Bell v. Schwartz et al

Filing 57

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 5/4/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
TERRELL BELL #B17431,
)
)
Petitioner,
)
)
v.
)
)
RANDY DAVIS, Warden,
)
)
Respondent.
)

No. 10 C 4334
USCA No. 10-2979

MEMORANDUM ORDER
Terrell Bell (“Bell”) has waited for fully nine months after
the entry of this Court’s July 30, 2010 memorandum opinion and
order (“Opinion”) that dismissed both Bell’s 28 U.S.C. §22541
Petition for Writ of Habeas Corpus (“Petition”) and this action
to file what he labels “Petitioner’s R. 60(b) Motion for Relief
from Judgment.”

Even apart from the questions whether his

current filing has been “made within a reasonable time” (Fed. R.
Civ. P. (“Rule”) 60(c)(1)) and whether this Court has
jurisdiction to entertain it,2, it is without substantive merit.
In the Opinion this Court explained in careful detail why

1

All further references to Title 28’s provisions will
simply take the form “Section--.”
2

Bell’s case is listed on the most recent of the monthly
printouts received from the Court of Appeals as pending there
under Case No. 10-2979. If so, this Court’s understanding is
that the filing of a Rule 60(b) motion allows this Court to
consider whether the motion has plausibility and, if so, to
request a remand so it will acquire jurisdiction to entertain it.
This memorandum order explains briefly why no such remand will be
requested.

the Petition was well out of time, because the tolling provisions
of Section 2244(d)(2) had unquestionably not saved Bell from the
expiration of the one-year limitation period established by
Section 2244(d)(1)(A).

That determination was made on the basis

of court dates that were not subject to dispute or contradiction,
not on the basis of any aspect of the Attorney General’s Answer
to the Petition that might be countered by any reply from Bell.
In that respect Opinion nn. 2 and 6 explain:
2/ Although the Illinois Attorney General’s office, as
counsel for the respondent Warden, has noticed up the
just-filed motion to dismiss for presentment on
August 4, the ensuing text explains why this case can
and should be resolved on the basis of indisputable
court records, so that neither such presentment nor the
provision of any further input from the petitioner is
needed.
6/ As n.2 indicates, even though Section 2254 Rule 5(e)
contemplates the prospect of a reply by a petitioner,
in this instance every step of the way has been
dictated by official court documents, rather than
through any reliance on some factual determination that
might be countered by Bell. Thus no room is left for
such a reply.
Accordingly Bell’s current effort to revive the Petition
plainly lacks merit.

Hence his Rule 60(b) motion will not be

entertained.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

May 4, 2011

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