Sims v. Hardy et al

Filing 41

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 4/3/2013.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TERRELL SIMS,
Petitioner,
vs.
MICHAEL LEMKE, Warden,
Respondent.

)
)
)
)
)
)
)
)
)

11 C 3326
Judge Feinerman

MEMORANDUM OPINION AND ORDER
On October 16, 2012, the court dismissed Terrell Sims’s petition for a writ of habeas
corpus as time-barred and denied a certificate of appealability. 2012 WL 4932609 (N.D. Ill. Oct.
16, 2012). On November 14, 2012, Sims filed a motion for an extension of time to file a motion
for relief from judgment under Federal Rule of Civil Procedure 60(b), Doc. 27, which the court
construed to be a motion for reconsideration under Rule 59(e), Doc. 32.
Sims first argues that he should get the benefit of Martinez v. Ryan, 132 S. Ct. 1309
(2012). Doc. 27 at 3. Martinez was issued after Sims responded to the Warden’s motion to
dismiss the habeas petition as untimely. Docs. 22 & 23. Martinez holds in pertinent part:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
Martinez, 132 S. Ct. at 1320. Martinez does not help Sims because his problem is not procedural
default in state court, but rather the statute of limitations in federal court. 2012 WL 4932609, at
*1. In any event, the alleged ineffectiveness of counsel contributing to Sims’s limitations
-1-

problem occurred on a discretionary appeal to the Supreme Court of Illinois, not during an
initial-review collateral proceeding. Ibid. Martinez does not apply where, as here, the alleged
ineffective assistance occurs on a discretionary appeal. Martinez, 132 S. Ct. 1320 (“The holding
in this case does not concern attorney errors in other kinds of proceedings, including … petitions
for discretionary review in a State’s appellate courts.”).
Second, Sims advances a new factual predicate to support his argument for equitable
tolling. Doc. 34 at 2-3, 32-34. In his response to the Warden’s motion to dismiss, Sims sought
equitable tolling on the ground that the prison system lost unspecified property of his. Doc. 23 at
3. In his reconsideration motion, Sims elaborates that the lost property included records from his
state court proceedings that he needed to prepare his federal habeas petition. Doc. 34 at 2-3.
Settled law holds that Rule 59(e) motions are “not appropriately used to advance arguments or
theories that could and should have been made before the district court rendered a judgment, or
to present evidence that was available earlier.” Miller v. Safeco Ins. Co. of Am., 683 F.3d 805,
813 (7th Cir. 2012) (internal quotation marks omitted); see Moro v. Shell Oil Co., 91 F.3d 872,
876 (7th Cir. 1996) (“[Rule 59(e)] does not allow a party to introduce new evidence or advance
arguments that could and should have been presented to the district court prior to the
judgment.”). Because Sims could have advanced his new argument in his response to the
Warden’s motion to dismiss, it is not appropriately raised in a Rule 59(e) motion.
In any event, the additional facts presented in Sims’s reconsideration motion hurt rather
than help him. To support his equitable tolling claim, Sims attaches a grievance he filed with the
Pontiac Correctional Center on October 28, 2011, which complains that prison authorities failed
to transfer his property with his person when he transferred from Stateville Correctional Center
to Pontiac in September 2011. Doc. 34 at 33 (“While at Stateville [Correctional Center,] I was
-2-

allowed to have all of my property, and I had everything before I left.”). But the deadline for
Sims to file his habeas petition was March 18, 2011, 2012 WL 4932609, at *2, so any
impediment arising after that date, including the impediment referenced in his reconsideration
motion, could not possibly have impacted his ability to timely file his petition. Even worse for
Sims, the grievance indicates that Sims had access to his papers before September 2011, which
means that the purported impediment to a timely habeas filing was no impendent at all.
The remainder of Sims’s Rule 59(e) motion addresses the merits of his habeas petition.
Doc. 34 at 3-31. Because the petition was untimely, the merits need not be addressed.
For the foregoing reasons, Sims’s Rule 59(e) motion is denied. Because the rejection of
Sims’s new arguments is not debatable, no certificate of appealability will be issued. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (“Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should be allowed to
proceed further. In such a circumstance, no appeal would be warranted.”).

April 3, 2013
United States District Judge

-3-