Nichols v. IDOC Director et al

Filing 5

MEMROANDUM AND ORDER re 1 Petition for Writ of Habeas Corpus filed by Demetrius M Nichols. IT IS HEREBY ORDERED that: (1) Not later than 2/2/2017, Petitioner is DIRECTED to pay the $5.00 filing fee. Failure to comply shall result in dismis sal of this action for failure to prosecute. (2) Not later than 2/2/2017, Petitioner is DIRECTED to show cause why his petition should not be dismissed as barred by the one year statute of limitations found in 28 U.S.C. § 2244(d)(1). In particu lar, Petitioner should specify when he underwent the major surgeries referenced in his Petition and how those surgeries prevented him from timely filing the instant Petition. (3) Petitioner should label this document a Supplement to Petition for a W rit of Habeas Corpus under § 2254 and he should be sure to declare that any statements he makes in the supplement are made under penalty of perjury. 28 U.S.C. § 2242. (4) If Petitioner does not submit a Supplement as directed in this order by 2/2/2017 the Court will dismiss his Petition with prejudice as untimely under Rule 4 of the Rules Governing Section 2254 Cases. (Supplemental Pleading due by 2/2/2017. Filing Fee due on or before 2/2/2017, Show Cause Response due by 2/2/2017.) Signed by Judge David R. Herndon on 1/4/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMETRIUS M. NICHOLS,
No. N-61355,
Petitioner,
vs.

–01101-DRH

IDOC DIRECTOR, and
KIMBERLY BUTLER
Defendants.
MEMORANDUM AND ORDER
HERNDON,

Petitioner Demetirus M. Nichols, an inmate in the custody of the Illinois
Department of Corrections and currently housed at Menard Correctional Center,
brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 1
Petitioner is challenging a March 2011 conviction for aggravated battery on a
correctional officer.
This matter is now before the Court for a preliminary review of the § 2254
Petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States
District Courts.

Rule 4 provides that upon preliminary consideration by the

1

A person convicted in state court is generally limited to filing only one petition for writ of habeas
corpus in federal court. Petitioner has two prior § 2254 petitions. See Nichols v. Hulick, No. 07–
cv–03498, 2008 WL 681029 (N.D.Ill. 2008) (Anderson, J.); Nichols v. State, No. 15-cv-00633,
2015 WL 4092057 (S.D. Ill. 2015) (Herndon, J.). Both prior petitions pertained to a different
conviction than the conviction at issue in the instant action. Accordingly, this is not a “successive”
petition as contemplated by § 2244.

1

district court judge, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.” District
courts are permitted to consider, sua sponte, the timeliness of a prisoner's
motion to vacate. See Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 164
L.Ed.2d 376 (2006).
The state will not be required to answer the Petition at this time because, as
is explained more fully below, the Petition appears to be untimely.

However,

before dismissing the Petition on that ground, the Court will allow Petitioner the
opportunity to respond to this Order and to show cause why the Petition should
not be dismissed. See Id. at 210.

On October 17, 2016, Petitioner’s motion for leave to proceed in forma
pauperis (“IFP”) was denied. (Doc. 4). Petitioner was ordered to pay the $5.00
filing fee no later than November 16, 2016. To date, the fee has not been paid.
The Court will allow an extension with regard to payment of the $5.00 filing fee.
Petitioner must pay the filing fee on or before F

.

Petitioner is

warned that failure to pay the fee shall result in dismissal of this action for failure
to prosecute.

2

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 “properlyfiled” state postconviction petition. 28 U.S.C. § 2244(d)(2). The one-year statute of
limitations is also “subject to equitable tolling in 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.

3

In October 2010, the Livingston County grand jury indicted Petitioner, who
was already incarcerated, with one count of aggravated battery. See People v.
Nichols, 979 N.E.2d 1002, 1004 (Ill. App. 4th Dist. 2012).

The indictment

charged that defendant made contact of an insulting or provoking nature with a
Department of Corrections employee, striking him upon his head and body,
knowing him to be a state-employed corrections officer engaged in the
performance of his authorized duties. Id. See also 720 ILCS 5/12–3(a)(2), 12–
4(b)(18).

In March 2011, a jury found Petitioner guilty as charged in the

indictment. Id. In June 2011, the trial court sentenced Petitioner to seven years
in prison, to be served consecutively to sentences Petitioner was already serving.
Id.

On November 27, 2012, the Fourth District Appellate Court of Illinois

affirmed Petitioner’s conviction and sentence. Id. On March 27, 2013, the Illinois
Supreme Court denied Petitioner’s petition for leave to appeal. People v. Nichols,
985 N.E.2d 309 (Ill. 2013).

Because Petitioner did not petition the Supreme

Court for certiorari, his conviction became final on June 25, 2013. 2 Pursuant to §
2244(d)(1)(A), the statute of limitations to file a habeas petition in federal court
expired a year later on June 25, 2014. Petitioner did not file his § 2254 petition
until September 29, 2016. Accordingly, unless one of the other predicates listed
in Section 2244(d)(1) provided a later date for the conviction becoming final or

2

Petitioner had ninety days from the denial of the PLA to file a petition for certiorari. S. Ct. R.
13(1).

4

Petitioner is entitled to statutory or equitable tolling, the Petition is untimely and
subject to dismissal.
Other
Petitioner does not assert that the predicates listed in § 2244(d)(1)(C) or (D)
are present in this case.

However, Petitioner appears to argue that the Court

should apply 28 U.S.C. § 2244(d)(1)(B) because State action impeded his ability
to file a timely habeas corpus petition. Specifically, Petitioner states he was
injured while incarcerated and denied medical assistance from February 20, 2009
through September 12, 2012. (Doc. 1, p. 7). Additionally, Petitioner states he
was denied medical treatment from February 26, 2015 through August 6, 2015.
“Although neither § 2244 nor this circuit has defined what constitutes an
‘impediment’ for purposes of § 2244(d)(1)(B), the plain language of the statute
makes clear that whatever constitutes an impediment must prevent a prisoner
from filing his petition.” Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002)
(emphasis in original).
Here, the alleged impediments did not prevent Petitioner from filing his
petition because they did not occur during the relevant time period (between June
25, 2013 and June 25, 2014).

The first alleged impediment was removed in

September 2012 – before Petitioner’s conviction became final. The second alleged
impediment occurred in 2015 - after the time for filing his federal habeas petition
expired. At present, Petitioner merely alleges that there were occasional state-

5

created impediments during the time Petitioner has been in custody. This is not
sufficient to render the § 2254 Petition timely.

Under section 2244(d)(2), the one-year statute of limitations period is tolled
while “a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. §
2244(d)(2); see also Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807,
161 L.Ed.2d 669 (2005).

Here, Petitioner filed a post-conviction petition or

motion with the trial court in July 2014. 3

Petitioner filed additional post-

conviction petitions in May and June 2016. 4 Petitioner did not file any appeals in
relation to the striking or dismissal of his post-conviction pleadings. (Doc. 1, pp.
8-16). 5

3

On July 21, 2014, Petitioner filed a pleading with the state trial court. (Doc. 1, pp. 28-29). On
August 11, 2014, the trial court entered an order stating as follows:
[The trial court] cannot decipher the nature of the motion or petition, whatever it
may be – Court finds that the motion is meritless. The court finds that the filing is
simply a rambling of the Deft with no basis having exercised his rights to appeal
previously. Therefore, the Court strikes Defts 7/21/14 filing.
(Doc. 1, p. 29).
4

Petitioner filed a post-conviction petition to vacate judgment and sentencing with the trial court
on May 27, 2016 and a substantially similar petition on June 20, 2016. (Doc. 1, p. 20). The trial
court addressed both petitions in an order dated July 18, 2016. Id. Ultimately, the trial court
dismissed the petitions in their entirety, finding that they were frivolous and failed to state the gist
of a constitutional claim. (Doc. 1, p. 21).

5

Petitioner states that he has an appeal or petition currently pending. (Doc. 1, p. 16). He
indicates that the pending matter relates to mittimus number 02C66187601 and references a
filing date of June 23, 2016. Id. Although the Court was unable to locate the relevant petition, the
referenced mittimus number relates to Petitioner’s underlying conviction in 2002 and does not
appear to be related to the 2007 conviction at issue here (mittimus number 10cf294). See
https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=N61355.

6

These filings are irrelevant for tolling purposes because they were filed after
the one-year statute of limitations for filing his § 2254 petition had already
expired. See Teas v. Endicott, 494 F.3d 580, 582-83 (7th. Cir. 2007) (where
limitations period under § 2244(d)(1)(A) expired before filing of state postconviction petition, no collateral review was pending in state court for tolling
purposes). Because Petitioner had no application for collateral review pending in
the state court between June 25, 2013 and June 25, 2014, the one-year statute of
limitations period ran unabated and expired well before Petitioner filed his state
post-conviction pleadings, making his federal habeas petition untimely.
Petitioner also indicates that he has had at least two “major” surgeries
during his incarceration. (Doc. 1, p. 7). However, Petitioner does not specify the
date of the surgeries or how the surgeries interfered with his ability to file.
Under AEDPA, equitable tolling applies in only extraordinary circumstances
beyond the petitioner's control that prevent him from filing his petition on time.
Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996).

The fact that Petitioner

underwent two surgeries sometime during his incarceration does not, in and of
itself, warrant equitable tolling. Further, the Petition does not present any specific
facts that explain how these surgeries prevented Petitioner from filing a timely
habeas petition.

Accordingly, the Court cannot determine whether equitable

tolling is warranted.

7

For the reasons discussed herein, it appears that the Petition is untimely.
Nonetheless, as noted above, prior to dismissing the Petition based on the statute
of limitations, the Court will provide Petitioner with an opportunity to present his
position on this issue. Accordingly, the Court will allow Petitioner to supplement
his pleadings and to show cause why his claims are not barred from federal
review by the one-year statute of limitations found in 28 U.S.C. § 2244(d)(1).
IT IS HEREBY ORDERED that:
(1)

, Petitioner is DIRECTED to pay the

Not later than

$5.00 filing fee. Failure to comply shall result in dismissal of this
action for failure to prosecute.
(2)

, Petitioner is DIRECTED to show

Not later than

cause why his petition should not be dismissed as barred by the oneyear statute of limitations found in 28 U.S.C. § 2244(d)(1).

In

particular, Petitioner should specify when he underwent the “major”
surgeries referenced in his Petition and how those surgeries
prevented him from timely filing the instant Petition.
(3)

Petitioner should label this document a “Supplement to Petition for a
Writ of Habeas Corpus under § 2254” and he should be sure to
declare that any statements he makes in the supplement are made
under penalty of perjury. 28 U.S.C. § 2242.

8

(4)

If Petitioner does not submit a Supplement as directed in this order
by

the Court will dismiss his Petition with

prejudice as untimely under Rule 4 of the Rules Governing Section
2254 Cases.
IT IS SO ORDERED.
Signed this 4th day of January, 2017

9

Judge Herndon
2017.01.04
09:59:24 -06'00'