Barnes v. IDOC et al

Filing 29

ORDER granting 20 Motion to Dismiss, dismissing the petition without prejudice as untimely and declining to issue a certificate of appealability. The Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 4/12/17. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DIAMOND LANEIL BARNES,
Petitioner,
vs.

Civil No. 16-cv-798-DRH-CJP

JEFF HUTCHINSON,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, Diamond LaNeil Barnes, was convicted of first degree murder at
a bench trial in Madison County, Illinois in October 2010. (Doc. 6, Attach. 1, pp.
45-46; Doc. 21 Exh. A, pp.10-11). He was sentenced to forty-five years
imprisonment. Id. at p. 13.
In July 2016, petitioner filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. §2254 (Doc. 1), alleging, in short, that: his underlying conviction is
not sound because Illinois law was, or is, contrary to federal law regarding the
right to bear arms; and, based on his interpretations of the law, the facts
presented did not support a conviction beyond a reasonable doubt. (Doc. 1). 1
This matter is now before the Court on respondent’s motion to dismiss the
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Petitioner challenges his conviction on forty-four separate grounds. Common themes amongst his
claims include: the duty to retreat and stand your ground laws, the full faith and credit clause, his
First Amendment rights to seek redress, his Second Amendment rights to bear arms, his Fifth
Amendment due process rights, his Fourteenth Amendment equal protection rights, and his right
to travel.
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habeas petition as untimely (Doc. 20) to which petitioner responded (Doc. 26).
Relevant Facts
Petitioner was arrested and charged with first degree murder for the death
of Marcus Anthony Shannon in May 2009. (Doc. 1, p. 16). Petitioner’s case
proceeded to a two-day bench trial and petitioner was convicted of first degree
murder in October 2010. (Doc. 1, p. 16; Doc. 26, pp. 10-11). Petitioner
represented himself at trial but had counsel at his sentencing. (Doc. 1, p. 12; Doc.
26, Exh. A, pp. 13-14). On April 8, 2011 petitioner was sentenced to serve fortyfive years in the Illinois Department of Corrections. (Doc. 21, Exh. A, P. 10).
In July 2012, the Illinois Appellate Court affirmed petitioner’s conviction.
(Doc. 21, Exh. B)(People v. Barnes, No. 5-11-0246 (Ill. App. Ct. 2012)). Petitioner
filed a petition for leave to appeal (PLA) that was denied by the Illinois Supreme
Court in November 2012. (Doc. 21, Exh. C)(People v. Barnes, No. 114973 (Ill.
2012)). Petitioner did not file a petition for writ of certiorari in the United States
Supreme Court. (Doc. 1, p. 9). In May 2013, petitioner filed a pro se state habeas
complaint in the Circuit Court of Madison County. (Doc. 1, p. 83). The trial court
dismissed the complaint, the appellate court affirmed the dismissal, and the
Illinois Supreme Court denied petitioner’s subsequent PLA on September 30,
2015. (Doc. 21, Exh. D, E)(People v. Barnes, No. 119175 (Ill. 2015)).
In 2013, petitioner filed a motion to produce fingerprint and DNA testing
and in 2014 he filed two mandamus complaints in the Circuit Court of Madison
County. (Doc. 21, Exh. A, p. 13; Exh. F; Exh. G)(Docket Sheet, Barnes v. Hackett,

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No. 2014 MR 42 (Cir. Ct. Madison Cnty.)); (Docket Sheet, Barnes v. Crowder, No.
2014 MR 65 (Cir. Ct. Madison Cnty.)). The trial court denied the motion for
additional

testing

and

dismissed

the

mandamus

complaints.

Petitioner

unsuccessfully attempted to pursue these matters to the Illinois Supreme Court.
(Doc. 21, Exh. H; Exh I; Exh. J)(People v. Barnes, No. 119471 (Ill.
2015));(Barnes v. Hackett, No. 119198 (Ill. 2015)); (Barnes v. Crowder, No.
118988 (Ill. 2015)).
Applicable Legal Statutes
28 U.S.C. §2244 creates a one-year limitation period for filing a petition for
writ of habeas corpus. Under 28 U.S.C. §2244(d)(1), a person convicted in state
court must file his federal habeas petition within one year of 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.
The one-year statute of limitations is tolled during the pendency of a
“properly-filed” state postconviction petition. 28 U.S.C. §2244(d)(2).
The one-year statute of limitations is also “subject to equitable tolling in

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appropriate cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Equitable
tolling applies only where the petitioner 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, 130 S. Ct. at 2562, citing Pace v,
DiGuglielmo, 125 S. Ct. 1807, 1814 (2005). The Supreme Court has emphasized
that “the circumstances of a case must be ‘extraordinary’ before equitable tolling
can be applied.” Holland, 130 S. Ct. at 2564.
Analysis
Petitioner does not allege that his habeas claim arises out of newlydiscovered facts, a newly-recognized constitutional right, or that the state created
an impediment to filing. Therefore, §2244(d)(1)(A) applies, and the one year
limitations period began to run when his judgment became final. In a criminal
case, the judgment is the sentence; the judgment is final and the one-year period
begins to run when both the conviction and sentence have become final upon the
conclusion of direct review or the expiration of time for seeking direct review.
Burton v. Stewart, 127 S. Ct. 793, 799 (2007).
Petitioner’s PLA was denied on direct appeal on November 28, 2012.
Petitioner did not file a writ of certiorari in the United States Supreme Court after
this direct appeal. As a result, petitioner’s conviction became “final” under
§2244(d)(1)(A) ninety days later and his habeas petition is due one year from that
date. Absent tolling, this would have made February 26, 2014 the date for a timely
habeas petition. However, under 28 U.S.C. §2244(d)(2), the one-year limitations

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period is tolled during the pendency of a “properly filed” application for
postconviction relief.
Petitioner properly filed his state habeas petition on May 31, 2013 and his
one-year period of limitation became tolled until September 30, 2015 when the
Illinois Supreme Court denied his PLA. 28 U.S.C. §2244(d)(2); (Doc. 1, p. 83);
Doc 21, Exh. E). Petitioner allowed ninety-three days of untolled time to pass
between the date his conviction became “final” (February 26, 2013) and the date
he filed his state habeas complaint (May 31, 2013). Subtracting the ninety-three
days from his year, he had 272 days, or until June 28, 2016, to file a timely
habeas petition. Petitioner filed his habeas petition on July 11, 2016. (Doc. 1).
Petitioner claims that the reviewing court issued a “final mandate” on
petitioner’s direct appeal on January 9, 2013. (Doc. 29, pp. 5-6). The order
petitioner references states “be it remembered that on the 11th day of July, 2012,
the final judgment of the Appellate Court was entered of record. . .” and goes on to
reference the decision where petitioner’s conviction and sentence were affirmed.
(Doc. 29, p. 144). This is not a new opinion, but a reference to the opinion issued
in July 2012. Petitioner filed a PLA for that opinion and was ultimately denied in
November 2012. Ninety days from the denial in November is when his conviction
became final. The document dated in January 2013 does not impact the
timeliness of plaintiff’s petition in any way.
Plaintiff also states that the judgment “becomes final” either “ninety days
after the entry of disposition to the reviewing courts judgment; or sixty-nine days

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after the reviewing court issues its mandate” and references §2244(d)(2). (Doc.
29, p. 5). §2244(d)(2) states “[t]he 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 shall not be counted toward any period of limitation
under this subsection.” It is unclear where petitioner came up with the “sixty-nine
days” figure, but §2244(d)(2) is discussed and applied to the case at hand above
and petitioner’s case became untimely after June 28, 2016.
Petitioner concedes that his PLA was denied on September 30, 2015 but
states that his mandate “finalized” at the conclusion of his collateral review on
November 4, 2015. (Doc. 29, pp. 6-7). The judgment from the Illinois Supreme
Court plaintiff references states that “[o]n the thirtieth day of September, 2015,
the Supreme Court entered the following judgment. . . the Petition to Appeal as a
matter of right is DENIED.” (Doc. 1, p. 175). The clerk of the Illinois Supreme
Court signed the judgment on November 4, 2015. However, that does not change
the date on which the Supreme Court entered its judgment.
Petitioner’s mandamus complaints and motion for forensic testing do not
equate to a collateral attack on his conviction and therefore do not toll the
limitations period for his habeas petition. See Price v. Pierce, 617 F.3d 947, 952
(7th Cir. 2010) (DNA testing motion does not have tolling effect); Topps v.
Chandler, No. 12 C 3028, 2013 WL 1283812, at *3 (N.D. Ill. Mar. 26, 2013)
(mandamus complaint that does not attack validity of conviction or sentence is
not “collateral review” under § 2244(d)(2)). Petitioner’s mandamus complaints do

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not attack the validity of his conviction because mandamus is only appropriate to
compel public officials to act in accordance with their duties under Illinois law.
Burnette v. Terrell, 905 N.E.2d 816, 829 (Ill. 2009). Mandamus is not used to
raise the type of constitutional claims suitable for direct appeal or federal habeas.
See Chicago & NW Transp. Co. v. Matoesian, 426 N.E.2d 888, 891 (Ill. 1981).
Therefore, petitioner is not entitled to additional statutory tolling on these filings.
Petitioner is also not entitled to equitable tolling as such tolling is only
available if a petitioner pursued his rights diligently and an extraordinary
circumstance prevented timely filing. Holland v. Florida, 560 U.S. 631,
649(2010); Pace, 544 U.S. at 418; Arrieta v. Battaglia, 461 F.3d 861, 867 (7th
Cir. 2006). Petitioner did not acknowledge his petition was untimely in his initial
petition and did not claim he had an extraordinary circumstance justifying delay
in filing. Therefore, petitioner is not entitled to equitable tolling.
Petitioner argues that this Court should “relax the stringent statute of
limitations” and references “exceptional cases” that involve compelling claims of
actual innocence. House v. Bell, 547 U.S. 518, 522 (2006); In re Davis, 557 U.S.
952 (2009); Bousley v. United States, 523 U.S. 614 (1998). Petitioner
peripherally argues actual innocence within his initial petition and his traverse to
respondent’s motion to dismiss. The Supreme Court has addressed this issue and
stated “prisoners asserting innocence as a gateway to defaulted claims must
establish that, in light of new evidence, ‘it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.’”

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House, 547 U.S. at 536–37(internal citations omitted). Petitioner has not
established there is new evidence, nor has he established that it is more likely
than not that no reasonable juror would have found him guilty beyond a
reasonable doubt. Therefore, his actual innocence claim fails and his petition is
procedurally defaulted.
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
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 certificate of appealability to be issued.
Here, it is apparent that petitioner did not file his petition in the statutorily
required time limit. No reasonable jurist would find this issue debatable.
Accordingly, the Court denies a certificate of appealability.

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Conclusion
Respondent’s Motion to Dismiss Petitioner’s Habeas Petition as Untimely
(Doc. 20) is GRANTED.
This action is DISMISSED WITHOUT PREJUDICE. The Clerk of Court
shall enter judgment accordingly.
IT IS SO ORDERED.
Signed this 12th day of April, 2017.

Judge Herndon
2017.04.12
15:57:11 -05'00'
UNITED STATES DISTRICT JUDGE

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