Gonzalez v. Atchison et al

Filing 31

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 6/3/2013. 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
#K69916,
Petitioner,
v.
RICK HARRINGTON, Warden,
Respondent.

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No.

13 C 314

MEMORANDUM OPINION AND ORDER
On May 9, 2013 this Court culminated its inquiry into the
question whether the Petition for Writ of Habeas Corpus
(“Petition”) filed by pro se plaintiff Gilberto Gonzalez
(“Gonzalez”) was timely under 28 U.S.C. §2244(d)(“Section
2244(d)”) by reconfirming (1) its negative answer to that
question and (2) Gonzalez’ right under Fed. R. Civ. P. (“Rule”)
59(e) to move to alter or amend this Court’s final judgment in
that respect on or before May 27.1

Gonzalez has timely filed

such a motion, captioned “Motion For Relief From Judgment on the
Dismissal of Petitioner’s Habeas Corpus Petition as Untimely
and/or Motion To Alter or Amend April 29, 2013 Order,”2 and this

1

See the May 9, 2013 memorandum opinion and order
(“Opinion IV”) and this Court’s opinions that had preceded it:
Opinion I dated January 17, 2013, Opinion II dated February 20
and Opinion III dated April 29.
2

Although that motion was not received in the Clerk’s
Office until May 29, both it and Gonzalez’ supporting affidavit
are dated May 23, so that the “mailbox rule” applicable to
prisoner filings (Houston v. Lack, 487 U.S. 266 (1988)) renders

memorandum opinion and order will deal with that motion.
As before, Gonzalez seeks to escape the impact of Section
2244(b)(1) by pointing to the action of his state law postconviction counsel, attorney Jed Stone, in assertedly
misinforming Gonzalez as to the filing of the federal habeas
petition that was concededly filed too late (see Opinion III).
As Gonzalez would have it, that entitles him to equitable tolling
even though he did not satisfy the statutory tolling provision of
Section 2244(d)(2).
But that provision reflects a lack of understanding of the
very cases on which Gonzalez seeks to hang his hat:

Holland v.

Florida, 130 S.Ct. 2549, 2559 (2010) and Martinez v. Ryan, 132
S.Ct. 1309, 1320 (2012).3

This opinion will first treat with the

rule pronounced by the Supreme Court in Coleman v. Thompson, 501
U.S. 722, 753-55 (1991) and then to go on to discuss Holland and
Martinez.
Here are excerpts from Coleman (citations omitted) that
provide the backdrop against which both Holland and Martinez must

the motion timely in terms of the May 27 deadline. Hence
Gonzalez’ statement as to jurisdiction, which labels the motion
as having been brought under Rule 60(b)(1) and (6) rather than
Rule 59(e), is inappropriate, and this opinion gives Gonzalez the
benefit of the less stringent standard for relief prescribed by
the latter Rule.
3

This should not be misunderstood as criticizing nonlawyer
Gonzalez for that lack of understanding, because the issue here
is particularly complex for a nonlawyer.
2

be read (the first of these is from 501 U.S. at 752-73, the
second is from id. at 753, the third is from id at 754, the
fourth is from id. at 755 and the fifth is from id. at 756-57.
Applying the Carrier rule as stated, this case is at an
end. There is no constitutional right to an attorney
in state post-conviction proceedings. Consequently, a
petitioner cannot claim constitutionally ineffective
assistance of counsel in such proceedings. Coleman
contends that it was his attorney's error that led to
the late filing of his state habeas appeal. This error
cannot be constitutionally ineffective; therefore
Coleman must “bear the risk of attorney error that
results in a procedural default.”
*

*

*

Attorney ignorance or inadvertence is not “cause”
because the attorney is the petitioner's agent when
acting, or failing to act, in furtherance of the
litigation, and the petitioner must “bear the risk of
attorney error.”
*

*

*

As between the State and the petitioner, it is the
petitioner who must bear the burden of a failure to
follow state procedural rules. In the absence of a
constitutional violation, the petitioner bears the risk
in federal habeas for all attorney errors made in the
course of the representation, as Carrier says
explicitly.
*

*

*

Among the claims Coleman brought in state habeas, and
then again in federal habeas, is ineffective assistance
of counsel during trial, sentencing, and appeal.
Coleman contends that, at least as to these claims,
attorney error in state habeas must constitute cause.
*

*

*

Given that a criminal defendant has no right to counsel
beyond his first appeal in pursuing state discretionary
or collateral review, it would defy logic for us to
3

hold that Coleman had a right to counsel to appeal a
state collateral determination of his claims of trial
error.
Because Coleman had no right to counsel to pursue his
appeal in state habeas, any attorney error that led to
the default of Coleman's claims in state court cannot
constitute cause to excuse the default in federal
habeas.
This opinion turns, then, to the refinement to that standard--the
opening of a narrow window of exception--that Holland and now
Martinez have opened.
In 2010 the Supreme Court had occasion in Holland to examine
the subject of equitable tolling of the one-year Section
2244(d)(1) statute of limitations.

It held that such tolling

could be allowed “in appropriate cases” (130 S.Ct. at 2560-62),
it reconfirmed that a federal habeas petitioner who failed to
comply with the timeliness requirement had to show “that some
extraordinary circumstance stood in his way and prevented timely
filing” (id. at 2562, internal quotation mark omitted) and it
then repeated that “the circumstances of a case must be
‘extraordinary’ before equitable tolling can be applied” (id. at
2564).
Both more recently and more directly on point, just last
year Martinez definitively explained the “narrow exception” to
the broader Coleman pronouncement.

Here is Martinez, 132 S.Ct.

at 1315:
The precise question here is whether ineffective
assistance in an initial-review collateral proceeding
4

on a claim of ineffective assistance at trial may
provide cause for a procedural default in a federal
habeas proceeding. To protect prisoners with a
potentially legitimate claim of ineffective assistance
of trial counsel, it is necessary to modify the
unqualified statement in Coleman that an attorney's
ignorance or inadvertence in a postconviction
proceeding does not qualify as cause to excuse a
procedural default. This opinion qualifies Coleman by
recognizing a narrow exception: Inadequate assistance
of counsel at initial-review collateral proceedings may
establish cause for a prisoner's procedural default of
a claim of ineffective assistance at trial.
That pronouncement is indeed on point, because it explains
why Gonzalez’ effort to bring the definitive caselaw to his aid
is unsuccessful.

Gonzalez’ problem is that his post-conviction

counsel in the state court system did not fail to raise Gonzalez’
claims of ineffective assistance on the part of his trial and
appellate counsel.

Exactly the contrary is true:

What Gonzalez

labels as Ground Four in his Petition--“Petitioner was denied the
effective assistance of trial and appellate counsel”--was
expressly raised in his state post-conviction petition.

Petition

Pt. IIC in this case lists as the issues raised in the state
petition:
(1)

ineffective assistance of trial counsel for

failing to interview witnesses and object to sleeping juror;
and
(2)

ineffectiveness of appellate counsel.

And although that state post-conviction petition was filed
belatedly, attorney Stone succeeded in getting it considered by

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the Cook County Circuit Court and then the Illinois Appellate
Court, with the former dismissing the petition and the latter
affirming the dismissal on the merits.
In sum, then, Gonzalez’ situation is totally outside of the
narrow window that the later caselaw has opened as an exception
to Coleman.

Hence the erroneous advice that Gonzalez ascribes to

his state post-conviction counsel on the issue of timeliness
comes directly under the Coleman rubric and can provide Gonzalez
with no relief here.
Accordingly this opinion reconfirms this Court’s earlier
rulings, and Gonzalez’ current motion is denied.

Lastly, this

Court also reconfirms its own earlier denial of a certificate of
appealability (“COA”) and once again apprises Gonzales of the
possible opportunity to raise the COA issue before the Court of
Appeals (although no ruling is either made or implied here on the
question of timeliness or untimeliness of such an effort).

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

June 3, 2013

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