Mosley v. Harrington

Filing 7

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 10/10/2013:(mb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
ANDRE MOSLEY #R67695,
)
)
Petitioner,
)
)
v.
)
)
WARDEN RICK HARRINGTON,
)
)
Respondent.
)

No.

13 C 7172

MEMORANDUM OPINION AND ORDER
On October 4, 2013 Andre Mosley (“Mosley”) filed a selfprepared a 28 U.S.C. §22541 Petition for Writ of Habeas Corpus
(“Petition”) to challenge his state court conviction in January
2008 on a charge of first degree murder on which he is now
serving a 57-year sentence.

This Court has just received the

Judge’s Copy of the Petition, and the preliminary review called
for by the Rules Governing Section 2254 Cases in the United
States District Courts (“Section 2254 Rules”) has revealed a
potentially fatal flaw in Mosley’s submission.
That is not said as to the substance of Mosley’s purported
claims, because the Petition does not reveal enough to permit an
effective evaluation of their substantive sufficiency or lack of
it.

To be sure, each of Mosley’s asserted nine grounds for

relief concludes its summary caption with the assertion “which
violates...” followed by a reference to the United States

1

All further references to Title 28’s provisions will
simply take the form “Section--.”

Constitution’s Fourteenth (and in three instances Sixth)
Amendment.

And it is true that the recital of those stated

grounds is followed by this assertion:
All grounds raised in this Petition has [sic] been
presented to the highest court having jurisdiction.
But what is not shown in the Petition is whether the
presentations made to the state courts in Mosley’s direct appeal
or in his later state court post-conviction petition were framed
in federal constitutional terms, as must be the case to support
federal habeas relief.

For aught that appears, both the direct

appeal and the state post-conviction petition may have framed
matters in state law terms, so that the invocation of federal
constitutional provisions in the current Petition would not
suffice to get Mosley through the federal courthouse door.2
What is abundantly clear in all events is that any
resolution of the just-discussed issue cannot take place on the
basis of the scant record provided by the Petition.

Instead this

Court would be required to order an answer and the other contents
called for by Section 2254 Rule 5.

Fortunately, any such

procedure, along with the extensive time and effort that would
necessarily be involved in the preparation and submission of a

2

Indeed, this Court’s review of many federal habeas
petitions by state prisoners over the years has all too
frequently revealed situations in which state court criminal
defense lawyers have focused solely on claimed violations in
terms of state law without looking ahead to the possibility of a
later resort to Section 2254 proceedings.
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full-blown record, can readily be avoided by limiting the current
focus in this opinion to the indisputable untimeliness of
Mosley’s Petition under Section 2244(d)(1)’s one-year limitation
period.

What follows, then, is an analysis of that deficiency as

confirmed by the Petition itself.
To begin with, Section 2244(d)(1)(A) starts the limitations
clock ticking on “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for
seeking such review.”

According to Petition pt. I ¶4.A(2),

Mosley’s direct review effort in the state court system ended
when the Illinois Supreme Court denied his petition for leave to
appeal from the Illinois Appellate Court’s affirmance of his
conviction--and that denial took place on September 30, 2009.
Although no petition to the United States Supreme Court for a
writ of certiorari was then filed, the Supreme Court’s teaching
is that the 90 days allowable for such a petition must be added
to that last date in determining “the expiration of the time for
seeking such [direct] review,” so that the commencement date of
the one-year limitation period was December 29, 2009.
What comes into play next in the analysis of timeliness or
untimeliness is the tolling provision of Section 2244(d)(2),
which excludes 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.”

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According to Petition pt. II ¶1.B, Mosley’s state post-conviction
petition was filed in the Circuit Court of Cook County on March
23, 2010, so that 2 months and 24 days had already run on the
one-year limitations clock before the tolling provision kicked
in.

And later paragraphs in that same pt. II ¶1 of the Petition

disclose that the final curtain on the state post-conviction
proceedings came down when the Illinois Supreme Court denied
Mosley’s petition for leave to appeal on September 26, 2012.
Although the Petition bears a filing stamp dated October 4
of this year, Mosley’s entitlement to the “mailbox rule” (see
Houston v. Lack, 487 U.S. 266 (1988)) gives him the benefit of
the September 24, 2013 date reflected in his Notice of Filing and
Certificate of Service attached to the Petition.

But what Mosley

has obviously failed to recognize is that even though that date
alone would barely bring him in under the wire when compared with
the September 26, 2012 denial of leave to appeal, the combination
of that period of a calendar year minus two days, when
necessarily coupled with the more than two-month time frame that
had already elapsed on the clock before Mosley began his state
post-conviction efforts has brought Mosley well past the date
when the one-year limitations clock ran out.
What has been said to this point is so obvious that it would
seem a sua sponte dismissal of the Petition as untimely could
conceivably be ordered at this point.

4

But because it is

theoretically possible that the Illinois Attorney General’s
Office could waive a limitations defense for some reason, this
Court will simply direct that office to file a response on or
before October 28, 2013 stating whether or not it is moving to
dismiss the Petition on limitations grounds.3
Before this opinion concludes, a few words should be said
about two additional documents filed by Mosley, but copies of
which--for some unexplained reason--were not delivered to this
Court’s chambers.

One of those documents is an In Forma Pauperis

Application (“Application”), which reflects the all-too-common
misunderstanding that a prisoner such as Mosley filing a Section
2254 petition must seek relief from payment of a $350 filing fee.
That isn’t so, because a federal habeas petition carries only a
modest $5 filing fee.

Accordingly the Application is denied, and

Mosley is ordered to pay the $5 fee on or before October 28,
2013.

Mosley’s other preliminary request, in which he seeks

representation by a pro bono counsel, is denied as moot based on
the preceding analysis (subject to possible reconsideration if

3

This Court of course recognizes the problems attendant on
the assignment of new matters within offices such as that of the
Attorney General. This opinion’s designation of a response date
should not be misunderstood as setting a time limit, but has
rather been included to encourage prompt attention to what should
be a comparatively simple decision. This Court’s prior
experience with that office has been that its responses to
federal habeas petitions regularly begin with the type of timing
analysis that has been essayed here, because untimeliness is a
comparatively simple threshold issue in contrast to the work of
assembling a full record as required for full substantive review.
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the action were to survive).

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

October 10, 2013

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