Hernandez v. Hodge et al

Filing 16

MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 1/30/2013.(mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAFAEL HERNANDEZ,
Petitioner,
v.
MARC HODGE, Warden,
Lincoln Correctional Center,
Respondent.

)
)
)
)
)
)
)
)
)
)

CASE NO.: 12-CV-4332
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Respondent Marc Hodge’s motion to dismiss [8]
Petitioner Rafael Hernandez’s petition for habeas corpus [6] on the ground that the petition is
time barred under the one year statute of limitations that applies to federal habeas corpus
petitions under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). For the reasons
stated below, Respondent’s motion [8] is granted.
I.

Background
On September 22, 2006, Petitioner pleaded guilty in the Circuit Court of Cook County to

one count of aggravated criminal sexual assault and was sentenced to twelve years in prison.
Petitioner did not move to withdraw his guilty plea.

He currently is in the custody of

Respondent, the Warden of the Lincoln Correctional Center in Lincoln, Illinois.
Nearly three years later, on August 24, 2009, Petitioner filed a state post-conviction
petition in the Circuit Court of Cook County. His post-conviction proceedings concluded on
May 14, 2012, when his petition for a writ of certiorari was denied by the United States Supreme
Court. See Hernandez v. Illinois, 132 S. Ct. 2390 (2012). On May 30, 2012, Petitioner signed

this federal habeas petition, raising four issues: (a) the trial court failed to admonish him, prior to
accepting the guilty plea, that he would have to serve a term of mandatory supervised release
(MSR) after his release from prison; (b) the MSR term violates separation of powers principles;
(c) the MSR term is a second sentence that subjects him to double jeopardy; and (d) the MSR
term violates due process. On July 25, 2012, Respondent moved to dismiss the petition with
prejudice as time-barred.
II.

Analysis
It is undisputed that Petitioner has no further state court avenues of review, and thus he

has exhausted his available state remedies as required by 28 U.S.C. § 2254(b). The question
raised in Respondent’s motion is whether the petition should be dismissed as untimely under the
one year statute of limitations for Section 2254 petitions set forth in 28 U.S.C. § 2244(d)(1).
Section 2244(d)(1) states:
A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to a judgment of a State court. The
limitation period shall run from the latest of –—
(A)

the date on which 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.

28 U.S.C. § 2244(d)(1).

2

In his petition, Petitioner did not allege a state-created impediment to filing, a newlyrecognized and retroactive constitutional right, or a subsequent discovery of the factual predicate
of a claim. See 28 U.S.C. §2244(d)(1)(B)-(D). Therefore, Respondent argues that the date on
which Petitioner’s conviction became final by the expiration of time for seeking review is the
only applicable date on which to start § 2244(d)(1)’s one-year limitations period. See 28 U.S.C.
§2244(d)(1)(A). Because Petitioner did not file a timely motion to withdraw his guilty plea, his
conviction became final on October 22, 2006, thirty days after he pleaded guilty. See Ill. Sup.
Ct. R. 604(d) (no appeal from judgment entered upon guilty plea unless within thirty days of
sentence, motion to, inter alia, withdraw plea is filed); People v. Brooks, 908 N.E.2d 32, 36 (Ill.
2009); see also Wright v. Chandler, 2010 WL 5244766, at *1 (N.D. Ill. Dec. 10, 2010) (when
petitioner pleads guilty in state court, judgment becomes final for purposes of § 2244(d)(1)(A)
upon expiration of thirty-day period to file motion to withdraw plea); Williams v. Acevedo, 2008
WL 2561217, at *3 (N.D. Ill. June 24, 2008) (same). Thus, Petitioner had until October 22, 2007
to file a timely habeas petition in this Court. See 28 U.S.C. § 2244(d)(1)(A); Coker v. Chandler,
2011 WL 116890, at *1 (N.D. Ill. Jan. 13, 2011) (under § 2244(d)(1)(A), time to file timely
habeas petition for petitioner who did not file motion to withdraw guilty plea in state court
expired one year after last day to file such motion); Beshears v. Veach, 2008 WL 427834, at *2
(C.D. Ill. Feb. 13, 2008) (same).
Petitioner’s 2009 post-conviction petition was filed too late to revive the already-expired
limitations period under 28 U.S.C. § 2244(d)(2). See Teas v. Endicott, 494 F.3d 580, 582-83
(7th Cir. 2007) (where time under § 2244(d)(1)(A) has long expired before filing of state postconviction petition, no collateral review “was pending” in state court and tolling provision under
§ 2244(d)(2) does not render petition timely); Escamilla v. Jungwirth, 426 F.3d 868, 870 (7th

3

Cir. 2005) (“state court’s willingness to entertain a belated collateral attack on the merits does
not affect the timeliness of the federal proceeding”). Petitioner’s state court collateral attack—
filed in 2009 after § 2244(d)(1)(A)’s limitations period had expired—was too late to have any
tolling effect. Under § 2244(d)(2), the limitations period is tolled during the pendency of a
“properly filed” application for post-conviction relief or other collateral review. See Pace v.
DiGuglielmo, 544 U.S. 408, 410 (2005).

However, between October 22, 2006, when the

limitations period began running under § 2244(d)(1)(A), and August 24, 2009, when Petitioner
filed his post-conviction petition, almost three years elapsed. Because § 2244(d)(1)’s limitations
period had already expired, the state post-conviction petition was filed too late to have any
tolling effect under § 2244(d)(2). See Escamilla v. Jungwirth, 426 F.3d 868, 870 (7th Cir. 2005)
(“The state court’s willingness to entertain a belated collateral attack on the merits does not
affect the timeliness of the federal proceeding, because no state collateral review was ‘pending’
during 1998 and 1999”).
In his response brief, Petitioner does not dispute the filing dates or the applicability of the
one-year limitations period. Instead, he misreads the applicable law and the Court’s docket. In
regard to the law, Respondent’s motion to dismiss argued that the period began to run when the
judgment became final under § 2244(d)(1)(A). In his response, Petitioner asserts for the first
time that he sought collateral relief within one year of his “discovery” of the alleged
constitutional claims, apparently arguing for application of subsection (D) on the ground that the
limitations period did not begin to run until he discovered the factual predicate of his claims. Yet
the record clearly refutes Petitioner’s claim. During his plea hearing, Petitioner was informed
that if he were sentenced to the penitentiary he would have to serve a three-year term of MSR.
See People v. Hernandez, No. 1-09-3191 (Ill. App. June 15, 2011). That is, he was told before

4

he pled guilty that any prison sentence would be followed by a term of MSR. This contradicts
Petitioner’s assertion that the factual basis for his claim was not discoverable through the
exercise of due diligence until some unknown point within a year before his collateral attack.
Furthermore, not only does the record contradict Petitioner’s claim of recent discovery of the
“factual predicate” of his claims, Petitioner provides no details whatsoever as to what he
discovered, when he discovered it, how he discovered it, or whether it could have been
discovered at an earlier time if he had exercised due diligence. Instead, Petitioner states that he
is entitled to a hearing to explore these issues. To the contrary, his claim of recent discovery is
flatly contradicted by the record. Since Petitioner provides no basis to start the limitations period
at any time after October 22, 2006, and the record indicates that he knew or should have known
of the MSR term at his plea hearing, the limitations period expired well before Petitioner began
to pursue any collateral attack in state court.
Petitioner also argues that the time between his guilty plea and the filing of his postconviction petition should be tolled because his state collateral attack was timely under state law.
He misunderstands the statute: while his state collateral attack was timely under state law, it did
not toll the federal limitations period for his subsequent federal habeas petition because it was
filed too late to do so. See Teas v. Endicott, 494 F.3d 580, 582-83 (7th Cir. 2007) (where time
under § 2244(d)(1)(A) has long expired before filing of state post-conviction petition, no
collateral review “was pending” in state court and tolling provision under § 2244(d)(2) does not
render petition timely). Petitioner does not dispute the filing date of his post-conviction petition,
nor does he allege that he filed any earlier collateral attack that would have tolled the limitations
period. Petitioner was not “attempting to exhaust his state court remedies” between October

5

2006 and August 2009; no collateral attack was pending, and that time was not tolled under §
2244(d)(2).
In regard to the Court’s docket, Petitioner also complains that Respondent’s motion to
dismiss was itself untimely. However, the Court’s order compelling a response “within twentyeight days of the entry of [this Court’s] order” was entered June 29, 2012; hence the response
was due July 27, 2012, and Respondent’s July 25, 2012 motion was timely. Although the docket
states that the order was “filed” on July 25, 2012, the docket entry reflects that the order was not
“entered” until July 29, 2012. While the Court appreciates Petitioner’s position on this point,
Respondent’s motion was timely. Petitioner also asserts that the motion was an “improper
answer,” but the Court gave respondent the option to “answer or otherwise respond” to the
petition.
Finally, Petitioner has not demonstrated that equitable tolling should excuse his untimely
filing.

In general, under the doctrine of equitable tolling, a court may toll the statute of

limitations to benefit an otherwise untimely litigant if the litigant can establish that (i) she had
been pursuing his rights diligently and (ii) some extraordinary circumstance prevented timely
action. Pace v. DeGuglielmo, 544 U.S. 408, 418 (2005). The Seventh Circuit has suggested that
equitable tolling might be applied to 28 U.S.C. §2244(d) “when extraordinary circumstances
outside of the petitioner’s control prevent timely filing of the habeas petition.” Lo v. Endicott,
506 F.3d 572, 576 (7th Cir. 2007). At the same time, the court of appeals has stressed that
“[e]quitable tolling is rarely granted” and recently observed that “we have yet to identify a
petitioner whose circumstances warrant it.” Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir.
2008). Plaintiff does not argue for equitable tolling, and the nothing in the record suggests that
Plaintiff pursued his rights diligently yet was thwarted by some “extraordinary circumstance”

6

that prevented him from complying with AEDPA’s limitations period. Pace, 544 U.S. at 418.
Instead, Petitioner has not provided any explanation for his three-year delay in seeking any
review in state court, a delay that does not bespeak diligence. See, e.g., Pace, 544 U.S. at 419
(finding lack of diligence for purposes of equitable tolling where petitioner “s[a]t on his rights”
for years before bringing claims in state court and then for months following conclusion of state
court review).
In short, the one year limitations period under the AEDPA expired before Petitioner filed
her state post-conviction petition, and Petitioner’s arguments that this case is an appropriate case
for invoking Section 2244(d)(1)(D) is unavailing as a matter of fact, law, or both.
III.

Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254

Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Accordingly, the Court must determine whether to grant
Petitioner a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
A habeas petitioner does not have an absolute right to appeal a district court’s denial of
his habeas petition; instead, he must first request a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 335 (2003); Sandoval v. United States, 574 F.3d 847, 852 (7th Cir.
2009). A habeas petitioner is entitled to a certificate of appealability only if he can make a
substantial showing of the denial of a constitutional right. Miller-El, 537 U.S. at 336; Evans v.
Circuit Court of Cook County, Ill., 569 F.3d 665, 667 (7th Cir. 2009). Under this standard,
Petitioner Hernandez must demonstrate that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at

7

336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). And in cases where a district court
denies a habeas claim on procedural grounds, the court should issue a certificate of appealability
only if the petitioner shows that (1) jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right, and (2) jurists of reason would find it
debatable whether the district court was correct in its procedural ruling. See Slack, 529 U.S. at
485.
The Court concludes that Petitioner has not made a substantial showing of the denial of a
constitutional right, nor is there any reason to conclude that reasonable jurists would differ on
whether his claims are time-barred under 28 U.S.C. § 2244(d)(1). Thus, the Court declines to
certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
IV.

Conclusion
For these reasons, the Court grants Respondent Marc Hodge’s motion to dismiss [8]

Petitioner Rafael Hernandez’s petition for habeas corpus as time-barred under 28 U.S.C. §
2244(d)(1) and denies as moot Petitioner’s informal request for an evidentiary hearing on the
claims in his petition. Finally, the Court declines to certify any issues for appeal under 28 U.S.C.
§ 2253(c)(2).

Dated: January 30, 2013

__________________________________
Robert M. Dow, Jr.
United States District Judge

8