Gonzalez v. Atchison et al

Filing 14

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 2/20/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
ex. rel. GILBERTO GONZALEZ,
Petitioner,
v.
MICHAEL ATCHISON, Warden,
Respondent.

)
)
)
)
)
)
)
)
)
)

No.

13 C 314

MEMORANDUM OPINION AND ORDER
On January 15, 2013 the Clerk’s Office received a selfprepared Petition for Writ of Habeas Corpus (“Petition”) in which
Gilberto Gonzalez (“Gonzalez”) challenged his conviction on a
first-degree murder charge on which he is serving a 48-year
sentence.1

Because the incompleteness of the information

contained in the Petition about Gonzalez’ several efforts to
obtain judicial relief left the timeliness of the Petition
unanswered, this Court immediately issued a January 17, 2013
memorandum opinion and order (“Opinion”) requesting supplemental
information needed for determination of the timeliness issue.
On February 4 this Court received a motion from Gonzalez
that did not speak to the matters raised in the Opinion, but
instead asked this Court to enter a stay-and-abey order.

1

Again

Each of this Court’s earlier written opinions in this
case has treated Gonzalez’ filing date as December 24, 2012
rather than the mid-January date of the Petition’s receipt, thus
giving effect to the “mailbox rule” prescribed by Houston v.
Lack, 487 U.S. 266 (1988). This opinion will do the same.

this Court acted swiftly--on February 6 it issued a memorandum
order entering and continuing that motion and granting Gonzalez
additional time to respond to the directive in the Opinion.

But

on the very next day (February 7) a bulky submission arrived in
this Court’s chambers that contained the information this Court
had originally requested.2

With Gonzalez now having provided a

detailed sequence of his post-conviction efforts, this opinion
will review the bidding in terms of the one-year statute of
limitations prescribed by 28 U.S.C. §2244(d)(“Section 2244(d)”).
As for Gonzalez’ direct review of his conviction in the
state court system, Opinion at 2 has correctly identified
March 25, 2009 as the date on which the Illinois Supreme Court
denied leave to appeal from the Illinois Appellate Court’s
affirmance of that conviction.

Opinion at 2 then went on to

state (also correctly) that even though Gonzalez did not then
seek a writ of certiorari from the United States Supreme Court,
the controlling caselaw tacked on the 90-day period allowed for
doing so.

Hence the limitations clock began to tick on June 23,

2009 in those terms.
But Gonzalez’ supplemental submission provides an added
wrinkle:

His appellate counsel failed to advise him of the

Illinois Supreme Court’s March 25 denial, so it was not until

2

That filing and this Court’s February 6 follow-up request
had obviously crossed in the mails.
2

Gonzalez later received word from the clerk of that court that
his pro se effort to add something to the appeal would be turned
down because of untimeliness that he first learned that leave to
appeal had been denied.

That could perhaps defer the

commencement of the limitations clock until about November 1,
2009, when Gonzalez first got the word.3
So for the first step of the limitations calculation, the
amount of time that elapsed on the one-year limitations clock
before Gonzalez made any effort toward launching a state postconviction challenge, it will be remembered that Section
2244(d)(1)(A) speaks of the starting date in these terms:
the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review.
Literal application of that language would treat 5 months and 15
days (from June 23 to December 8, 2009, the latter date being the
date on which Gonzalez filed a motion in the Circuit Court of
Cook County asking leave to file a late post-conviction petition
in the state court system) as having run on the clock.

3

But on

This Court employs the “could perhaps” locution here
because what this opinion seeks to do is simply to identify, but
not attempt to resolve, various of the issues bearing on the
timeliness or untimeliness of the Petition. Hence this Court has
not researched the question whether prevailing caselaw calls for
a strict reading of AEDPA’s time constraints (thus mandating the
use of the June 23 date) or, on the other hand, allows some
equitable bending of the rules to bring the November 1 date into
play. Depending on some of the other calculations addressed in
this opinion, that issue may or may not ultimately have to be
explored.
3

the other hand, if some equitable refinement were appropriate,
the elapsed time could be only 1 month and 7 days (from about
November 1 to December 8, 2009).
At the other end of the line the calculation involves no
ambiguity.

As Opinion at 2 states, on September 26, 2012 the

Illinois Supreme Court denied leave to appeal from the Appellate
Court’s affirmance of the dismissal of Gonzalez’ post-conviction
petition, so that another 2 months and 28 days elapsed from that
date until the December 24, 2012 date that is being treated as
his filing date of the federal Petition now before this Court.
To summarize the just-completed discussion, the use of the
June 23, 2009 date called for by a literal reading of Section
2244(d)(1)(A) would mean that the combined time that ran off the
one-year clock from the two elements was 8 months and 13 days (5
months and 15 days plus 2 months and 28 days), while using
November 1, 2009 would instead mean that the combined runoff was
just 4 months and 5 days (1 month and 7 days plus 2 months and 28
days).

And what that then means is that the Petition would be

barred by Section 2244(d)(1)’s one-year limitations provision
(a) if another 3 months and 18 days are not tolled under Section
2244(d)(2) if the one-year provision is applied as it reads
literally or (b) if another 7 months and 26 days are not tolled
if equitable considerations can relax the literal reading of the
statute.

4

It is the remaining centerpiece of the puzzle that poses a
question that this Court has not seen discussed in the course of
a threshold look at the reported caselaw on the subject.

Here is

the tolling provision of Section 2244(d)(2):
The time during which a properly filed application for
State post-conviction 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.
And here is our Court of Appeals’ teaching on that score in
Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir. 2000)(most
citations omitted):
We held in Freeman v. Page, 208 F.3d 572 (7th Cir.
2000), that whether a petition is “properly filed”
depends on state law, so that if a state court
accepts and entertains it on the merits it has been
“properly filed” but that if the state court rejects
it as procedurally irregular it has not been
“properly filed.” A corollary, recognized in
Jefferson v. Welborn, 222 F.3d 286 (7th Cir. 2000),
is that a petition that fails to comply with state
procedural requirements is still “properly filed” if
the state accepts it and issues a decision on the
merits. Jefferson applies to §2244(d) the approach
that Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038,
103 L.Ed.2d 308 (1989), announces for determining
when a procedural default under state law forecloses
federal relief on collateral attack: if the state
enforces its procedural rules and deems the claim
forfeited, then federal review is barred; if the
state excuses a default, then federal review is
proper.
Both the Circuit Court of Cook County and the Illinois
Appellate Court ultimately dealt with Gonzalez’ state postconviction petition on the merits.

For that reason the relation-

back approach taught in Fernandez and other cases might perhaps
5

be taken to suggest that Gonzalez’ November 28, 2009 transmittal
to the Circuit Court of a request for leave to file a late state
post-conviction petition somehow rendered the later-tendered
petition “properly filed,” so that the petition was “pending”
before the Illinois courts until the Illinois Supreme Court’s
September 26, 2012 denial of leave to appeal.
But in this instance there is something deeply troubling
about any such analysis:

Unlike all of the reported cases in

which the petitioner actually tendered a request for late filing
together with the petition itself, in this instance the request
for permission to file later was the only thing that Gonzalez
submitted--it was a lengthy November 9, 2009 motion (stamped as
having been received by the Clerk of the Circuit Court of Cook
County on December 8, 2009) that dwelt at great length on the
asserted reason for Gonzalez’ tardy request--that is, the failure
of his appellate counsel on direct review to have apprised him of
the Illinois Supreme Court’s denial of leave to appeal on direct
review, causing Gonzalez’ belated discovery of that denial.
Understandably, no response to that request was forthcoming
from the Circuit Court.

After all, Gonzalez had not tendered an

actual post-conviction petition on which that court could make a
decision on whether or not to exercise its discretion in favor of
granting leave for a belated filing.

And it was not until more

than ten months later--on October 10, 2010--that the lawyer whom

6

Gonzalez’ family had retained for that purpose actually submitted
a post-conviction petition.
It puts a serious strain on the English language to say that
an unprepared and hence unfiled petition for collateral review
can be labeled as “pending” for Section 2244(d)(2) purposes.

In

that regard Gonzalez’ situation would appear to come much closer
to that presented in Griffith v. Rednour, 614 F.3d 328 (7th Cir.
2010), in which a late-tendered motion to accept a petition for
leave to appeal instanter--a motion that the Illinois Supreme
Court granted, then denied the petition on the merits--was held
to flunk the Section 2244(d)(2) tolling provision.
This Court is of course aware that the extended delay in the
actual preparation and submission of the state post-conviction
petition can be ascribed to the lawyer whom Gonzalez’ family
retained and who was given an initial payment of $5,000 (on
account of a much higher bill for his services)4--Gonzalez’ Supp.
¶14 states that the lawyer “had full knowledge” of Gonzalez’
motion and “assured petitioner that the timeliness would not be a
problem,” an assurance that the lawyer repeated during the
ensuing months (id. ¶15).

As this Court sees it, that was bad

4

No conceivable justification appears to exist for such an
extended delay in filing the state post-conviction petition.
Retained counsel is a highly experienced lawyer in the areas of
criminal law and civil rights, subject to none of the constraints
that would have been faced by Gonzalez if he had tried to pursue
post-conviction relief on his own.
7

advice, but in constitutional terms it cannot be the predicate
for a claim of inadequate representation by counsel because there
is no constitutional right to counsel who is retained to file
post-conviction collateral attacks.

If what has been said here

indicates malpractice on counsel’s part, that cannot serve as an
underpinning for habeas relief.
To sum up in terms of the Section 2244(d)(2) tolling
provision, its reference to “a properly filed application for
State post-conviction or other collateral review” that must be
“pending” was not intended to be, and is not, satisfied by a
simple request for leave to file such an application, rather than
a filing of the application itself.

But the convoluted analysis

in this opinion to this point makes it clear that some further
work needs to be done to see whether Gonzalez is knocked out of
the box because his federal Petition is barred on limitations
grounds.

Because limitations is an affirmative defense rather

than a jurisdictional matter, the Illinois Attorney General’s
office is ordered on or before March 25, 2013 to submit a
response on the issues that have been discussed here and to
advise whether it wishes to assert or to waive a statute of
limitations defense.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

February 20, 2013

8