Johnson v. Lemke et al

Filing 18

MEMORANDUM Opinion and Order. The Court grants respondent's motion to dismiss Johnson's § 2254 petition as untimely 8 , dismisses the petition, and terminates this case. Civil case terminated. Signed by the Honorable Jorge L. Alonso on 1/26/2015. Notice mailed by judge's staff (ntf, )

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

UNITED STATES OF AMERICA
ex rel. EARL JOHNSON,
Petitioner,
v.
MICHAEL LEMKE, Warden,
Stateville Correctional Center,
Respondent.

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No. 13 C 5031
Judge Jorge Alonso

MEMORANDUM OPINION AND ORDER
Earl Johnson has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
(“section”) 2254 challenging his state criminal convictions for first degree murder. Respondent has
filed a motion to dismiss the petition as untimely. For the reasons set forth below, the Court grants
the motion, dismisses the petition, and terminates this case.

Procedural Background
On January 9, 2004, Johnson was convicted of two counts of first degree murder. (Pet. at
1.) He was sentenced to two, consecutive, twenty-two-year prison terms. (Id.)
He appealed his convictions, arguing that they should be reduced to reckless homicide, and
therefore his sentences should run concurrently. (See Gov’t Ex. B, People v. Johnson, No.
l-04-0127, at 1 (Ill. App. Ct. May 16, 2003).) On December 9, 2005, the appellate court affirmed
his convictions and sentences. (See id.)

Subsequently, Johnson filed a petition for leave to appeal to the Illinois Supreme Court,
which was denied on November 29, 2006. (See Gov’t Ex. C, People v. Johnson, No. 103388 (Ill.
Nov. 29, 2006).) Johnson did not seek a writ of certiorari from the Supreme Court. (See Pet’r’s
Resp. Mot. Dismiss at 1.)
Johnson filed a petition for post-conviction relief, which the trial court dismissed as
untimely. (See Gov’t Ex. D, People v. Johnson, No. 1-09-3218, at 1 (July 31, 2012).) He appealed
the dismissal, which was affirmed by the appellate court on July 31, 2012. (See id.)

Discussion
To be timely, a § 2554 petition must be filed, as relevant here, within one year of “the date
on which the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Because Johnson did not seek a writ of
certiorari from the Supreme Court, his conviction became final when the time for doing so expired,
i.e., February 27, 2007, ninety days after the state supreme court denied his petition for leave to
appeal. See S. Ct. R. 13 (“[A] petition for a writ of certiorari to review a judgment in any case, civil
or criminal, entered by a state court of last resort . . . is timely when it is filed with the Clerk of this
Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review
of a judgment of a lower state court that is subject to discretionary review by the state court of last
resort is timely when it is filed with the Clerk within 90 days after entry of the order denying
discretionary review.”); Smith v. Battaglia, 415 F.3d 649, 652 (7th Cir. 2005) (“Smith’s conviction
became final on January 2, 1996, which was the time when his opportunity to file a petition for
certiorari from the Illinois Supreme Court’s decision denying leave to appeal expired.”). Thus,

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absent tolling, the limitations period for Johnson’s petition expired on February 27, 2008, more than
five years before he filed this petition.
There are three potential avenues for tolling in a § 2254 habeas case: (1) statutory tolling;
(2) equitable tolling; and (3) actual innocence. Statutory tolling applies during “the time [in] which
a properly filed application for State post-conviction or other collateral review . . . is pending.” 28
U.S.C. § 2244(d)(2). However, an untimely post-conviction petition, like Johnson’s, is not
“properly filed.” Thus, it does not toll the limitations period. See Pace v. DiGuglielmo, 544 U.S.
408, 417 (2005) (“Because the state court rejected petitioner’s [post-conviction] petition as untimely,
it was not ‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).”).1
Equitable tolling comes into play when the petitioner proves “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S.
at 418. Because Johnson has demonstrated neither, equitable tolling does not apply.
That leaves actual innocence, which is the tolling doctrine Johnson invokes. Under that
doctrine, the limitations period is tolled if petitioner “‘persuades the district court that, in light of
. . . new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.’” McQuiggin v. Perkins, __U.S. __, 133 S. Ct. 1924, 1928 (2013) (quoting Schlup
v. Delo, 513 U.S. 298, 329 (1995)). A “‘credible’” claim of actual innocence, the Supreme Court
has said, “requires ‘new reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.’”
House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup, 513 U.S. at 324).

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This is true even when, as here, the state court both deems the petition untimely and
rejects it on the merits. See Pace, 544 U.S. at 414 (citing Casey v. Saffold, 536 U.S. 214, 225226).
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Johnson contends that he satisfies this standard because deposition testimony of the
detectives who witnessed his crimes casts doubt on whether he had the intent to kill the victims.
(See Pet’r’s Resp. Mot. Dismiss at 3-4.) Even if that is true, an issue the Court cannot decide
because Johnson did not submit the testimony, it would not save his petition. “‘Actual innocence’
means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998). Because Johnson’s purported new evidence would prove, at best, that he did not intend to
kill his victims, not that he did not, in fact, kill them, it would not be a basis for tolling the
limitations period for his § 2254 petition.

Conclusion
For the reasons set forth above, the Court grants respondent’s motion to dismiss Johnson’s
§ 2254 petition as untimely [8], dismisses the petition, and terminates this case.
SO ORDERED.

ENTERED: January 26, 2015

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HON. JORGE ALONSO
United States District Judge

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