Conway v. Department of Corrections

Filing 26

ORDER DISMISSING CASE: The Court GRANTS respondent's 24 MOTION to Dismiss and DENIES and DISMISSES petitioner's 16 amended § 2254 habeas petition with prejudice. The Court further DENIES petitioner a Certificate of Appealability. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 12/8/2017. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BILL CONWAY,

Petitioner,

vs.

Civil No. 16-cv-00338-DRH

KAREN JAIMET, WARDEN,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
On March 28, 2016, Bill Conway (Petitioner) filed a petition under 28
U.S.C. § 2254 in this Court, conceding the filing was untimely. (Doc. 1). The
Court dismissed it without prejudice for failure to name the proper respondent
and appointed the Federal Public Defender to represent Petitioner.

(Doc. 4).

Petitioner timely filed an Amended Petition, asserting (1) his trial counsel was
ineffective for failing to investigate his mental condition and (2) his guilty plea was
not knowing or voluntary.

(Doc. 16).

Respondent filed a Motion to Dismiss

Petitioner’s § 2254 as untimely, (Doc. 24), and Petitioner responded, arguing he is
entitled to equitable tolling, (Doc. 25). For the following reasons, Respondent’s
Motion to Dismiss is granted.
Relevant Facts and Procedural History
In July 2004, Petitioner was indicted in the Circuit Court of Cook County,
Illinois on two counts of solicitation of murder, two counts of solicitation of
murder for hire, and one count of attempted first-degree murder. In November
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2004, a second indictment charged Petitioner with three counts of solicitation of
murder, three counts of solicitation of murder for hire, and three counts of
attempted first-degree murder. (Doc. 16, p. 1).
After holding two competency hearings, the court found Petitioner fit to
stand trial. On May 8, 2007, Petitioner entered into a negotiated plea of guilty and
was convicted of three counts of solicitation of murder for hire and one count of
attempted first-degree murder. The remaining counts were dismissed. Petitioner
received twenty-year sentences for each solicitation count, to run concurrently,
and a ten-year sentence for the attempted murder count, to run consecutive to the
solicitation sentences. (Doc. 16, p. 2).
Petitioner did not file a direct appeal, but filed a post-conviction petition
under Illinois’ Post Conviction Hearing Act, 725 ILCS 5/122-2 (West 2008), on
May 21, 2009.

The Illinois State Court dismissed the petition, and Petitioner

appealed to the Illinois Appellate Court, which affirmed the dismissal. Petitioner
did not appeal to the Supreme Court of Illinois. Petitioner also filed unsuccessful
post-conviction motions in 2014, including a Petition for Relief from a Void
Judgment and a House Bill Sentence Reduction Motion.

(Doc. 16, pp. 2-5).

Petitioner filed his § 2254 Petition pro se in March 2016, (Doc. 1), and filed the
instant Amended Petition in July 2017, (Doc. 16).
Timeliness of Petition
28 U.S.C. § 2254 permits persons in custody pursuant to a state court
judgment to bring a petition for a writ of habeas corpus “on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). A petitioner must file a § 2254 within one year from the
latest of –
(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.
Respondent asserts that (A) is the only applicable subsection to Petitioner’s
claim. Petitioner entered his guilty plea and was sentenced on May 8, 2007, and
had thirty days to file a direct appeal.

IL. SUP. CT. R. 604(d).

His conviction

became final on June 7, 2007, which is the last date he could have appealed his
sentence or moved to withdraw his guilty plea. Gonzalez v. Thaler, 565 U.S.
134, 150 (2012) (A judgment becomes final for purposes of § 2244 at the
expiration of the time for seeking direct review in state court.). Therefore, the
limitations period for filing a § 2254 Petition expired one year later on June 7,
2008.
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Petitioner suggests, on the other hand, that (D) may also be applicable,
(Doc. 16, p. 30), but admits the argument “is not central to or necessary for
Petitioner’s assertion of cause or equitable tolling,” He admits that the petition
was late even if (D) applied.

(Doc. 25, p. 4).

Thus, the Court will adopt the

limitations period Respondent sets forth.
Petitioner ultimately concedes his § 2254 is untimely, (Doc. 16, pp. 14, 30),
but asserts he is entitled to equitable tolling because his mental limitations
prevented him from understanding and acting upon his legal rights.
Petitioner’s Mental Health Records
Petitioner attests he is illiterate, he could not afford to pay anyone to assist
in filing his claim, the prison library was not helpful, and his medications for
mental and emotional problems hindered his ability to timely file. (Doc. 16, Ex.
6).

Petitioner’s medical records include diagnoses of depressive disorder,

schizoaffective disorder,1 adjustment disorder,2 and borderline intellectual
functioning.3
Court-Ordered Evaluations

1

The National Institute of Mental Health defined schizoaffective disorder as “[a] mental health
condition that causes both a loss of contact with reality (psychosis) and mood problems
(depression or mania).” Glossary, NATIONAL INSTITUTE OF HEALTH,
https://www.nimh.nih.gov/health/topics/schizophrenia/raise/glossary.shtml (last visited Dec. 6,
2017).
2
“Adjustment disorder is a group of symptoms, such as stress, feeling sad or hopeless, and
physical symptoms that can occur after you go through a stressful life event.” Medical
Encyclopedia, MEDLINEPLUS, https://medlineplus.gov/ency/article/000932.htm (last visited Dec. 6,
2017).
3
Borderline intellectual functioning is defined as an IQ between 71 and 84. For reference, mental
retardation is defined as an IQ of 70 or below. J.E. Schmidt, M.D., ATTORNEYS’ DICTIONARY OF
MEDICINE, (Matthew Bender 2017).

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Several psychologists evaluated Petitioner to opine whether he was fit to
stand trial.

In December 2004, Dr. Erick Neu conducted an assessment of

Petitioner, pursuant to a court order.

He stated Petitioner appeared to be

malingering both psychotic symptoms and cognitive impairment. According to
Dr. Neu, Petitioner was likely to behave in an oppositional manner towards
defense counsel due to maladaptive personality traits and not a mental illness or
defect, but was capable of collaborating with his counsel. Dr. Neu was unable to
perform a complete IQ test because Petitioner indicated trouble seeing without his
glasses. Dr. Neu used the verbal subtests of the Wechsler Adult Intelligence Scale
– III and Petitioner scored an IQ of 59, which falls in the Extremely Low Range.
However, the doctor determine this was likely a “significant underestimate” of
Petitioner’s IQ due to suspected malingering and verbal subtests being most
difficult for Petitioner. Dr. Neu determined Petitioner was fit to stand trial and
legally sane. (Doc. Ex. pp. 1-2).
In June and January of 2005, Dr. Roni Seltzberg also evaluated Petitioner
pursuant to a court order. Dr. Seltzberg opined on both occasions that Petitioner
was fit to stand trial and was legally sane. Id. at pp. 5-6.
Dr. Neu evaluated Petitioner again in March 2006. He noted Petitioner was
malingering, but nonetheless had legitimate cognitive problems. Id. at pp. 3-4.
Defense Expert Testimony
Dr. Michael Fields, a licensed clinical psychologist, testified at Petitioner’s
competency hearing in January 2006. Dr. Fields evaluated Petitioner on multiple
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occasions and opined Petitioner was not fit for trial. Dr. Fields explained that
Petitioner had significant problems processing verbal information effectively and
performed very poorly on the MacArthur Test, which assesses a person’s
understanding of what happens in a courtroom setting.

Dr. Fields stated

Petitioner had a “significant sub-average intellectual competence” and an IQ of 63.
He diagnosed Petitioner with major depressive disorder, recurrent; cocaine
dependence; alcohol dependence; rule-out schizoaffective disorder, depressive
type; mild mental retardation; and personality disorder not otherwise specified.
(Doc. 17, pp. 3-41).
Illinois Department of Corrections Mental Health Records
During the one-year limitations period, Petitioner received mental health
services through the Illinois Department of Corrections. On May 15, 2007, he
underwent a mental health evaluation upon intake. He was cooperative, alert and
oriented, and demonstrated an appropriate mood and affect. He was diagnosed
with depressive disorder and referred to a psychiatrist. (Doc. 19, p. 110).
Petitioner thereafter attended regular monthly sessions with a psychiatrist.
He appeared alert and oriented at each session and demonstrated logical and
coherent thoughts, along with fair insight and judgment. He repeatedly denied
any side effects from his medications. Id. at pp. 80, 82, 83, 85, 86, 88, 91, 94,
96, 99, 101, 103, 104, 106, 107.
In October 2007, Petitioner stated the devil had been talking to him for
twenty-two years. His psychiatrist diagnosed him with schizoaffective disorder,
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depressed type, and started him on Risperdal4 and Celexa.5 Id. at 107. Later that
month, Petitioner reported feeling better and stated the devil did not talk to him
anymore. His medications were reportedly helping. Id. at 106.
In November and December of 2007, Petitioner reported he heard voices
once or twice per week. His psychiatrist diagnosed him with adjustment disorder
with depressed mood and borderline intellectual functioning. Id. at pp. 103-05.
In January 2007, Petitioner reported he was nervous and paranoid. He
was still hearing voices.

Petitioner’s psychiatrist discontinued the Celexa and

started Petitioner on Remeron.6 Id. at 101.
In February 2008, Petitioner reported auditory hallucinations of a voice
telling him to kill himself.

He last attempted suicide five months before.

He

presented no signs of delusions or mania. Id. at 100.
In March 2008, Petitioner stated he was doing okay but sometimes heard
voices. Id. at p. 97.
Throughout the next nine months, Petitioner demonstrated logical,
coherent, and goal-directed thought processes. He denied any auditory or visual
hallucinations or delusions. His insight and judgment were fair, and he was alert
and oriented. He continued to take Risperdal and Remeron. Id. at pp. 79, 80,
82, 84, 85, 86, 88, 91, 94.

4

Risperdal is an antipsychotic medicine used to treat schizophrenia. DRUGS.COM,
https://www.drugs.com/risperdal.html (last visited Dec. 6, 2017).
5
Celexa is an antidepressant used to treat depression. DRUGS.COM,
https://www.drugs.com/search.php?searchterm=celexa (last visited Dec. 6, 2017).
6
Remeron is an antidepressant used to treat major depressive disorder. DRUGS.COM,
https://www.drugs.com/search.php?searchterm=remeron (last visited Dec. 6, 2017).

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Analysis
“Equitable tolling is an extraordinary remedy” that courts “rarely” grant.
Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013). “[A] petitioner is entitled
to equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotations omitted).
The Seventh Circuit has held that mental incompetence may constitute an
extraordinary circumstance to justify equitable tolling. Davis v. Humphreys, 747
F.3d 497, 499 (7th Cir. 2014). However, a person is not entitled to tolling just
because his shortcomings played a causal role in the delayed filing. Id. A low IQ,
illiteracy, a lack of educability, and the inability to cope with legal subjects does
not per se entitle someone to tolling. Id. at 500. Rather, the person’s mental
condition must “in fact” prevent him “from understanding his legal rights and
acting upon them.” Carpenter v. Douma, 840 F.3d 867, 872 (7th Cir. 2016).
Petitioner, here, has not shown he was incapable of understanding or acting
upon his legal rights. To the contrary, the facts weigh strongly in favor of the
opposite conclusion.

Petitioner filed a post-conviction petition, a request for

appointment of counsel, and an appeal of the petition’s denial in 2009. He also
filed a Petition for Relief from a Void Judgment, a House Bill Sentence Reduction
Motion, a Motion to Proceed in Forma Pauperis, and a Motion for Appointment of

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Counsel, in 2014. Finally, Petitioner filed a § 2254 petition pro se in March 2016.
(Doc. 16, pp. 2-5).
Despite initiating all of these proceedings, Petitioner posits he was unable to
pursue his § 2254 during the limitations period.

Petitioner maintains he was

mentally incompetent since as early as 2007 and does not assert his condition
was worse during the limitations period. He states he cannot recall how he was
able to pursue the aforementioned legal filings, but insists he was only able to do
so with the assistance of other inmates. (Doc. 16, p. 18). However, the inquiry is
not whether Petitioner was competent enough to prepare the legal documents
himself. As the Seventh Circuit explained, “Many persons of normal intellect are
unable to cope with the legal system.” Davis v. Humphreys, 747 F.3d 497, 499
(7th Cir. 2014). Instead, this Court examines whether Petitioner was capable of
understanding and acting upon his legal rights.

Clearly he was; Petitioner

acknowledges he sought out assistance from other inmates and visited the law
library in pursuit of his § 2254.
In addition, Petitioner’s mental health records from IDOC do not indicate
Petitioner’s conditions rose to the level of extraordinary circumstances.
Throughout the majority of the limitations period, Petitioner demonstrated logical
and coherent thought processes, he was alert and oriented, and his psychiatrist
opined his judgment and insight were fair.
In sum, Petitioner was cognizant of his right to file the instant motion and
even took steps toward doing so. He cannot show his mental conditions in fact

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caused his untimely filing and he therefore fails to show extraordinary
circumstances impeded his ability to timely file his claim.
Petitioner also fails to show he diligently pursued his claim throughout the
required period. Petitioner bears the burden of establishing he was “reasonably
diligent in pursuing his rights throughout the limitations period and until he
finally filed his untimely habeas petition.” Id. at 870 (emphasis added). In the
case at bar, this period encompasses eight years.

Petitioner makes a vague

reference to visiting the law library and asking other inmates for assistance, which
is insufficient to show diligence for such a lengthy period.
Petitioner has not shown he is entitled to equitable tolling.

His mental

incompetency does not constitute an extraordinary circumstance; he was able to
understand and act upon his legal rights.

Moreover, he does not set forth

evidence he was reasonably diligent in pursuing his claim throughout the entirety
of the limitations period and up until he filed his § 2254.
Lastly, the Court considered whether Petitioner meets the fundamental
miscarriage of justice standard of McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
McQuiggin holds that “a credible showing of actual innocence” may overcome the
bar of the one-year statute of limitations for filing a habeas petition under 28
U.S.C. § 2254. Id. at 1931. The Supreme Court reaffirmed the Schlup standard
for a credible showing of actual innocence, cautioning that “tenable actualinnocence gateway pleas are rare” and describing the Schlup standard as
“demanding” and “seldom met.” Id. at 1928.

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A credible claim of actual innocence “requires petitioner to support his
allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298,
324 (1995). The Schlup standard permits habeas review of defaulted claims only
in the “extraordinary case” where the petitioner has demonstrated that “more
likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt—or, to remove the double negative, that more
likely than not any reasonable juror would have reasonable doubt.”

House v.

Bell, 547 U.S. 518, 538 (2006). Here, petitioner does not assert his innocence,
present any new evidence, or otherwise make an argument under McQuiggin. As
such, he cannot meet McQuiggin’s fundamental miscarriage of justice standard.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing § 2254 Cases in the United
States District Courts, this Court must “issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.”

A certificate should be

issued only where the petitioner “has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where a habeas petition is dismissed on procedural grounds without
reaching the underlying constitutional issue, the petitioner must show that
reasonable jurists 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

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debatable whether the district court was correct in its procedural ruling.” Slack
v. McDaniel, 120 S. Ct. 1595, 1604 (2000).

Both components must be

established for a COA to issue.
Here, it is clear that Petitioner’s petition is time-barred and he has not
advanced a credible claim of actual innocence within the meaning of McQuiggin
and Schlup. No reasonable jurist would find the issue debatable. Accordingly,
the Court denies a certificate of appealability.
Conclusion
Respondent’s Motion to Dismiss Petitioner’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (Doc. 24) is GRANTED.
Bill Conway’s Amended Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2254 (Doc. 16) is DISMISSED WITH PREJUDICE.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.

Judge Herndon
2017.12.08
07:37:27 -06'00'
United States District Judge

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Notice
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within thirty days of the entry of judgment. Fed. R. App.
P. 4(a)(1)(B). A motion for leave to appeal in forma pauperis should set forth the
issues petitioner plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C).
Petitioner is further advised that a motion to alter or amend the judgment filed
pursuant to Fed. R. Civ. P. 59(e) must be filed no later than twenty-eight days
after the entry of the judgment—a deadline that cannot be extended. A proper
and timely Rule 59(e) motion may toll the thirty-day appeal deadline.

Other

motions, including a Rule 60 motion for relief from a final judgment, order, or
proceeding, do not toll the deadline for an appeal.

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