effect when the crime was committed,
or alters the rules of evidence and receives less or different
testimony than the law required when the offense was committed in
order to convict the offender). The conduct for which Petitioner was
convicted and sentenced to life imprisonment in 1985 occurred in
1984, well after the 1980 amendment to the Habitual Criminal Act.
The fact that Petitioner’s 1969, pre-Habitual Criminal Act conviction
enhanced Petitioner’s 1985 punishment does not violate the ex post
facto clause of the United States Constitution because Petitioner
was punished solely for the conduct that occurred in 1984. See
Gryger v. Burke, 68 S. Ct. 1256, 1258 (1948) (finding that
Pennsylvania’s Habitual Criminal Act was not unconstitutionally
retroactive and ex post facto where one of the qualifying convictions
occurred before the Act was passed, noting that the sentence as a
habitual criminal “is not to be viewed as either a new jeopardy or
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additional penalty for the earlier crimes” and that the penalty is a
“stiffened penalty for the latest crime, which is considered to be an
aggravated offense because a repetitive one”); Williams, 894 F.2d at
936 (finding the district court correctly rejected the petitioner’s
Eighth Amendment and ex post facto challenges to the Illinois
Habitual Criminal Act even where both of the petitioner’s prior
convictions were entered before the effective date of the Act).
III. CONCLUSION
Because it plainly appears from the Motion and the attached
exhibits that the Motion is untimely and that Petitioner is not
entitled to relief, the Court SUMMARILY DISMISSES Petitioner’s
Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (d/e 1).
The Clerk is DIRECTED to notify Petitioner of the dismissal.
Rule 11(a) of the Rules Governing Section 2254 Cases requires
the Court to issue or deny a certificate of appealability when it
enters a final order adverse to the petitioner. To obtain a certificate
of appealability, Petitioner must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c). For such a
showing to exist, reasonable jurists must be able to “debate whether
(or, for that matter, agree that) the petition should have been
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resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted). Petitioner has not made a substantial showing of the
denial of a constitutional right, and the Court declines to issue
Petitioner a certificate of appealability. CASE CLOSED.
ENTER: June 22, 2017
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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