Foster v. Smith

Filing 17

ORDER entered by Judge Sara Darrow on March 30, 2017. The 1 petition for writ of habeas corpus is DISMISSED, and the 11 motion to dismiss the petition GRANTED. The 15 16 other motions are MOOT. A certificate of appealability is DENIED. The Clerk is directed to enter judgment and close the case. (SC, ilcd)

E-FILED

Thursday, 30 March, 2017 11:44:05 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
CLIFFORD C. FOSTER,

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Petitioner,
v.
KIM SMITH,
Respondent.

Case No. 4:16-cv-04070-SLD

ORDER
Before the Court are Respondent’s motion to dismiss Petitioner Foster’s 28 U.S.C.
§ 2254 application, ECF No. 11, Foster’s motion for status, ECF No. 15, and Foster’s motion for
summary judgment, ECF No. 16. For the following reasons, the motion to dismiss is
GRANTED and Foster’s petition DISMISSED. The other motions are MOOT. In addition, a
certificate of appealability shall not issue.
BACKGROUND1
Foster was convicted in 2004, in Bureau County, Illinois, of predatory criminal sexual
assault of a child. He was sentenced by the Illinois circuit court to a term of fourteen years and
two months of incarceration.2 The judgment was affirmed by the Appellate Court of Illinois, and
on November 29, 2007, the Illinois Supreme Court denied Foster’s petition for leave to appeal.
Foster never petitioned the United States Supreme Court for a writ of certiorari.

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The facts listed here are drawn from Respondent’s motion to dismiss, except where otherwise noted.
Respondent’s motion to dismiss says fourteen years, but the Appellate Court of Illinois, in affirming the judgment,
called it fourteen years and two months. Direct App. Order 1, Mot. Dismiss Ex. B.
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On September 24, 2008, Foster filed a petition for postconviction relief in Illinois circuit
court. The next day, September 25, 2008, the court denied the petition. Foster did not appeal
this denial.
Foster once tried to file a successive postconviction petition in Illinois court. He did so
on June 14, 2013, and was denied leave. This judgment was affirmed on appeal.
He filed his instant and first federal petition for postconviction relief pursuant to 28
U.S.C. § 2254 in this Court on April 11, 2016. ECF No. 1. Respondent, after being directed to
respond, did so in the form of a motion to dismiss on June 17, 2016.
DISCUSSION
I.

Legal Standard on a Petition for Issuance of Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254
District courts may entertain applications for the writ of habeas corpus by persons in

custody of a State in violation of the Constitution. 28 U.S.C. § 2254(a). The writ shall not issue
to a person in custody pursuant to the judgment of a State court unless it appears that the
applicant has exhausted his available remedies in the State’s courts, there is an absence of
corrective process available from the State, or circumstances render that process ineffective to
protect the applicant’s rights. Id. § 2254(b)(1). The Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) established a 1-year time period in which a state prisoner may file a
federal habeas petition, running 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.
Id. § 2244(d)(1).
II.

Analysis
Respondent argues that Foster’s petition is untimely, and must be dismissed for that

reason. Respondent is correct.
To determine if Foster’s application is late, the Court first determines when his petition
became final. The Illinois Supreme Court denied Foster’s petition for leave to appeal his
conviction on November 29, 2007; he had 90 days from the entry of this judgment to petition the
United States Supreme Court for a writ of certiorari. Sup. Ct. R. 13. When the time to do so
elapsed, on February 27, 2008, his state court conviction became final. See Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009) (citing Clay v. United States, 537 U.S. 522, 527 (2003)).
Foster then had one year from the day following this date to file a petition for a writ of
habeas corpus in federal court. Newell v. Hanks, 283 F.3d 827, 833 (7th Cir. 2002); see Fed. R.
Civ. P. 6(a). He filed his petition for federal habeas corpus relief 2,965 days after the state court
conviction became final, or a little more than seven years late. However, any time during which
Foster had a properly filed application for Illinois postconviction review pending is tolled from
that time. 28 U.S.C. § 2244(d)(2). His petition for postconviction relief was pending for two
days—a very small drop in the bucket. His petition before this court is more than seven years
late under AEDPA.
Foster puts forward three arguments to excuse this lateness, all of them meritless.

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First, he argues that some of the time between the date upon which his conviction became
final and the date he filed his habeas petition in this Court should be equitably tolled. Resp. Mot.
Dismiss 2, ECF No. 13. Petitioners may seek to have time tolled equitably, so that an admittedly
late petition is nonetheless considered by a court that declines to count against petitioner some of
the time that has elapsed. Such tolling is “an exceptional remedy available to a habeas petitioner
who shows: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.’” Taylor v. Michael, 724 F.3d 806,
810 (7th Cir. 2013) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). But all that Foster
argues for why equitable tolling should apply to his case is that he “has established such a claim
by notifying the state court of a lack of restricted access to the courts through a letter attached to
the first post-conviction petition.” Resp. Mot. Dismiss 2. This is no basis for equitable tolling.
Further, there is no showing that Foster has been pursuing his rights diligently, or of any
extraordinary circumstances that stood in his way.
Second, he argues that his application presents a claim of actual innocence. Id. If an
unjustifiably late habeas petition presents a claim of actual innocence, it may still be reviewed on
the merits. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (“[A] federal habeas court,
faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas
petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual
innocence has been reliably shown.”). “To be credible, such a claim requires petitioner to
support his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). However, “the
habeas court’s analysis is not limited to such evidence.” House v. Bell, 547 U.S. 518, 537

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(2006). Foster fails to clear the threshold for a “gateway” actual innocence claim, because he
does not support his allegations of constitutional error with reliable new evidence of any kind.
Foster asserts that “the state witness alibied his wereabouts [sic] and . . . [neither] the police nor
the state interviewed the alleged victim in an interview or hearings let alone testify.” Resp. Mot.
Dismiss 3. Foster’s support for his claim of actual innocence amounts to asserting that his
innocence was shown at trial, and claiming that his victim was not interviewed and did not
testify at trial. The assertions are unsupported, not new evidence, and do not suggest in any way
that Foster is actually innocent. He has failed to make a credible claim of actual innocence.
Third, Foster argues that his 2013 Illinois petition for postconviction relief had some
tolling effect on his instant section 2254 application. Id. at 3–4. The Court does not address the
argument because even if it did, his section 2254 application is still years late.
Foster’s arguments are unavailing. His application is barred by the one-year AEDPA
limit.
One matter remains. “The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” § 2254 Rule 11(a). A certificate of
appealability should issue, when a district court denies a habeas petition on procedural grounds,
if “jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). The Court concludes that
jurists of reason would not find it debatable whether Foster’s Petition should be dismissed as
untimely. The certificate shall not issue.
CONCLUSION
Accordingly, the petition for writ of habeas corpus, ECF No. 1, is DISMISSED, and the
motion to dismiss the petition, ECF No. 11, GRANTED. The other motions, ECF Nos. 15, 16,

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are MOOT. A certificate of appealability is DENIED. The Clerk is directed to enter judgment
and close the case.

Entered this 30th day of March, 2017.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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