Ames v. Lemke et al

Filing 16

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 10/21/2013. For the reasons stated in the memorandum, the Court denies petitioner's motion for appointment of counsel [dkt. no. 5] and grants respondent's motion to dismiss [dkt. no. 11]. The Court directs the Clerk to enter judgment dismissing the petition for habeas corpus. The Court also declines to issue a certificate of appealability, because the limitations issues addressed in this decision are not reasonably debatable. Mailed notice.(pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

United States of America ex rel.
THOMAS RUSSEL AMES,
Petitioner,
vs.
MICHAEL LEMKE,
Respondent.

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Case No. 13 C 2826

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Thomas Ames has petitioned for a writ of habeas corpus under 28 U.S.C. §
2254, challenging his conviction and life sentence for first degree murder. Respondent
Michael Lemke, the warden of the prison where Ames is incarcerated, has moved to
dismiss the petition on the ground that it is barred by the statute of limitations. For the
reasons stated below, the Court grants respondent's motion.
The Court notes that Ames has filed a motion for appointment of counsel. The
record reflects, however, that Ames was fully capable of addressing coherently the
statute of limitations issues presented by respondent's motion to dismiss. The Court
therefore denies Ames's motion for appointment of counsel.
Background
On June 25, 1993, Ames pled guilty to one count of first-degree murder in
Vermilion County Circuit Court, and on December 8, 1993 the court sentenced Ames to
a term of life without the possibility of parole. On November 17, 1995, the Illinois

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Appellate Court affirmed the trial court’s judgment, rejecting Ames's arguments that his
sentence was excessive considering his youth, that it was disproportionate to his codefendant’s sentence, and that it represented an abuse of judicial discretion. See
Resp.'s Ex. B. On January 31, 1996, the Illinois Supreme Court denied Ames's petition
for leave to appeal (PLA). See People v. Ames, 165 Ill. 2d 554, 662 N.E.2d 427 (1996).
Ames did not file a petition for writ of certiorari in the United States Supreme Court.
On September 18, 2000, Ames filed a pro se post-conviction petition, asserting
claims under Apprendi v. New Jersey, 530 U.S. 466 (2000), of “unconstitutional
sentence, sentencing factors, [and] sentencing statutes.” Pet. at 4. Ames's courtappointed counsel amended his post-conviction petition. The state moved to dismiss
the petition as untimely, and a judge of the Vermilion County Circuit Court granted the
motion on October 30, 2002. The Illinois Appellate Court reversed on November 1,
2005, because the record did not show that Ames's post-conviction counsel had
consulted with Ames in conformity with Illinois Supreme Court Rule 651(c).
Although the case then returned to the Vermilion County Circuit Court, nothing of
consequence happened until November 15, 2008, when Ames filed a pro se motion to
vacate his judgment.
On February 23, 2010, Ames's counsel filed an amended petition for postconviction relief. The Circuit Court granted the state’s motion to dismiss Ames's postconviction petition on various grounds. On appeal, appointed counsel moved to
withdraw pursuant to Pennsylvania v. Finely, 481 U.S. 551 (1987). On November 2,
2011, the Illinois Appellate Court granted the motion to withdraw and affirmed the
dismissal of Ames's petition. On March 28, 2012, the Illinois Supreme Court denied

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Ames's PLA. Ames did not file a petition for writ of certiorari in the United States
Supreme Court.
Ames mailed his petition for writ of habeas corpus on March 18, 2013. He
asserts claims of ineffective assistance of counsel and disproportionate sentence.
Respondent has moved to dismiss Ames's petition as time-barred.
Discussion
Under 28 U.S.C. § 2244(d)(1), a one-year limitation period applies to habeas
corpus petitions filed under section 2254. This period runs from the latest of several
dates:
(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;
(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). The limitation period is also subject to equitable tolling. See
Holland v. Florida, 130 S. Ct. 2549, 2554 (2010).
1.

When did the one-year limitation period begin to run?
The first question is when the one-year clock under section 2244(d)(1) started to

run. A state criminal judgment is considered final for purposes of § 2244(d)(1)(A) upon
the conclusion of direct review once direct appeal proceedings in state court and the
United States Supreme Court have been completed. Jimenez v. Quarterman, 555 U.S.

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113, 119 (2009). In Ames's case, that was on April 30, 1996, when the ninety-day
period for him to file a petition for certiorari expired. See, e.g., Anderson v. Litscher,
281 F.3d 672, 674-75 (7th Cir. 2002). This was just a few days after the one-year
limitation period for federal habeas corpus petitions took effect. Thus Ames's federal
habeas corpus petition was due on April 30, 1997, unless one of the other subparts of
section 2244(d)(1) applies.
Under section 2244(d)(1)(B), if a state-created impediment that violates the
Constitution or federal law prevented Ames from filing his federal habeas petition, then
the one-year clock did not start until the impediment was removed. Ames alleges a
state-created impediment, specifically, limited access to the prison law library. See
Pet'r's Resp. to Mot. to Dismiss at 5. Ames states that he has “put in a request to
attend the law library nearly every week for the last 19 months and [hasn't] been placed
on the list even once in that time period.” Id. at 6.
This argument misses the mark. What is significant for determining whether a
state-created impediment actually prevented Ames from filing his federal habeas
petition is his access to the prison law library during the period before his habeas
corpus petition was otherwise due, namely, April 30, 1997. Ames does not address that
period; he contends only that he could not get access to the law library from about
December 2011 through July 2013. Thus section 2244(d)(1)(B) does not entitle Ames
to a later start date for the one-year period of limitation.
The Court has also considered whether section 2244(d)(1)(C) entitles Ames to a
later start date for the one-year limitation period. Under that provision, the limitation
period runs from the date on which the constitutional right the petitioner asserts was first

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recognized by the U.S. Supreme Court, if that right was made retroactively applicable to
cases on collateral review.
In his state post-conviction petition, Ames argued that the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), gave him a newly recognized
and retroactively applicable constitutional right. Apprendi, however, was not made
retroactive for convictions that had already become final before the Supreme Court
decided the case. See Curtis v. United States, 294 F.3d 841, 844 (7th Cir. 2002). Thus
section 2244(d)(1)(C) does not assist Ames.
Finally, section 2244(d)(1)(D) does not apply, because Ames does not contend
that he was unable to discover the factual basis for his claims during the relevant
period.
Ames argues that his petition is timely because he filed it within one year of the
Illinois Supreme Court’s denial of his post-conviction PLA, but that is the wrong date.
Section 2244(d)(1)(A) focuses on the conclusion of direct review, not the conclusion of
post-conviction collateral proceedings.
In sum, the Court concludes that the one-year limitation period for Ames to file a
federal habeas corpus petition started to run on April 30, 1996 and ran out on April 30,
1997. Ames did not file his section 2254 petition in federal court until March 18, 2013.
See Houston v. Lack, 487 U.S. 266, 270 (1988) (petition is filed as of date it is given to
prison authorities for mailing to the district court). Thus his petition is untimely, unless
there is a basis for statutory or equitable tolling.
2.

Is there a basis for statutory or equitable tolling of the limitation period?
Under section 2244(d)(2), "[t]he time during which a properly filed application for

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State post-conviction or other collateral review with respect to the pertinent judgment" is
not counted against the one-year limitation period. Ames's post-conviction petition was
pending in the state courts for an unusually long period, from September 18, 2000
through March 28, 2012. But even if the post-conviction petition was "properly filed" as
section 2244(d)(2) defines that term, 1 it is irrelevant for statute of limitations purposes,
because the time for Ames to file a federal habeas corpus petition had already expired
before he filed the post-conviction petition. See De Jesus v. Acevedo, 567 F.3d 941,
943 (7th Cir. 2009).
The Court has also considered whether Ames is entitled to equitable tolling of the
limitation period. Section 2244(d) is subject to equitable tolling in appropriate cases.
Holland, 130 S. Ct. at 2554. Generally, if a litigant is seeking equitable tolling, he bears
the burden of establishing that he has been diligently pursuing his rights and that an
extraordinary circumstance stood in his way. Pace, 544 U.S. at 418. Though an
attorney’s unprofessional conduct can be so egregious that it amounts to an
extraordinary circumstance that warrants equitable tolling, a garden variety claim of
excusable attorney neglect or negligence does not rise to this level. Holland, 130 S. Ct.
at 2564.
Ames cannot satisfy the standard governing claims of equitable tolling. First, he
did not diligently pursue his rights during enough of the relevant period to prevent his

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In fact, Ames's post-conviction petition was not "properly filed" within the meaning of
section 2244(d)(2). The Supreme Court has ruled that if a state post-conviction petition
was untimely, then it is not considered properly filed under section 2244(d)(2) and does
not toll the federal clock. Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). Because the
state courts found Ames's post-conviction petition to be untimely as a matter of state
law, "that [is] the end of the matter for purposes of § 2244(d)(2)." Id. at 414 (internal
quotation marks omitted).
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petition from being time-barred. Ames would have to show reasonable diligence
pursuing his rights all the way from just before the one-year federal clock ran out on
April 30, 1997 until March 18, 2013, the date he mailed his federal habeas petition. He
cannot show reasonable diligence throughout this time. In particular, Ames does not
identify anything that he did to pursue his claims prior to September 18, 2000, when he
filed his state post-conviction petition. That makes it unnecessary to address the
remaining twelve and one-half years.
Second, Ames cannot show the required extraordinary circumstances. It is likely
that the reason Ames did not file his habeas corpus petition until 2013 is that, like many
inmates, he believed that the one-year clock did not start to run until after his postconviction petition was denied. In other words, Ames likely made a mistake of law. A
petitioner's mistake regarding the law, however, does not entitle him to equitable tolling.
Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013).
Finally, Ames appears to rely on Martinez v. Ryan, 132 S. Ct. 1309 (2012), and
Trevino v. Thaler, 133 S. Ct. 1911 (2013). These cases, however, concern how a
petitioner may excuse his procedural default of a claim that he asserts in a habeas
corpus petition, not how a petitioner may show an excuse for an untimely petition.
Conclusion
For the reasons stated above, the Court denies petitioner's motion for
appointment of counsel [dkt. no. 5] and grants respondent's motion to dismiss [dkt. no.
11]. The Court directs the Clerk to enter judgment dismissing the petition for habeas
corpus. The Court also declines to issue a certificate of appealability, because the

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limitations issues addressed in this decision are not reasonably debatable.

________________________________
MATTHEW F. KENNELLY
United States District Judge

Date: October 21, 2013

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