Lewis v. Young
Filing
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OPINION. The Petition of Aaron Lewis for a Writ of Habeas Corpus under 28 U.S.C. Section 2254 1 is DENIED. The Motion of Respondent Tarry Williams for Summary Judgment 15 is ALLOWED. Pursuant to Rule 11 of the Rules Governing Habeas Corpus Cases Under Section 2254, the Court DENIES a Certificate of Appealability to the Petitioner. Case Closed. Entered by Judge Richard Mills on 7/26/13. (CC, ilcd)
E-FILED
Monday, 29 July, 2013 01:43:56 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
AARON LEWIS,
Petitioner,
v.
TARRY WILLIAMS, Warden,
Western Illinois Correctional Center,
Respondent.
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No. 12-3214
OPINION
RICHARD MILLS, U.S. District Judge:
Pending before the Court is the Petition of Aaron Lewis for Writ of
Habeas Corpus under 28 U.S.C. § 2254.
Pending also Respondent’s
Motion for Summary Judgment.
I. INTRODUCTION
Petitioner Aaron Lewis raises several grounds which he claim entitles
him to relief under 28 U.S.C. § 2254. First, he contends that the State
presented insufficient evidence to convict him of murder. The Petitioner
alleges that based on the State’s exclusion of three African-American jurors,
he was denied the Equal Protection of the laws. He further alleges that his
trial counsel was ineffective by failing to exclude one juror on the panel
because that juror knew the victim’s sister. Next, the Petitioner asserts that
the trial court violated his due process rights when it allowed him to be led
in to the courtroom fully shackled at the feet. The Petitioner further asserts
that his appellate counsel’s failure to file an appellate brief constituted a
denial of the effective assistance of counsel.
The Respondent contends that the § 2254 petition is untimely under
AEDPA’s one-year statute of limitations and seeks the entry of summary
judgment on that basis. Alternatively, the Respondent asserts that all of the
claims are procedurally defaulted and should be denied. Moreover, one
claim is not cognizable in habeas corpus.
II. BACKGROUND
Petitioner Aaron Lewis is in the custody of Tarry Williams, Warden
of Western Illinois Correctional Center in Mt. Sterling, Illinois. In 2000,
the Petitioner was convicted of first degree murder and sentenced to 30
years imprisonment. See People v. Lewis, No. 5-00-0305 (Ill. App. May 23,
2001) (Rule 23 Order). A review of the Petitioner’s brief on direct appeal
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shows that Petitioner raised no issue related to this federal habeas petition.
The Illinois Appellate Court, Fifth District, affirmed the Petitioner’s
conviction and sentence. The Petitioner filed a petition for leave to appeal
(PLA) in the Illinois Supreme Court which also did not raise any issue
related to his federal petition, and the Illinois Supreme Court denied the
PLA on October 3, 2001.
On April 3, 2002, the Petitioner filed a counseled state postconviction petition, see 725 ILCS 5/122-1, et seq., raising one claim asserted
in his federal petition: that the evidence was insufficient to prove his guilt.
See Petition for Postconviction Relief, People v. Lewis, No. 98 CF 1592. The
Petitioner then filed a pro se supplemental petition raising two additional
claims which are asserted in this federal habeas petition: (1) that the
presence of a biased juror violated his right to a fair trial and his trial
counsel was ineffective for failing to strike that juror; and (2) that his due
process rights were violated when he appeared in shackles before the jury.
Finally, his counsel filed an amended post-conviction petition, again
arguing that the evidence was insufficient to convict. On August 5, 2011,
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the trial court dismissed the petition on the State’s motion. The Petitioner
received notice of the dismissal on September 5, 2011.
On October 4, 2011, the Petitioner placed in the prison mail system
a late notice of appeal. On November 4, 2011, the Illinois Appellate Court,
Fifth District, ordered the Petitioner to file the supporting record and
explain why his notice of appeal was untimely. The Petitioner’s appointed
appellate counsel did not comply with that order and, on November 18,
2011, the appellate court dismissed the appeal. On December 19, 2011,
the Petitioner’s appointed appellate counsel moved to reconsider the order
of dismissal, but that motion was stricken as untimely on December 27,
2011.1 Counsel for the Respondent contacted the clerk’s office of the
Illinois Supreme Court, who confirmed that Petitioner did not file a PLA
from the judgment dismissing the post-conviction appeal.
On August 6, 2012, the Petitioner filed the instant § 2254 petition.
The § 2254 petition includes correspondence and affidavits from
the Petitioner’s appointed appellate counsel, who took responsibility for
the failure to comply with the November 4, 2011 and the untimeliness
of the motion to reconsider.
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The Petitioner has exhausted his state court remedies. The Respondent
asserts that the petition is untimely.
III. DISCUSSION
The Respondent alleges that the § 2254 petition should be dismissed
with prejudice because it is untimely under 28 U.S.C. § 2244(d)(1), which
imposes a one-year statute of limitations for filing habeas petitions. The
Petitioner does not allege a state-created impediment to filing, a newlyrecognized and retroactive constitutional right or a subsequent discovery of
the factual predicate of a claim.
See 28 U.S.C. § 2244(d)(1)(B)-(D).
Therefore, the date on which the Petitioner’s conviction became final is the
only applicable date on which to start § 2244(d)(1)’s one-year limitations
period. See 28 U.S.C. § 2244(d)(1)(A).
Because the Petitioner did not file a petition for writ of habeas corpus
in the United States Supreme Court after his direct appeal proceedings
concluded on October 3, 2001, the statute of limitations began to run 90
days after that date, on January 1, 2002.
See Jimenez v. Quarterman, 555
U.S. 113, 119 (2009); Lozano v. Frank, 424 F.3d 554, 555 (7th Cir. 2005).
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The limitations period ran from January 1, 2002, until April 3, 2002,
when the Petitioner filed his state post-conviction petition, for a total of 92
days. Because there is nothing in the record tending to show that the postconviction petition was not “properly filed,” the limitations period was
tolled during the pendency of that post-conviction petition. See 28 U.S.C.
§ 2244(d)(2); Griffith v. Rednour, 623 F.3d 1166, 1167 (7th Cir. 2010).
The limitations period began to run again on August 5, 2011, when the
post-conviction petition was dismissed.2
The Petitioner’s unsuccessful attempts to file a late notice of appeal
do not entitle him to further statutory tolling because the appeal was not
“properly filed.” See 28 U.S.C. § 2244(d)(2). If the state courts had
granted him leave to file a late notice of appeal, he would be entitled to
such tolling because the appeal would have been “properly filed.” See
The Seventh Circuit has not yet decided whether the 30-day
period between the dismissal and the due date for a petitioner’s notice of
appeal may be tolled under § 2244(d)(2). See Williams v. Buss, 538 F.3d
683, 685 (7th Cir. 2008) (citing Fernandez v. Sternes, 227 F.3d 977, 980
(7th Cir. 2000)). The issue need not be determined in deciding
timeliness in this case.
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Fernandez v. Sternes, 227 F.3d 977, 979-80 (7th Cir. 2000). Because the
state courts denied leave, the Petitioner did not satisfy a pre-condition to
filing and his appeal was not “properly filed” under § 2244(d)(2). See id. at
980 (“it is not sensible to say that the petition continues to be “pending”
after the time for further review has expired without action to continue the
litigation”).
The Petitioner did not file this § 2254 petition until August 16, 2012,
377 days after the dismissal of his post-conviction petition. When added
to the 92 days of non-tolled time that elapsed between the end of his direct
appeal proceedings and the filing of the post-conviction petition, a total of
469 non-tolled days ran on the limitations period, rendering his petition
late.
In his Response to the Motion for Summary Judgment, the Petitioner
claims that the delay is not due to his negligence. Rather, he states it is due
to the culpable negligence of his attorney, Rita M. Anderson.
The
Petitioner claims that counsel’s deficient performance prejudiced his rights
to meaningfully appeal. He alleges her errors were so serious that counsel
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was not functioning as such, thereby denying him his Sixth Amendment
right. However, § 2244(d) does not allow calculation of the limitations
period to be affected by attorney inaction.
The United States Supreme Court has held that § 2244(d) is subject
to equitable tolling in appropriate cases. See Holland v. Florida, 130 S. Ct.
2549, 2560 (2010). A petitioner is not entitled to equitable tolling unless
he shows (1) he has been pursuing his rights diligently; and (2) an
“extraordinary circumstance” prevented a timely filing. See id. at 2562.
The Court is unable to conclude the Petitioner has established that
he is entitled to equitable tolling. He did not diligently pursue his rights in
filing his habeas petition. After the Illinois Appellate Court dismissed the
Petitioner’s post-conviction appeal on November 18, 2011, he did not file
a PLA in the Illinois Supreme Court. In fact, he filed nothing after the end
of that appellate litigation until he filed his federal habeas petition eight
months later. The Court concludes this is not consist with the diligent
pursuit of his rights.
The Petitioner has also failed to show that any extraordinary
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circumstance prevented the timely filing of his federal habeas petition. The
admitted errors of his post-conviction appellate counsel do not constitute
an “extraordinary circumstance.” See Powell v. Davis, 415 F.3d 722, 727
(7th Cir. 2005)(noting that despite any state rules on right to counsel at
post-conviction stage of proceedings, there is no federal right and attorney
negligence is attributable to the client and thus is not a circumstance
beyond a petitioner’s control that might excuse untimeliness); see also
Modrowski v. Mote, 322 F.3d 965, 967-68 (7th Cir. 2003).
Although “a lawyer’s ‘egregious behavior’ satisfies th[e] standard” for
tolling, “neither ‘a garden variety claim of excusable neglect’ nor a
‘miscalculation’ about the time available for filing is an ‘extraordinary
circumstance.’” See Griffith, 614 F.3d at 331 (quoting Holland, 130 S. Ct.
at 2252-53).
The Court finds that the errors acknowledged by post-
conviction counsel–the failure to file a timely notice of appeal and failing
to file a timely motion to reconsider the dismissal of the appeal–do not rise
to the level of egregious behavior which satisfies the standard for tolling.
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Based on the foregoing, the Court concludes that the § 2254 petition
was filed beyond the limitations period provided by § 2244(d)(1)(A).
Because the Petitioner has not shown he is entitled to equitable tolling, the
habeas petition will be dismissed with prejudice.
The Court further concludes that, even if the petition had been filed
within the limitations period, the Petitioner would still not be entitled to
any relief. His claim of ineffectiveness of post-conviction appellate counsel
would fail because, “The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground
for relief in a proceeding arising under section 2254.” See 28 U.S.C. §
2254(i).
Additionally, even if timely, all five of the Petitioner’s claims would
have been procedurally defaulted because they were not raised in one
complete round of state court review. Because the Petitioner did not file a
PLA in the Illinois Supreme Court following the post-conviction appeal, the
claims were procedurally defaulted. See Guest v. McCann, 474 F.3d 926,
930 (7th Cir. 2007) (in Illinois, one complete round of appellate review
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includes appeal to the Illinois Appellate Court and Illinois Supreme Court);
White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999) (failure to raise postconviction claims in discretionary appeal to highest state court results in
procedural default).
To the extent that Petitioner claims his default should be excused
under the “fundamental miscarriage of justice exception,” the Court
disagrees. “The fundamental–miscarriage–of–justice exception applies only
in the ‘extremely rare’ and ‘extraordinary case’ where the petitioner is
actually innocent of the crime for which he is imprisoned.” Gomez v. Jaimet,
350 F.3d 673, 679 (7th Cir. 2003) (citation omitted). The Petitioner does
not point to any new evidence which meets this exacting standard.
IV. CONCLUSION
The claims in the § 2254 petition are time-barred under §
2244(d)(1)(A).
Accordingly, the Respondent is entitled to summary
judgment on all of the Petitioner’s claims. Even if the claims were not timebarred, summary judgment would be warranted because the Petitioner has
procedurally defaulted the claims.
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Having concluded that Petitioner has not made a substantial showing
of the denial of a constitutional right under 28 U.S.C. § 2253(c)(2), the
Court hereby Denies a certificate of appealability pursuant to Rule 11 of
the Rules Governing Habeas Corpus Cases Under Section 2254.
Ergo, the Petition of Aaron Lewis for a Writ of Habeas Corpus under
28 U.S.C. § 2254 [d/e 1] is DENIED.
The Motion of Respondent Tarry Williams for Summary Judgment
[d/e 15] is ALLOWED.
Pursuant to Rule 11 of the Rules Governing Habeas Corpus Cases
Under Section 2254, the Court DENIES a Certificate of Appealability to
the Petitioner.
Case Closed.
ENTER: July 26, 2013
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge
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