Johnson v. Lamb
Filing
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OPINION: Respondent's Motion for Summary Judgment 16 ALLOWED; Petition of Jerrold Johnson for a Writ of Habeas Corpus is DISMISSED with prejudice; Motion to Stay 6 DENIED as moot; Motion to Request Counsel 7 DENIED as moot; Motion to Reque st Counsel 10 DENIED as moot. Court declines to issue a certificate of appealability. Clerk to enter Judgment and terminate the case. SEE WRITTEN OPINION. Entered by Judge Richard Mills on 10/04/2016. (SKN, ilcd) Modified on 10/5/2016 (SKN, ilcd).
E-FILED
Wednesday, 05 October, 2016 02:30:00 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERROLD JOHNSON,
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Petitioner,
v.
RANDY PHISTER,
Respondent.
NO. 15-3241
OPINION
RICHARD MILLS, U.S. District Judge:
Jerrold Johnson has filed a Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus. Also pending is the Respondent’s Motion for Summary
Judgment.
I. BACKGROUND
In the Circuit Court of Adams County, Illinois, Petitioner Jerrold
Johnson was convicted of armed robbery and sentenced to life
imprisonment. The appellate court affirmed the Petitioner’s conviction and
sentence. The Petitioner filed a petition for leave to appeal (PLA), which
the Illinois Supreme Court denied on September 29, 2010.
The 90-day period for seeking certiorari from the United States
Supreme Court under Supreme Court Rule 13 ended on December 28,
2010, with the Petitioner filing a writ of certiorari.
Eighty days later, on March 18, 2011, the Petitioner filed a state postconviction petition. The state petition was dismissed. The Petitioner
appealed and the appellate court was affirmed.
Subsequently, the Petitioner filed a post-conviction PLA which was
denied by the Illinois Supreme Court on September 24, 2014.
It was 328 days after the Illinois Supreme Court’s denial of his
PLA–on August 18, 2015–that Petitioner mailed his Petition under § 2254
to this Court.
In May 2015, more than two months before the Petitioner filed a
federal habeas corpus petition, he wrote this Court and unsuccessfully
requested a prospective extension of the statutory limitation period for
filing such a petition. In that request, the Petitioner asserted his belief that,
absent an extension, his federal petition would be due on September 24,
2015–i.e., one year after the Illinois Supreme Court denied review in his
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state post-conviction action.
II. LEGAL DISCUSSION
The Respondent contends that the petition under § 2254 is untimely
pursuant to the one-year limitations period in 28 U.S.C. § 2244(d)(1). The
statute provides four triggering dates for calculating the limitations period.
Because the Petitioner’s allegations do not suggest a later starting date
under § 2244(d)(1)(B)–(D), the Court concludes the one that is applicable
here is “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).
Section 2244(d)(2) tolls the period while a
properly filed collateral attack is pending in state court.
In this case, the Petitioner’s conviction became final when the 90-day
period for seeking certiorari on direct review expired: December 28, 2010.
See Lozano v. Frank, 424 F.3d 554, 555 (7th Cir. 2005) (conviction
became final when the time for filing a certiorari petition expired). From
December 29, 2010 through March 17, 2011, 79 days elapsed without any
tolling.
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The Petitioner stopped the clock under § 2244(d)(2) by filing a postconviction petition on March 18, 2011.
Post-conviction proceedings
concluded on September 24, 2014, when the Illinois Supreme Court denied
the Petitioner’s post-conviction PLA. See Lawrence v. Florida, 549 U.S.
327, 331-36 (2007) (no tolling during the 90-day period for seeking
certiorari after highest state court denies post-conviction relief).
The federal petition was mailed 328 days later, on August 18, 2015.
When the 79 days that had already elapsed between the end of direct
review and the start of post-conviction review are added, the result is that
the federal petition was filed 407 days after the judgment became final.
The Petitioner alleges that the limitations period should be equitably
tolled in his case. He claims that he suffers from a neurological disorder,
the symptoms of which affected his ability to file a timely petition. The
Seventh Circuit has held that in certain circumstances, equitable tolling
may be available for mental disability. See Davis v. Humphreys, 747 F.3d
497 (7th Cir. 2014).
The Petitioner seeks an extension of time under Federal Rule of Civil
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Procedure 6(b), which permits courts to grant extensions of time in certain
circumstances. The Court concludes this “does not apply to time periods
set out in statutes.” 4B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1165 (3d ed. 2002).
The judge-made doctrine of equitable tolling can apply to suspend the
habeas deadline when a petitioner identifies (1) an extraordinary
circumstance that (2) actually prevents timely filing, so long as (3) the
prisoner has diligently pursued his rights. See Holland v. Florida, 560 U.S.
631, 649 (2010). A simple miscalculation of the deadline–whether by a
licensed attorney or by a pro se petitioner–cannot trigger equitable tolling
because such mistakes are “garden variety” and “all too common.” See
Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010).
The Petitioner’s May 2015 motion for a prospective extension of the
federal deadline reveals that he was aware of the one-year statute of
limitations and that he had even calculated what he believed to be the
deadline. The Petitioner miscalculated by assuming that the one-year
limitations period runs from the conclusion of state post-conviction review,
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rather than from the conclusion of direct review.
He may have
misunderstood that § 2244(d)(2) merely tolls rather than restarts the
federal limitations period during post-conviction proceedings--and thus for
the fact that some untolled time had already accrued between the end of his
direct review and the start of state post-conviction review.
The Court concludes that was a discrete, garden-variety miscalculation
of the limitations period. The Petitioner could have revisited the matter
later if his neurological condition gave him cause to doubt his legal acumen.
This was an “all too common” mistake which cannot support equitable
tolling in this case. See Obriecht v. Foster, 727 F.3d 744, 749-50 (7th Cir.
2013) (routine miscalculations do not trigger equitable tolling).
Because the Petitioner knew of the federal deadline and simply
miscalculated it, the Court concludes that the Petitioner cannot show that
any impairment played a significant and extraordinary role in preventing
a timely filing. The Plaintiff’s general allegations that he faced difficulty
with timekeeping and memory “on numerous occasions and for various
periods” over the years do not establish the Petitioner’s inability to
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determine his federal deadline and file a petition between September 2014
and mid-2015. See Boulb v. United States, 818 F.3d 334, 340-41 (7th Cir.
2016) (noting the importance of specificity of allegations); see Griffith, 614
F.3d at 331 (“An illness that justifies a belated state filing does not
automatically justify an untimely federal filing more than a year later.”);
Miller v. Runyon, 77 F.3d 189, 192 (7th Cir. 1996) (when litigant’s “illness
is controlled he can work and attend to his affairs, including the pursuit of
any legal remedies that he may have” – a fact that defeats equitable tolling
in civil cases if litigant’s lucid periods are lengthy).
Because the federal petition was filed after the one-year deadline, it
is untimely pursuant to § 2244(d)(1)(A). The Petitioner is unable to show
that any impairment justifies equitable tolling in this case. Accordingly, the
petition under § 2254 will be denied.
The Court further finds that Petitioner is not entitled to a certificate
of appealability because the Petitioner has not “made a substantial showing
of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).
When the Court denies a petition on procedural grounds without
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reaching the underlying constitutional claim, a certificate of appealability
should issue only if the Petitioner shows “that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Petitioner has not shown that
jurists of reason would find it debatable that the petition states a valid
claim of the denial of a constitutional right.
Because jurists of reason also would not find it debatable whether the
procedural ruling was correct, moreover, the Court declines to issue a
certificate of appealability.
Ergo, the Respondent’s Motion for Summary Judgment [d/e 16] is
ALLOWED.
The Petition of Jerrold Johnson for a Writ of Habeas Corpus under
28 U.S.C. § 2254 [d/e 1] is DISMISSED with prejudice.
The Petitioner’s Motion to Stay [d/e 6] is DENIED as moot.
The Petitioner’s Motion to Request Counsel [d/e 7] is DENIED as
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moot.
The Petitioner’s Motion to Request Counsel [d/e 10] is DENIED as
moot.
The Court declines to issue a certificate of appealability.
The Clerk will enter Judgment and terminate the case.
ENTER: October 4, 2016
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge
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