Marin v. Hodge et al

Filing 6

MEMORANDUM Order signed by the Honorable Milton I. Shadur on 1/9/2012. Mailed (vmj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
CESAR MARIN #N-0222l,
)
)
Petitioner,
)
)
v.
)
)
MARC G. HODGE, WARDEN,
)
)
Respondent.
)

No.

12 C 46

MEMORANDUM ORDER
Cesar Marin (“Marin”) has filed a self-prepared 28 U.S.C.
§22541 Petition for Writ of Habeas Corpus (“Petition”)2 in which
he seeks relief from a nearly-three-decades-old conviction on
charges of murder, armed robbery and attempt murder, with a 75year custodial sentence applicable to the first of those charges.
This Court has conducted the preliminary review called for by
Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts (“Section 2254 Rules”), and it finds that
an immediate dismissal of the Petition is called for.
First, however, it is necessary to clear up a
misunderstanding on Marin’s part as to the required filing fee
for his Petition.

Although federal habeas proceedings by state

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

“Self-prepared” is employed here in the sense that Marin
has used the printed form of Petition provided by this District
Court’s Clerk’s Office, supported by handprinted inserts and a
detailed 19-page handprinted statement coupled with a number of
documentary exhibits.

court prisoners call for payment of a modest $5 filing fee, Marin
has submitted an In Forma Pauperis Application (“Application”) on
a Clerk’s-Office-supplied form.

That Application is denied, and

Marin is ordered to pay the $5 filing fee on or before
January 23, 2012.3
To turn to the Petition itself, Marin’s conviction and
sentence go back to 1982.

After a partially successful appeal

that resulted in a remand for resentencing, which took place on
May 27, 1982, Marin then made two attempts to obtain postconviction relief from the state court system.

Both were

ultimately unsuccessful, the first through an Illinois Appellate
Court affirmance at the end of September 1988 and the second
through an Illinois Appellate Court decision at the beginning of
October 2000.
It is painfully obvious from that time sequence that Marin
needs to find a source of relief from the one-year limitation
period prescribed by Section 2244(d)(1).

Under that statute the

limitation period runs 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;

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To facilitate that payment, this Court is
contemporaneously transmitting a copy of this memorandum order to
the trust fund officer at Lawrence Correctional Center, where
Marin is in custody. It is expected that the authorities there
will charge Marin’s trust fund account and transmit the $5 fee to
this District Court’s Clerk’s Office, with this case number
(12 C 46) to be designated on the remittance.
2

(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.
To that end Marin seeks to invoke what he calls the “new
rule” established in accordance with the United States Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
And he seeks to buttress that by citing to a number of other
federal and state court cases.
But none of those cases does Marin any good, for both
Apprendi and the subsequent holding that Apprendi applies
retroactively go back more than a decade, and not one of the many
other cases that Marin cites comes even close to a vintage that
would qualify it for compliance with Section 2244(d)(1).

In

short, Marin has struck out by many years in his effort to bring
himself within the Section 2244(d)(1) one-year limitation period.
And that being so, it is an understatement to quote the Section
2254 Rule 4 language that “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
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relief in the district court.”

Accordingly this Court complies

with that Rule 4 mandate to dismiss the Petition, and it denies
Marin’s contemporaneous motion for the appointment of counsel as
moot.

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

January 9, 2012

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