Gonzalez v. Atchison et al
Filing
4
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 1/17/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES ex rel. GILBERTO
GONZALEZ #K-69916,
Petitioner,
v.
MICHAEL ATCHISON,
Respondent.
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No.
13 C 314
MEMORANDUM OPINION AND ORDER
Gilberto Gonzalez (“Gonzalez”) has filed a Petition for Writ
of Habeas Corpus (“Petition”)1 to challenge his conviction on a
first-degree murder charge on which he is now serving a 48-year
sentence.
This memorandum opinion and order is issued sua sponte
to address a threshold question posed by the Petition before any
consideration of the merits is in order.
With the acknowledged goal of curtailing the role of federal
courts under 28 U.S.C. §2254,2 which now codifies (but limits
substantially) the scope of what used to be called (with good
reason) the Great Writ of habeas corpus, in evaluating claimed
constitutional violations in connection with state court criminal
1
Although the original Petition was prepared on the
printed form of such habeas petitions made available by the
Clerk’s Office of this District Court, with appropriate
information provided by Gonzalez’ hand-printed insertions, the
Judge’s Copy delivered to this Court’s chambers was entirely
hand-printed, including the identical information (apparently
Gonzalez lacked access to duplicating facilities).
2
All further references to Title 28’s provisions will
simply take the form “Section--.”
convictions, Congress has enacted a set of standards that
includes a one-year statute of limitations (Section 2244(d)(1)),
measured from the latest of four specified dates.
What applies
in Gonzalez’ case is the first-listed of those dates (Section
2244(d)(1)(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.
Petition Pt. I ¶4(A)(2) identifies March 25, 2009 as the
date when Gonzalez exhausted his efforts to obtain direct review
of his conviction (that was the date on which the Illinois
Supreme Court denied leave to appeal from the Illinois Appellate
Court’s affirmance of that conviction).3
Although Petition Pt. I
¶5 reports that Gonzalez did not then seek a writ of certiorari
from the United States Supreme Court, controlling caselaw adds
the 90-day period within which such an application could have
been filed to the March 25, 2009 date.
That makes June 23, 2009
the date on which the one-year limitations clock began to tick.
It is at that point that the information provided by
Gonzalez’ Petition leaves an important gap.
3
Petition Pt. II
For purposes of this preliminary discussion, this opinion
will assume that no step of that direct appeal process involved
any delay that would run time off of the one-year limitations
clock. Because some additional information must be provided by
Gonzalez in any event, however, his supplemental submission
ordered in this opinion should also flesh out the timing of those
steps so that this Court can confirm the correctness of that
assumption (or learn of its incorrectness).
2
provides input as to Gonzalez’ state court post-conviction
proceedings, but ¶B of that Part speaks only of the Cook County
Circuit Court’s date of dismissal of Gonzalez’ post-conviction
petition--no information is provided as to the date on which he
filed that petition.
That latter date, rather than the dismissal
date, is made relevant by 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.
Petition Pt. II goes on to specify the dates on which the
Illinois Appellate Court affirmed the dismissal of his postconviction petition and on which the Illinois Supreme Court
denied leave to appeal from that affirmance.
That latter date of
September 26, 2012, which marked the end of the tolling period,
means that at least 2 months and 28 days elapsed from the end of
that tolling period until Gonzalez submitted the Petition for
consideration by this District Court.4
4
“At least” is used advisedly here, for the Petition bears
a January 15, 2013 stamp from the Clerk’s Office. This Court of
course gives Gonzalez the benefit of the “mailbox rule” in
accordance with Houston v. Lack, 487 U.S. 266 (1988), but there
is a full three week time gap between the December 24, 2012 date
that Gonzalez’ Certificate of Service states he placed the
Petition in the mailbox at Menard Correctional Center and the
January 15, 2013 date of the Clerk’s Office stamp. If the
calculation based on Gonzalez’ further submissions ordered by
this opinion results in a close call, that time gap would have to
be explored further.
3
In summary, Gonzalez must supplement the Petition promptly
with the following additional information:
1.
any delays in the course of the direct review of
Gonzalez’ conviction that did not conform to the statutory
time requirements at any of the successive levels of review;
2.
the date on which Gonzalez filed his post-
conviction petition in the Circuit Court of Cook County;
3.
any delays in the course of the successive levels
of Gonzalez’ post-conviction proceedings that did not
conform to the statutory time requirements at any of those
levels.
Gonzalez is ordered to file that supplemental information on or
before February 4, 2013 to enable this Court to determine the
timeliness vel non of the Petition--a determination that will
control the decision as to whether to go on to consider the
Petition’s substantive content.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
January 17, 2013
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