Gray v. Dorethy et al
Filing
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MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 9/26/2017: For the foregoing reasons, the Court grants Dorethy's motion to dismiss Gray's petition for habeas corpus as time-barred [dkt. no. 22] and therefore dismisses the petition [dkt. no. 1]. The Court declines to issue a certificate of appealability. The Clerk is directed to enter judgment dismissing the petition for habeas corpus. Mailed notice. (pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DOIAKAH GRAY (# K-70373),
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Petitioner,
vs.
STEPHANIE DORETHY, Warden,
Hill Correctional Center,
Respondent.
Case No. 17 C 258
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Doiakah Gray, who is serving an eighty-year prison term after an Illinois jury
convicted him of a murder he committed as a teenager, has petitioned the Court for a
writ of habeas corpus. 28 U.S.C. § 2254. He alleges that his sentence violates Miller v.
Alabama, 567 U.S. 460 (2012), as the sentencing judge failed to adequately consider
his age as a mitigating factor. Stephanie Dorethy, the warden of the prison where Gray
is incarcerated, has moved to dismiss his petition on the ground that it is barred under
the statute of limitations imposed by the Anti-Terrorism and Effective Death Penalty Act
(AEDPA). 28 U.S.C. § 2244(d)(1).
Background
Gray, while seventeen years old, killed Don Rietveld on the night of December 2,
1994. A Cook County jury convicted Gray of murder, and a judge sentenced him to
eighty years in prison in December 1998. He appealed, alleging several errors by the
trial court, but the state appellate court affirmed his conviction. He did not file a petition
for leave to appeal to the Illinois Supreme Court.
On June 24, 2002, Gray filed a post-conviction petition in which he alleged
ineffective assistance of counsel and that his sentence was unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466 (2000). A state trial judge denied his petition.
The Illinois appellate court affirmed the denial on February 17, 2006, and the Illinois
Supreme Court denied his petition for leave to appeal on September 27, 2006. He then
filed a petition for habeas corpus under 28 U.S.C. § 2254, which this Court denied.
United States ex rel. Gray v. McCann, No. 06 C 6058, 2007 WL 2915631 (N.D. Ill. Oct.
3, 2007). A second post-conviction petition, in which Gray raised new ineffective
assistance of counsel arguments, was also denied by the state courts.
On June 25, 2012, the Supreme Court recognized a new constitutional right:
mandatory life sentences without possibility of parole for juvenile offenders violate the
Eighth Amendment. Miller, 567 U.S. at 465. Several years later, in Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), the Supreme Court ruled that Miller applied
retroactively.
On September 4, 2013—a little over fourteen months after the Supreme Court
decided Miller—Gray filed a petition in Illinois state court for leave to file another postconviction petition to challenge his sentence. A state trial judge denied his request, and
the state appellate court affirmed. The Illinois Supreme Court denied Gray's petition for
leave to appeal on November 23, 2016 and denied his motion for reconsideration on
January 27, 2017.
Gray applied to the Seventh Circuit on December 23, 2016 for leave to file a
second habeas corpus petition. The court granted his request on January 12, 2017.
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Gray v. Dorethy, No. 16-4236 (7th Cir. 2017) (order authorizing the district court to
entertain a second petition for collateral review). The present petition followed.
Discussion
Gray seeks a writ of habeas corpus based on what he alleges to be an
unconstitutional sentence under Miller. Dorethy argues Gray filed the present petition
long after the deadline for his habeas corpus petition had passed. 28 U.S.C. §
2244(d)(1). Gray contends his petition is timely. He also argues that, if the petition is
time-barred, the "actual innocence" exception to procedural default excuses his
untimely petition, because he is innocent of his sentence, though not of the underlying
conviction.
The Court first reviews whether Gray's petition is time-barred. It next reviews
whether the actual innocence exception is available to Gray to excuse an untimely
petition. Finally, the Court considers whether to issue a certificate of appealability.
I.
Section 2244(d)(1)
A person filing a habeas corpus petition under section 2254 must meet the time
limitations imposed by section 2244(d)(1). The statute imposes a one-year limit on the
petitioner, which is measured from the latest of four events described in the statute.
Dorethy argues that Gray's petition is untimely if one considers either of the two triggers
in section 2244(d)(1) that are relevant to his petition. Gray contends that his petition
may be found timely under the more recent of the two events.
The first of the events in section 2244(d)(1) relevant in this case is "the date on
which judgment became final by the conclusion of direct review or the expiration of time
for seeking such review." 28 U.S.C. § 2244(d)(1)(A). For Gray, direct review concluded
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on January 15, 2002, the last day that Gray could have filed a petition for leave to
appeal to the Illinois Supreme Court. He did not file such a petition, and thus the
limitation period began to run the next day. The clock stopped 159 days later, on June
24, 2002, the date Gray filed his first post-conviction petition, as the statute stops the
limitation period while an individual litigates a properly-filed post-conviction petition. Id.
§ 2244(d)(2). On September 28, 2006, the day after Gray exhausted appellate review
of his unsuccessful petition, the clock, which had 206 days remaining, began to run
again. On April 21, 2007, 206 days later, the limitation period ran out. Gray does not
contest this calculation. Thus if the one-year limitation period is measured from the end
of direct review under section 2244(d)(1)(A), Gray's petition is untimely.
The second of the events in section 2244(d)(1) relevant to this case is "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." Id. § 2244(d)(1)(C). Although Dorethy argues
this event is inapplicable to Gray's petition because Miller does not apply to the facts of
his case, the Court may assume it does without deciding the applicability of Miller, as
Gray's petition is time-barred under this provision as well.
The primary dispute is over which date starts the clock if section 2244(d)(1)(C)
applies. Dorethy argues that it is June 25, 2012, the date that Miller was decided. Gray
argues it is January 25, 2016, the date that Montgomery made Miller retroactively
applicable. Montgomery, 136 S. Ct. at 732.
In Dodd v. United States, 545 U.S. 353 (2005), the Supreme Court held that the
statute of limitations begins to run on the date that the Court announces a new right, not
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the date that the Supreme Court makes the right retroactive. Id. at 357. Though Dodd
dealt with a § 2255 petitioner, the Seventh Circuit extended Dodd to § 2254 petitioners
like Gray, whose claim arises from a state-court judgment. Johnson v. Robert, 431 F.3d
992, 992 (7th Cir. 2005). AEDPA itself instructs that the relevant date is when "the
constitutional right asserted was initially recognized by the Supreme Court . . . ." 28
U.S.C. § 2244(d)(1)(C) (emphasis added). Thus it is Miller, not Montgomery, that
started the one-year clock on Gray's petition. Miller was decided on June 25, 2012, and
therefore the time for Gray to file a federal habeas corpus petition ran out on June 25,
2013. Gray's last state post-conviction petition was filed a little over two months after
that, on September 4, 2013. In other words, the one-year federal limitation period had
already run out by the time Gray first asserted his Miller-based claim in state court.
Gray argues that enforcing the one-year limitation period is unfairly burdensome,
because it would have taken more than a year to exhaust his state remedies, as
required to bring a habeas corpus petition. Pet.'s Resp. at 18 ("It is difficult for this
petitioner to imagine any legal process in the State of Illinois that would allow a state
prisoner to present his constitution violation(s) to the circuit court, appellate court, and
Illinois Supreme [sic] within one year." (emphasis omitted)). That reflects a
misunderstanding of how the habeas corpus statute of limitations works. Under 28
U.S.C. § 2244(d)(2), the one-year period is tolled "during which a properly filed
application for State post-conviction or other review with respect to the pertinent . . .
claim is pending." Thus although AEDPA imposes a statute of limitations, compliance is
not impossible. If Gray had filed his state post-conviction petition within one year after
the Supreme Court's decision in Miller, that would have stopped the clock, and once the
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state courts had completed their review, he still would have had time to file a federal
habeas corpus petition. Instead, however, Gray waited for well over a year after Miller
to file a state post-conviction petition.
For the foregoing reasons, the Court concludes that Gray's petition is timebarred, irrespective of whether the calculation is based upon the date that direct review
terminated or the date that the Supreme Court recognized new rights in Miller. Nor can
Gray use his petition to challenge his sentence on the basis of Montgomery alone.
Pet.'s Resp. at 25-29. Gray may only bring a viable petition under section 2244(d)(1)(C)
if he can present a newly recognized constitutional right. Miller, not Montgomery,
announced a new right. Montgomery, 136 S. Ct. at 736. Montgomery is insufficient on
its own to propel Gray's petition through section 2244(d)(1)(C).
II.
Actual innocence
Gray next argues that he may escape the time limitation altogether. His
argument is that he is actually innocent of his sentence, though not the crime of which
he was convicted, and that petitioners who are actually innocent may escape procedural
barriers. In McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), the Supreme Court held that
"a credible showing of actual innocence may allow a prisoner to pursue his
constitutional claims . . . notwithstanding the existence of a procedural bar to relief." Id.
at 1931. Although McQuiggin does permit some procedurally barred petitions to
proceed, this Court finds that Gray's is not one of them, for two reasons.
First, though the actual innocence exception applies to petitioners facing the
death penalty, it generally does not apply to non-capital sentences. Gray's brief
emphasizes Mills v. Jordan, 979 F.2d 1273 (7th Cir. 1992), in which the Seventh Circuit
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extended the exception to non-capital sentences. Id. at 1278. Mills, however, is no
longer good precedent, as it was decided before the passage of AEDPA. The Seventh
Circuit subsequently recognized that AEDPA abrogated Mills by imposing strict statutory
limits on habeas corpus petitions. Hope v. United States, 108 F.3d 119, 120 (7th Cir.
1997).
Second, even if the Court found that the actual innocence exception applies to
Gray's non-capital sentence, Gray still would have to persuade the Court that the
judge's failure to consider his age at sentencing renders him actually innocent.
Typically, a petitioner challenging a non-capital sentence who seeks to use the actual
innocence exception must demonstrate that he is innocent of a factual matter upon
which the sentence was based. See, e.g., United States v. Pettiford, 612 F.3d 270, 284
(4th Cir. 2010) (finding that petitioner was not actually innocent of his non-capital
sentence enhancement simply because the underlying prior convictions had been
vacated, as "actual innocence does not extend to non-factual challenges"). Gray does
not suggest that he is actually innocent of the facts supporting his conviction. Instead,
he argues he is actually innocent of his sentence because the sentencing judge failed to
consider his age in spite of Miller. Applying the exception in Gray's case would be
inconsistent with the other cases in which the exception was applied to non-capital
sentences and with Supreme Court's admonition that the exception is a narrow one.
McQuiggin, 133 S. Ct. at 1928 ("We caution . . . that tenable actual-innocence gateway
pleas are rare.").
III.
Certificate of appealability
A district court that rules against a habeas corpus petitioner must also decide
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whether to issue a certificate of appealability (COA). For a petitioner whose claims are
denied on procedural grounds, "a COA should issue when the prisoner shows . . . that
jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473,
484 (2000).
The Court determination that Gray's petition is time-barred and cannot be
excused through the actual innocence exception is not fairly debatable. The Court
therefore declines to issue a certificate of appealability.
Conclusion
For the foregoing reasons, the Court grants Dorethy's motion to dismiss Gray's
petition for habeas corpus as time-barred [dkt. no. 22] and therefore dismisses the
petition [dkt. no. 1]. The Court declines to issue a certificate of appealability. The Clerk
is directed to enter judgment dismissing the petition for habeas corpus.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: September 26, 2017
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