Cook v. Watson
OPINION: The Court SUMMARILY DISMISSES Petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody 1 . The dismissal of Petitioner's § 2254 petition is WITH PREJUDICE. The Clerk is DIREC TED to mail a copy of this Opinion to Petitioner. Petitioner has not made a substantial showing of the denial of a constitutional rights, and the Court DECLINES to issue the Petitioner a certificate of appealability. Petitioner's Application t o Proceed in District Court Without Prepaying Fees or Costs 2 and Motion for Appointment of Counsel 4 are DENIED as MOOT. This case is CLOSED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 03/12/2018. (SKN, ilcd) (Main Document 5 replaced on 3/13/2018) (SKN, ilcd).
Tuesday, 13 March, 2018 11:19:41 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
OF THE CENTRAL DISTRICT OF ILLINOIS
CAMERON WATSON, Warden,
Western Illinois Correctional
Case No. 17-cv-03264
SUE E. MYERSCOUGH, U.S. District Judge:
This matter is before the Court on Petitioner Sam Cook’s
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (d/e 1). This Court must dismiss a § 2254
petition and direct the Clerk to notify Petitioner if it appears from
the petition and any attached exhibits that Petitioner is not entitled
to relief. See Rule 4 of the Rules Governing Section 2254
Proceedings. A preliminary review of Petitioner’s § 2254 petition
shows that the petition must be dismissed because it is untimely
and Petitioner is not entitled to relief.
Page 1 of 10
The Court takes the following information from Petitioner’s §
2254 petition, the attachments thereto, and the 2018 state
appellate court decision affirming the dismissal of Petitioner’s most
recent postconviction petition, People v. Cook, 2018 IL App (1st)
151407-U. The Court can take judicial notice of public records.
See United States ex rel. Santiago v. Hinsley, 297 F. Supp. 2d 1065,
1068 n.4 (N.D. Ill. 2003) (involving summary dismissal of a § 2254
petition where the court took judicial notice of public records about
the petitioner’s prior litigation in state court).
In 2002, a jury found Petitioner guilty of first degree murder
for the October 28, 1998, shooting death of his wife. The trial court
sentenced Petitioner to 42 years’ imprisonment. Petitioner
appealed, arguing “that he was denied a fair trial and due process
where the circuit court refused to excuse for cause a juror who was
observed ‘nodding off’ during his direct testimony, and that the
prosecutors made improper comments during closing arguments.”
People v. Cook, 2018 IL App (1st) 151407-U, ¶ 4. The Illinois
Appellate Court, First District, affirmed Petitioner’s conviction and
Page 2 of 10
sentence on September 17, 2003. The Illinois Supreme Court
denied Petitioner’s petition for leave to appeal on January 28, 2004.
In 2004, Petitioner filed a postconviction petition in state
court. The trial court dismissed the petition. The appellate court
affirmed the dismissal on October 17, 2006, and the Illinois
Supreme Court denied Petitioner’s petition for leave to appeal on
January 24, 2007. Petitioner filed a successive postconviction
petition in state court in 2009, but the petition was dismissed, and
the dismissal was affirmed on appeal. Other postconviction
petitions filed in state court by Petitioner in 2010 and 2015 met the
same fate. On September 26, 2017, the Illinois Supreme Court
denied Petitioner’s motion for leave to file a petition for a writ of
On November 14, 2017, prior to the affirmance of the
dismissal of his 2015 postconviction petition, Petitioner filed the §
2254 petition at issue herein. In the § 2254 petition, Petitioner
asserts that he is entitled to day-for-day credit on his sentence
because his crime was committed prior to the date the Illinois
Supreme Court held that the law prohibiting Petitioner from
receiving any sentence credit was validly reenacted. Petitioner
Page 3 of 10
claims that his sentence, specifically his inability to receive day-forday credit, violates federal law.
Initially, the Court finds that Petitioner’s § 2254 petition is
untimely under 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides
for a one-year statute of limitations for § 2254 petitions; the
limitations period runs 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
(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
(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) provides that “[t]he time
during which a properly filed application for State post-conviction
Page 4 of 10
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 his petition (§ 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 his claim could not have been discovered
previously through the exercise of due diligence (§ 2244(d)(1)(D)).
Therefore, the Court will address the timeliness of Petitioner’s §
2254 petition under only § 2244(d)(1)(A).
Under 28 U.S.C § 2244(d)(1)(A), the relevant starting date for
the limitations period for Petitioner’s § 2254 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.
Here, Petitioner’s conviction became final on January 28, 2004, the
date on which the Illinois Supreme denied leave to appeal, thereby
concluding direct review of Petitioner’s conviction and sentence.
Although the one-year period is tolled during the time a
properly filed postconviction petition or petition for other collateral
Page 5 of 10
review is pending in state court, Petitioner’s § 2254 petition is still
untimely. Judicial review of Petitioner’s initial postconviction
petition concluded on January 24, 2007. Petitioner’s next
postconviction petition was filed in 2009. Even assuming that the
2009 postconviction petition was “properly filed,” the one-year
limitations period expired no later than January 2008. Therefore,
Petitioner’s § 2254 petition, which was filed on November 14, 2017,
is untimely under § 2244(d)(1)(A).
Plaintiff’s postconviction petitions filed after January 2008
provide no avenue for relief. Postconviction proceedings filed after
the expiration of the one-year limitations period do not restart the
one-year period. De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir.
2009) (“It 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 run
does not toll the one-year statute of limitations).
Petitioner does not assert that equitable tolling or equitable
estoppel applies, nor does the Court find any basis for applying
these doctrines here. See Tucker v. Kingston, 538 F.3d 732, 734
Page 6 of 10
(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). The statutory provision mandating that Petitioner
receive no day-for-day credit on his sentence for first degree murder
became law on June 19, 1998. People v. Reedy, 708 N.E.2d 1114,
1121 (Ill. 1999). Petitioner could have raised the claim he asserts in
his § 2254 petition on direct appeal, but he failed to do so.
In addition, Petitioner’s claim is procedurally defaulted.
Before this Court can entertain claims brought in a § 2254 petition,
the petitioner must assert the claims through “one complete round
of the State's established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Here, Petitioner did not raise
his current claim on direct appeal. In fact, the only filing in which
Petitioner brought his current claim to the attention of an Illinois
court was the motion for leave to file a petition for writ of habeas
Page 7 of 10
corpus Petitioner filed with the Illinois Supreme Court in 2017, 15
years after his conviction.
Further, the Court finds that summary dismissal is warranted
on the merits. In his § 2254 petition, Petitioner challenges the
application of 730 Ill. Comp. Stat. 5/3-6-3(a)(2)(i) to his sentence.
This statutory provision provides that a prisoner serving time for
first degree murder shall receive no sentence credit. 730 Ill. Comp.
Stat. 5/3-6-3(a)(2)(i). Petitioner argues that the statute does not
apply to his sentence for first degree murder, claiming that the
statute was not valid until January 22, 1999, months after he
committed his crime. However, the statute provides that it applies
to all first degree murder offenses “committed on or after June 19,
1998,” the date the statute went into effect. 730 Ill. Comp. Stat.
5/3-6-3(a)(2); Reedy, 708 N.E.2d at 1121. Petitioner admits that
his crime occurred in October 1998, meaning that the provision
prohibiting any sentence credit for those convicted of first degree
murder was properly applied to Petitioner’s sentence. Therefore,
Petitioner is not entitled to day-for-day credit on his sentence.
Page 8 of 10
Because it plainly appears from the petition and the attached
exhibits that the petition is untimely and that Petitioner is not
entitled to relief, the Court SUMMARILY DISMISSES Petitioner’s
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (d/e 1). The dismissal of Petitioner’s §
2254 petition is WITH PREJUDICE. The Clerk is DIRECTED to mail
a copy of this Opinion to Petitioner.
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
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
Page 9 of 10
Petitioner a certificate of appealability.
Petitioner’s Application to Proceed in District Court Without
Prepaying Fees or Costs (d/e 2) and Motion for Appointment of
Counsel (d/e 4) are DENIED as MOOT. This case is CLOSED.
ENTER: March 12, 2018
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 10 of 10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?