Davis v. Schwartz et al

Filing 18

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 10/6/2011.(mr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America ex rel.
JOSEPH DAVIS,

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Petitioner,
v.
GREGORY SCHWARTZ, Warden,
Pickneyville Correctional Center,
Respondent.

No. 11 C 2998

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Respondent’s motion to dismiss. For the
reasons stated below, the motion to dismiss is granted.

BACKGROUND
In 1997, Davis was convicted in state court in a bench trial of attempted
murder and aggravated kidnapping and was sentenced to a 20 year term on the
kidnapping and a concurrent extended 50 year term for attempted murder. Davis was
convicted based on evidence showing that in a dispute over money Davis took part in
forcing a victim into the trunk of a car, pouring gasoline on the victim, and lighting
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the victim on fire.
Davis appealed his conviction and on March 11, 1999, the state appellate court
affirmed the conviction. Davis did not file a petition for leave to appeal (PLA) to the
Illinois Supreme Court on his direct appeal. On October 15, 2007, Davis filed a pro
se petition for relief from judgment, which was denied by the trial court on April 10,
2008. Davis did not appeal the denial in a timely fashion and the Illinois Appellate
Court denied Davis’ motion for leave to file a late notice of appeal. Davis then filed
a PLA with the Illinois Supreme Court which was denied on September 30, 2009.
On June 1, 2010, Davis filed a state habeas corpus complaint in state court, which
was dismissed on July 29, 2010. Davis appealed the dismissal, but subsequently
moved to dismiss his own appeal. There is no indication in the record that Davis
filed any other post-conviction or collateral attacks on his conviction. On May 3,
2011, Davis filed the instant petition for writ of habeas corpus (Petition) pursuant to
28 U.S.C. § 2254 (Section 2254 Petition). Respondent 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:

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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).

DISCUSSION
Respondent argues that the Petition is untimely and that there is no basis to
equitably toll the limitations period.

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I. Untimely Filing
Respondent argues that the Petition is untimely and the limitations period
should not be equitably tolled. The statute of limitations for a Section 2254 Petition
is provided in 28 U.S.C. § 2244(d) (Section 2244(d)), which states the following:
(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.
(2) The time during which a properly filed application for State postconviction 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). In the instant action, the Illinois Appellate Court affirmed
Davis’ convictions on March 11, 1999, and he did not file a PLA. Thus, Davis’
conviction became final under Section 2244(d)(1)(A) twenty-one days later on April
1, 1999 when the time for the filing of a PLA expired. Davis thus had until April 1,
2000, to file a 2254 Petition. Even when considering the mailbox rule for pro se
inmate filings, Davis mailed the Petition to the court in this case on April 28, 2011,
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which was well past the limitations period.
Davis argues that the conclusion of his collateral review occurred later, but
Section 2244(d)(1)(A) explicitly provides that the limitations period runs from the
conclusion of the “direct review.” Id. The filing by Davis of his petition for relief
from judgment in 2007 did not toll the limitations period since at that point the
statute of limitations for his Petition had already long since expired. Thus, the filing
of the Petition in this case in May 2011, was clearly untimely. Nor has Davis
provided any basis to show that the statute of limitations should have been equitably
tolled under the equitable tolling doctrines. Lee v. Cook County, Ill., 635 F.3d 969,
972 (7th Cir. 2011)(stating that “[a] litigant is entitled to equitable tolling if he shows
(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing”)(internal quotations
omitted)(quoting in part Holland v. Florida, 130 S.Ct. 2549, 2562 (2010)). Davis
has not shown that he has been diligently pursuing his Petition or that extraordinary
circumstances prevented him from filing his Petition in a timely manner. Therefore,
Respondent’s motion to dismiss is granted.

II. Merits of Petition
The court notes that even if the Petition had been timely, it would have been

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denied on its merits. Davis presents the following claims in his Petition: (1) his
custodial statement was the result of duress and coercion by police, (2) the
prosecutor relied on perjured testimony in proving the State’s case, (3) the trial court
abused its discretion on disbelieving testimony presented by Davis (4) the trial court
erred by admitting the transcript of an unavailable victim, (5) the trial court erred at
sentencing by giving excessive weight to an aggravating factor, (6) the trial court
erred by failing to hold a hearing to assess whether Davis’ trial counsel was
competent, (7) the trial court improperly sentenced Davis to an extended term
sentence, and (8) there is a conflict between certain state statutes dealing with
sentencing credits and supervised release. Davis, however, has not pointed to
evidence of coercion by police, and Davis has not shown that there was insufficient
evidence to convict him in the absence of his statement. Davis acknowledges in his
Petition that there were witnesses presented by the State that implicated him in the
crime. Also, although Davis contends that some witnesses did not testify truthfully
and committed perjury, Davis has not shown that the prosecutor relied on any
perjured testimony or that the court could not have reasonably believed such
testimony. Nor has Davis shown that it was unreasonable for the trial court to
disbelieve certain testimony presented by Davis at trial.
Davis contends that his trial counsel was not competent and argues that the

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trial court should have conducted a hearing to evaluate his counsel, but Davis has not
shown that his trial counsel acted outside the scope of effective assistance of counsel.
Also, most of the decisions criticized by Davis involved tactical decisions for which
counsel is given deference. See, e.g., United States v. Lathrop, 634 F.3d 931, 937
(7th Cir. 2011)(indicating that “review of an attorney’s tactical decisions is highly
deferential”). Nor has Davis shown that the trial court erred in any manner in
sentencing Davis to an extended sentence based on the serious crime involving the
brutal burning of the victim. Finally, Davis contends that he was denied his right to
confrontation because the court admitted into evidence a transcript of testimony of
the victim since the victim was not available for trial. (Pet. 17). Davis argues that he
had a constitutional right to confront in court and cross-examine his accuser. (Pet.
17). Davis has not shown that any of his constitutional rights were violated by the
absence of the victim at the trial. See, e.g., Smith v. McKee, 598 F.3d 374, 387 (7th
Cir. 2010). The court also notes that the record indicates that Davis was not able to
confront the victim face-to-face at trial because of Davis’ own heinous actions in
causing such severe harm to the victim. According to the Illinois Appellate Court, at
the time of Davis’ trial, his victim was in a coma at one point and was still living in a
nursing home due to the injuries he received as a result of the incident. (Ex. A 2).
Davis has not presented any evidence relating to any of the above claims that

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shows that his conviction or sentence 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 that his conviction or
sentence 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. Thus, even
if the Petition were timely, it lacks any merit.

CONCLUSION
Based on the foregoing analysis, Respondent’s motion to dismiss is granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: October 6, 2011

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