Tolbert v. Cook County Dept. of Corr. et al
Filing
3
WRITTEN Opinion entered by the Honorable Blanche M. Manning on 12/6/2011: Petitioner is granted thirty days in which to: (1) either pay the $5.00 statutory filing fee or submit an application for leave to proceed in forma pauperis; and (2) show good cause in writing why the habeas petition should not be dismissed as untimely. The Clerk is directed to send Petitioner an in forma pauperis application along with a copy of this order. Failure of Petitioner to comply with this order within thirty days will result in summary dismissal of this case pursuant to Rule 4 of the Rules Governing Section 2254 Cases. (For further details see written opinion). Mailed notice(smm)
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge
Blanche M. Manning
CASE NUMBER
11 C 8235
CASE
TITLE
Sitting Judge if Other
than Assigned Judge
DATE
December 6, 2011
U.S. ex rel. George Tolbert (#B-13301) v. Cook County Dep’t of Corrections, et al.
DOCKET ENTRY TEXT:
Petitioner is granted thirty days in which to: (1) either pay the $5.00 statutory filing fee or submit an application
for leave to proceed in forma pauperis; and (2) show good cause in writing why the habeas petition should not
be dismissed as untimely. The Clerk is directed to send Petitioner an in forma pauperis application along with
a copy of this order. Failure of Petitioner to comply with this order within thirty days will result in summary
dismissal of this case pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
O
Docketing to mail notices.
[For further details see text below.]
STATEMENT
George Tolbert, prisoner in custody at the Cook County Jail (it appears that Petitioner is in custody at the
jail not as a pre-trial detainee, but because he has been arrested for a parole violation on his previous conviction
and sentence), has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges the sentence he received on his 2006, Cook County conviction for burglary on the grounds that he was
not notified by the court when he accepted his plea agreement that he would be required to serve three years
mandatory supervised release after he had completed his period of incarceration.
Although the Clerk has accepted the pro se petition for docketing pursuant to Rule 5(d)(4) of the Federal
Rules of Civil Procedure, Petitioner has neither paid the $5.00 filing fee nor filed a petition for leave to proceed
in forma pauperis. If Petitioner wishes to proceed with this action, he must either pay the $5.00 filing fee or, in
the alternative, file an in forma pauperis application complete with a certificate from a prison official stating the
amount on deposit in the prisoner’s trust account. The Clerk will provide Petitioner with an in forma pauperis
application. If Petitioner fails to pay the filing fee or file a fully completed in forma pauperis application within
thirty days, the Court will dismiss this action.
As an additional concern, it appears that Petitioner has failed to exhaust his state court remedies, as
required. An inmate who seeks to challenge a state conviction under 28 U.S.C. § 2254 must first exhaust his state
court remedies as to all his claims. See Rose v. Lundy, 455 U.S. 509 (1982). The petition indicates that Petitioner
filed no direct appeal of his conviction, and filed no collateral proceedings. Federal habeas relief is not available
if Petitioner has not exhausted his state court remedies. See 28 U.S.C. § 2254(b)(1)(A). “Failure to exhaust
available state court remedies constitutes a procedural default.” Chambers v. McCaughtry, 264 F.3d 732, 737
(7th Cir. 2001), citing Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir. 1999).
(CONTINUED)
AWL
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STATEMENT (continued)
Additionally, under the Antiterrorism and Effective Death Penalty Act of 1996, “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.” 28 U.S.C. § 2244(d)(1). The one year runs from the latest of several dates, including: (1) the
date on which the conviction became final by the conclusion of direct review or the expiration of the time for
seeking such review; (2) 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; (3) 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 (4) the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence. Id. “The time period during which a properly filed application
for State post-conviction or other collateral review . . . is pending shall not count toward any period of limitation.
. . .” 28 U.S.C. § 2244(d)(2).
In this case, a review of Petitioner’s petition indicates that he entered a plea agreement on December 9,
2008. He failed to appeal the conviction or to file any kind of post-conviction proceedings. In light of the fact that
Petitioner did not move to withdraw his plea and did not file a direct appeal, his conviction became final on January
9, 2009, which was 30 days after he pled guilty. See, e.g., Beshears v. Veach, No. 07-2134, 2008 U.S. Dist. LEXIS
10466, 2008 WL 427834, at *2 (C.D. Ill. Feb. 13, 2008) (conviction by guilty plea final when time for withdrawing
plea expires). Therefore, Petitioner’s habeas petition was due one year later on January 9, 2010. Petitioner does not
indicate that he filed any motions which would have tolled the running of the statute of limitations. Thus, if “the
date on which the judgment of conviction becomes final” governs, 28 U.S.C. § 2244(d)(1)(A), the one-year statute
of limitations on Petitioner’s federal habeas petition ran out on January 9, 2010. The factual predicate to
Petitioner’s claim appears to be the requirement that he serve three years mandatory supervised release at the end
of his period of incarceration, so to the extent that Petitioner is challenging the period of mandatory supervised
release, the same date (January 9, 2010) applies. Since the federal habeas petition was filed on November 17, 2011,
the one-year statute of limitations would appear to bar this case. See Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.
1996), rev’d on other grounds, 521 U.S. 320 (1997) (the § 2244(d) statute of limitation applies to all habeas corpus
petitions filed after April 23, 1997). While § 2244(d)(1) provides several specific exceptions to this rule, none
appear to apply to this case. Accordingly, the Court gives Petitioner thirty days in which to show cause why this
action should not be dismissed as untimely.
For the foregoing reasons, the petitioner is granted thirty days in which to: (1) either pay the $5.00 statutory
filing fee or submit an application for leave to proceed in forma pauperis; and (2) show good cause in writing why
the habeas petition should not be dismissed for failure to exhaust his state court remedies, as procedurally defaulted,
and untimely. Failure of Petitioner to comply with this order within thirty days will result in summary dismissal
of this case pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
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