Anderson v. Jamiet
ORDER granting 11 Motion to Dismiss and dismissing case with prejudice. Further, the Court DIRECTS the Clerk of the Court to enter judgment. See Order for details. Signed by Judge David R. Herndon on 11/29/2017. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARK J. ANDERSON,
Civil No. 17-cv-331-DRH-CJP
MEMORANDUM and ORDER
HERNDON, District Judge:
Petitioner Mark J. Anderson was convicted of two counts of predatory
criminal sexual assault of a child and one count of aggravated criminal sexual
abuse after a jury trial in the Circuit Court of DuPage County, Illinois, in 2003.
He was sentenced to consecutive terms of imprisonment totaling twenty-three
years. After exhausting state court remedies, he filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. §2254. (Doc. 1).
This matter is now before the Court on respondent’s Motion to Dismiss,
arguing that the petition is time-barred. (Doc. 11). Petitioner responded to the
motion at Doc. 14.
Grounds Asserted for Habeas Relief
As construed on preliminary review, the petition states the following
Warden Jaimet’s last name was misspelled as “Jamiet” in the petition.
correct spelling as indicated in her motion, Doc. 11.
Page 1 of 11
The Court uses the
1. Use of inadmissible hearsay evidence (minor victim’s statements made
to an investigator) at trial;
2. The introduction of petitioner’s illegally obtained confession;
3. Lack of corroborating evidence;
4. Lack of DNA testing;
5. Ineffective assistance of appellate counsel; and
6. Actual innocence.
See, Doc. 3.
In view of the issue raised in respondent’s motion, it is not necessary to
delve too deeply into the facts underlying petitioner’s conviction.
This summary of the fact is taken from the Appellate Court’s Rule 23 Order
determinations of facts “shall be presumed to be correct” and can only be
rebutted by “clear and convincing evidence.”
28 U.S.C. §2254(e)(1).
has not offered any evidence to rebut the state court’s determinations of fact.
The victim was petitioner’s nine-year-old stepdaughter, A.F. A.F. told her
brother, J.F., that petitioner sexually abused her, and J.F. told their mother. The
mother contacted the police. Casey Woodham, an investigator with the DuPage
County Children’s Center, interviewed the victim. A.F. made detailed statements
describing petitioner’s abuse of her.
Petitioner was interviewed by a different
For ease of reference, the Court uses the document, exhibit and page numbers assigned by the
CM/ECF electronic filing system. Unless otherwise indicated, all exhibits referred to are attached
to Doc. 11.
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investigator and a detective; during that interview, he confessed to sexually
abusing A. F.
About two years later, A.F. was interviewed again. This time, A.F. said that
she had been abused by a man named “Robert” whom she had met at a park and
who had come to her home five times and abused her. She also said that her
brother J.F. had told her to change her story so that Anderson would not go to
At trial, the videotaped confession was played, and Casey Woodham
testified about the statements made by A.F. during the first interview.
testified that it was “Rob” and not petitioner who had abused her. A detective
testified that he had removed a stained comforter and a carpet sample from the
home. A forensic scientist testified that the carpet did not contain blood or semen
and that the stain on the comforter tested positive for semen.
semen on the comforter did not match petitioner’s DNA profile.
testified that he had never had sexual contact with A.F. and said that he had
confessed on videotape in order to get the interview to end. Ex, 2, pp. 1-7.
Petitioner’s direct appeal was initially dismissed because his attorney had
not filed a proper notice of appeal. After petitioner filed a postconviction petition
alleging ineffective assistance of counsel, he was granted leave to file a late notice
of appeal. Ex. 2, p. 8. The Appellate Court denied petitioner’s direct appeal on
May 24, 2011. The Illinois Supreme Court denied his petition for leave to appeal
on November 30, 2011. The United States Supreme Court denied certiorari on
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June 4, 2012. Ex. 2-4.
In May 2012, petitioner filed a motion for DNA testing pursuant to 725
ILCS 5/116-3. The motion was denied, and the Appellate Court affirmed on May
29, 2014. Petitioner’s PLA was denied on September 24, 2014. Ex. 5-7.
Petitioner filed a motion for leave to file a successive postconviction petition
on November 30, 2012. The trial court denied the petition, but the Appellate
Court reversed because this was petitioner’s first postconviction petition following
his belated direct appeal. The petition was summarily denied, and the Appellate
Court affirmed on October 20, 2015. Petitioner’s PLA was denied on March 30,
2016. Ex. 8-10.
Petitioner mailed his habeas petition via the prison mail system on March
28, 2017. 3 Doc. 1, p. 15.
Applicable Legal Standards
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:
the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
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
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
The “mailbox rule” applies to a petition under §2254. Jones v. Bertrand, 171 F.3d 499 (7th Cir.
1999); Rule 3(d) of the Rules Governing Section 2254 Cases.
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recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
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
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).
Petitioner does not allege that his habeas claim arises out of newlydiscovered facts or a newly-recognized constitutional right, or that the state
created an impediment to filing. Therefore, §2244(d)(1)(A) applies, and the oneyear limitations period began to run when the judgment became final.
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).
Here, Anderson’s conviction and sentence became final when the United
States Supreme Court denied his petition for a writ of certiorari on June 4, 2012.
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Therefore, the one-year period started running on June 5, 2012.
Under 28 U.S.C. §2244(d)(2), the one-year limitations period is tolled
during the pendency of a “properly filed” application for postconviction relief.
Respondent concedes that the motion for leave to file a state postconviction
petition was a “properly filed” application for postconviction relief. Applying the
mailbox rule, the postconviction petition was filed on November 30, 2012. That
petition served to toll the one-year period during the time it was pending. Doc.
11, p. 6.
Anderson’s postconviction PLA was denied on March 30, 2016, and the
limitations period began running again.
The limitations period was not tolled
during the subsequent ninety days during which petitioner could have filed, but
did not file, a petition for a writ of certiorari in the United States Supreme Court.
Jones v. Hulick, 449 F.3d 784, 788 (7th Cir. 2006). This is because “the statute
of limitations is tolled only while state courts review the application.” Lawrence v.
Florida, 127 S. Ct. 1079, 1083 (2007).
The one-year period began to run again on March 31, 2016. The federal
habeas petition was filed on March 28, 2017, almost a full year later. If all of the
previous time had been tolled, the petition would have been timely. However,
178 days of the one-year period had elapsed between the day on which the
conviction and sentence became final and the day on which the state
postconviction petition was filed. The habeas petition was therefore untimely.
Petitioner believed that his motion for forensic testing served to toll the one-
Page 6 of 11
year period. See, Doc. 1, p. 7. That is incorrect. A motion for forensic testing
under 725 ILCS 5/116-3 “is not a collateral review of the underlying judgment and
therefore does not toll the statute of limitations for bringing a federal habeas
corpus petition under 28 U.S.C. § 2254.” Price v. Pierce, 617 F.3d 947, 952 (7th
In his response to the motion, petitioner argues that equitable tolling
should be applied here. He says that the one-year period should be tolled because
access to the prison law library is limited and he was incorrectly advised by a
prison law clerk that his motion for forensic testing would serve to toll the oneyear period.
The Supreme Court has emphasized that “the circumstances of a case must
be ‘extraordinary’ before equitable tolling can be applied.” Holland v. Florida, 130
S. Ct. 2549, 2564 (2010). A petitioner’s lack of legal knowledge or mistake as to
the due date are not extraordinary circumstances justifying equitable tolling.
Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013).
And, most, if not all,
prisoners face limitations in library access; that circumstance is not extraordinary
and does not justify tolling. Jones v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006).
In any event, limited library access did not prevent Anderson from preparing his
habeas petition on time. He admits that he had the petition ready to go before the
one-year period actually ended, but he waited until what he believed was the filing
deadline because he knew he would be limited to only one habeas petition and
wanted to make sure that he did not file prematurely. See, Doc. 14, pp. 2-3.
Page 7 of 11
Lastly, Anderson argues that he 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. McQuiggin, 133 S. Ct. at 1931. The Supreme Court
reaffirmed the Schlup standard for a credible showing of actual innocence,
cautioning that “tenable actual-innocence gateway pleas are rare” and describing
the Schlup standard as “demanding” and “seldom met.” McQuiggin, 133 S. Ct. at
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, 115 S. Ct.
851, 865 (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,
126 S. Ct. 2064, 2077 (2006).
Here, petitioner has not come forward with any new evidence at all. Rather,
he argues that if either the victim’s out of court statements or his confession were
excluded, no reasonable jury would have convicted him. He also argues that DNA
Page 8 of 11
testing of the material on the comforter might lead to information that would
identify “Rob.” These arguments fall far short of meeting the demanding Schlup
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 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 COA to issue.
Here, it is clear that Anderson’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.
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Respondent’s Motion to Dismiss (Doc. 11) is GRANTED.
This action is DISMISSED WITH PREJUDICE.
The Clerk of Court shall
enter judgment accordingly.
IT IS SO ORDERED.
United States District Judge
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If petitioner wishes to appeal the dismissal or 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)(A). 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.
A certificate of appealability is required to appeal from the dismissal or
denial of a §2254 petition. Rule 11 of the Rules Governing §2254 Cases requires
that, when entering a final order adverse to the petitioner, the district court must
issue or deny a certificate of appealability.
Here, the Court has denied a
certificate. In order to appeal the dismissal or denial of his petition, petitioner
must obtain a certificate of appealability from the court of appeals.
Petitioner cannot appeal from this Court’s denial of a certificate of
appealability. Further, a motion to reconsider the denial does not extend the time
for appeal. See, Rule 11(a).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 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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