Clifton V. Bartley

Filing 34

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 6/18/2013: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MELVIN CLIFTON,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
KEN BARTLEY,
Respondant.

No. 08 C 4928

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Melvin Clifton’s (Clifton) petition
for writ of habeas corpus (Petition). For the reasons stated below, the Petition is
dismissed.

BACKGROUND
Clifton was convicted in a jury trial in Illinois state court of first degree
murder and attempted first degree murder. On May 22, 1998, Clifton was sentenced
to 55 years of imprisonment on the first degree murder conviction and 25 years of
imprisonment on the attempted first degree murder conviction, with the sentences to
run consecutively. Clifton appealed his conviction and sentence, and on April 24,
2001, the Illinois Appellate Court affirmed Clifton’s conviction, but vacated the
1

order requiring Clifton’s sentences to run consecutively in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). See People v. Clifton, 750 N.E.2d 686, 708 (Ill. App.
Ct. 2001). Clifton filed a petition for leave to appeal (PLA) to the Illinois Supreme
Court, which was denied on February 5, 2003. However, in its February 5, 2003
order, the Illinois Supreme Court directed the Illinois Appellate Court to vacate the
judgment it entered on April 24, 2001, and reconsider its decision in light of
additional case law. See People v. Clifton, 783 N.E.2d 31, 31 (Ill. App. Ct. 2003).
On August 4, 2003, in a revised decision, the Illinois Appellate Court again affirmed
Clifton’s conviction. People v. Clifton, 795 N.E.2d 887, 903 (Ill. App. Ct. 2003).
The Illinois Appellate Court also held that the consecutive sentences originally
imposed in Clifton’s case were proper, and Clifton’s original sentence was therefore
affirmed. Id. Clifton did not file a PLA relating to the Illinois Appellate Court’s
revised decision.
On May 17, 2001, during the pendency of Clifton’s direct appeal, Clifton filed
a petition for post-conviction relief (Post-Conviction Petition) in the Circuit Court of
Cook County, Illinois. On June 30, 2004, after an evidentiary hearing, the trial court
denied the Post-Conviction Petition. (R. Mot. Ex. F, C7). Clifton appealed, and the
Illinois Appellate Court affirmed the denial of Clifton’s Post-Conviction Petition on
June 30, 2006. (R. Mot. Ex. G, 1). Clifton then filed a PLA to the Illinois Supreme
Court relating to his Post-Conviction Petition, which the Illinois Supreme Court
denied on November 29, 2006. (R. Mot. Ex. H). The record reflects that Clifton did

2

not file a timely petition for writ of certiorari in the United States Supreme Court
with respect to his Post-Conviction Petition. (Pet. 2, 31); (R. Mot. Par. 4).
On August 10, 2007, Clifton filed a successive petition for post-conviction
relief (Successive Petition) in the Circuit Court of Cook County. The People moved
to dismiss the Successive Petition, and the motion to dismiss was granted on April
15, 2010. (R. Mot. Ex. J, C49, C12). On May 14, 2010, Clifton appealed the
decision, and on November 18, 2011, the Illinois Appellate Court affirmed. (R. Mot.
Ex. K). Clifton did not file a PLA to the Illinois Supreme Court relating to his
Successive Petition.
Clifton first filed a habeas petition in this court on August 28, 2008, while
Clifton’s Successive Petition was pending in the Circuit Court of Cook County. On
November 13, 2008, this court dismissed Clifton’s habeas petition without prejudice
since Clifton had not exhausted all of the remedies available to him at the state court
level. On February 24, 2012, Clifton filed an amended habeas petition in this court,
which this court dismissed without prejudice since it was not submitted on the forms
required under Local Rule 81.3(a) of this court. Subsequently, Clifton filed the
instant Petition, and on January 9, 2013, the instant action was reinstated. Clifton
alleges in his Petition that he received ineffective assistance of trial counsel, that his
due process rights were violated, that the evidence against him was insufficient to
sustain a conviction, that his sentence violates the United States Supreme Court
decision in Apprendi, and that “certain void and unconstitutional statutes and laws of

3

Illinois were utilized as charging instruments.” (Pet. 60). Respondent now moves to
dismiss the Petition.

LEGAL STANDARD
An individual in custody pursuant to state court judgment may seek a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim--(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to
clearly established federal law “‘if the state court applies a rule different from the
governing law set forth in [Supreme Court] cases, or if it decides a case differently
than [the Supreme Court has] done on a set of materially indistinguishable facts.’”
Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S.
685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable
application of clearly established federal law “‘if the state court correctly identifies
the governing legal principle from [Supreme Court] decisions but unreasonably
applies it to the facts of the particular case.’” Emerson, 575 F.3d at 684 (quoting
Bell, 535 U.S. at 694).
4

DISCUSSION
I. Timeliness of Petition
Respondent argues that the instant Petition should be dismissed as untimely
based on the statute of limitations for filing a habeas petition. Under 28 U.S.C. §
2244(d)(1):
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; (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). The Petition does not allege any state-created impediment to
filing the Petition, any newly recognized constitutional right, or any newly
discovered factual predicate of the claims presented. Thus, 28 U.S.C. §
2244(d)(1)(A) is the only provision relevant to the instant Petition.
As discussed above, on August 4, 2003, the Illinois Appellate Court affirmed
Clifton’s conviction and sentence on direct appeal. Under the version of Illinois
Supreme Court Rule 315(b) in effect at that time, Clinton had twenty-one days from
that date, or until August 25, 2003, to file a PLA in the Illinois Supreme Court. Ill
5

Sup. Ct. R. 315(b). Clinton failed to file such a petition, and thus the judgment in
Clinton’s case became final, and the limitations period began to run, on August 25,
2003. Thus, pursuant to 28 U.S.C. § 2244(d)(1)(A), the deadline for Clinton to file a
federal habeas petition was August 25, 2004.
As discussed above, Clinton filed a Post-Conviction Petition in state court on
May 17, 2001. Since the Post-Conviction Petition was properly filed, such filing
tolled the limitations period for filing a federal habeas petition, pursuant to 28 U.S.C.
§ 2244(d)(2), until November 29, 2006, when the Illinois Supreme Court denied the
PLA relating to the Post-Conviction Petition. See 28 U.S.C. § 2244(d)(2)(stating that
“[t]he time during which a properly filed application for State post-conviction 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”); see also
Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008)(noting that the statute of
limitations is not tolled “during the 90 days [a petitioner] could have sought certiorari
after the state supreme court denied leave to appeal in his postconviction
proceedings”)(citing Lawrence v. Florida, 549 U.S. 327 (2007)). Therefore,
Clifton’s time for filing a federal habeas petition began to run on November 29,
2006, and expired on November 29, 2007.
Although Clifton filed the Successive Petition on August 10, 2007, such filing
did not toll the limitations period since the Successive Petition was not “properly
filed” within the meaning of 28 U.S.C. § 2244(d)(2). See 725 ILCS 5/122-

6

1(f)(permitting “[o]nly one petition [to] be filed by a petitioner . . . without leave of
the court”); see also Martinez v. Jones, 556 F.3d 637, 638-39 (7th Cir.
2009)(indicating that “where state law requires pre-filing authorization-such as an
application for permission to file a successive petition-simply taking steps to fulfill
this requirement does not toll the statute of limitations,” and that “[i]nstead the
second petition tolls the limitations period only if the state court grants permission to
file it”)(citations omitted). Clifton did not file his initial federal habeas petition until
August 19, 2008, which was almost eight months after the November 29, 2007, date
upon which the statute of limitations expired. Therefore, even if the instant Petition
were deemed to relate back to the date of Clifton’s initial federal habeas filing, the
instant Petition would be untimely.

II. Equitable Tolling Doctrines
Although Clifton has not argued that the court should apply any equitable
tolling doctrines to the Petition, the court will consider whether equitable tolling
might be appropriate in this case. If applicable, a tolling doctrine would “stop the
statute of limitations from running even if the accrual date ha[d] passed.” Cada v.
Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990). The first potentially
relevant doctrine is the doctrine of equitable estoppel, which “comes into play” if the
respondent took “active steps to prevent” the petitioner from filing the Petition in
time, such as “by promising not to plead the statute of limitations.” Id. at 450-51

7

(citations omitted). No such facts have been presented with respect to the Petition,
and therefore the doctrine of equitable estoppel does not apply.
The second potentially relevant doctrine is the doctrine of equitable tolling.
The Seventh Circuit has applied the equitable tolling doctrine to habeas petitions that
would otherwise be barred by 28 U.S.C. § 2244(d). See, e.g., Simms v. Acevedo,
2010 WL 572742, at *7 (7th Cir. 2010); Tucker v. Kingston 538 F.3d 732, 734 (7th
Cir. 2008). Equitable tolling is an extraordinary remedy that is “rarely granted.”
Tucker, 538 F.3d at 734; see also Simms at *7 (declining to apply equitable tolling to
habeas petition filed one day after statute of limitations expired because petitioner
“failed to act diligently in pursuing his federal rights” when petitioner “waited nearly
a year from the withdrawal of his previous state court petition to begin his final
attempts at state court review”). For Clifton to be entitled to equitable tolling, he
must show “that extraordinary circumstances outside of his control and through no
fault of his own prevented him from timely filing his petition, . . . [and that] he has
diligently pursued his claim, despite the obstacle.” Id. (citations omitted). Clifton
has made no such showing, and in fact, Clifton has failed to file any response to the
motion to dismiss. Therefore, Respondent’s motion to dismiss is granted.

III. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the court must
issue or deny a certificate of appealability “when it enters a final order adverse to the
8

applicant.” Id. A district court should only issue a certificate of appealability “if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). In addition, when a habeas petition is denied strictly on
procedural grounds, as in this case, a certificate of appealability should only be
issued if “the prisoner shows, at least, 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. McDonnell, 529 U.S. 473, 484 (2000). In the instant
action, Clifton has not shown that a reasonable jurist could debate the untimeliness of
the Petition. Therefore, should Clifton decide to appeal this court’s ruling, this court
finds that a certificate of appealability would not be warranted.

CONCLUSION
Based on the foregoing analysis, the Petition is dismissed, and the court
declines to issue a certificate of appealability.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge

Dated: June 18, 2013

9