Burnett v. Mueller

Filing 30

ORDER DISMISSING CASE. Burnett's Petition for habeas corpus relief under 28 U.S.C. Sec. 2254 (Doc. 1 ) is DENIED. This action is DISMISSED with prejudice. All pending motions are DENIED as moot. Signed by Chief Judge Nancy J. Rosenstengel on 10/28/2019. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRY BURNETT, # B-14533,
Petitioner,
vs.
WARDEN OF ROBINSON
CORRECTIONAL
CENTER,
Respondent.

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Case No. 17-cv-650-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
On July 11, 2013, Petitioner Terry Burnett pled guilty to two offenses in Peoria County:
unlawfully acquiring a controlled substance (Case No. 11-CF-961) and burglary (Case No. 12-CF113). The verbal plea agreement provided for an aggregate 9-year sentence, to be followed by
3 years of mandatory supervised release. (Doc. 1, pp. 17-20). The sentence included 2-1/2 years
on the drug offense, to be followed by 6-1/2 years for burglary, which was mandated to be served
consecutively. (Doc. 1, p. 18). Burnett was to receive credit for time spent in pretrial detention,
including a 412-day period when he was being held on the two pending charges simultaneously.
(Doc. 1, pp. 19, 27-28, 55; Doc. 7, p. 2). His disagreement with the amount of sentence credit
awarded prompted this Habeas Petition, filed pursuant to 28 U.S.C. § 2254.
Burnett claims that he was denied the benefit of his plea bargain because he should have
received pretrial credit for the 412 days against each of his consecutive sentences separately, which
would amount to two days of credit for each of those days spent in pretrial custody. Respondent

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has answered, arguing that the Petition is time-barred as to the judgment in the 2011 drug case,
and that the claim for double credit lacks merit. (Doc. 7). Burnett has replied. (Doc. 14).
RELEVANT FACTS AND PROCEDURAL HISTORY
Burnett represented himself in the plea discussions, after having discharged his public
defender. (Doc. 1, p. 16-26). Burnett agreed to a 9-year sentence “because that would put me at
doing 39 months instead of 45 months because I’m not going to get no good time[.]” (Doc. 1,
p. 17; see also Doc. 14, p. 1). The prosecutor explained to the court that Burnett would get 6-1/2
years on the burglary count, mandatorily consecutive to the 2-1/2 years for the drug count; three
other counts would be dismissed. “He does receive credit for time previously served on each of
the cases, and those dates are outlined in the orders, which I did provide to the defendant and
explain to him those days.” (Doc. 1, p. 18-19). After accepting the plea and imposing the agreedupon sentence, the court reiterated, “Those sentences will run consecutively. You’ll get credit for
time served.” (Doc. 1, p. 24). The judgment in the burglary case specified the dates for which
Burnett would receive credit as February 2 to March 14, 2012, and June 8, 2012 through his
transport to the Illinois Department of Corrections (“IDOC”) after the July 11, 2013 date of
judgment. (Doc. 1, p. 27). Similarly, the drug case judgment provided for credit from October 9 to
November 1, 2011, and from June 8, 2012 through transport to IDOC. (Doc. 1, 28).
Burnett was transported to IDOC on July 25, 2013. (Doc. 7, p. 2). In light of the dates
outlined in the two judgments, Burnett claims he should have been given credit for 435 pretrial
custody days on the drug sentence (11-CF-961) and 454 days on the burglary sentence (12-CF113). (Doc. 1, p. 55). Burnett and Respondent agree that 412 of the pretrial custody days
represented the simultaneous custody period from June 8, 2012 to July 25, 2013. (Doc. 1, p. 55;
Doc. 7, p. 2). While Burnett maintains he should get a separate 412 days’ credit against each

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individual sentence, the IDOC credited these 412 days only once against Burnett’s aggregate
sentence of 9 years.
Burnett did not appeal from the judgment in either case. He did, however, file two petitions
for state post-conviction relief. (Doc. 7, p. 2). His first post-conviction petition, filed July 11,
2014, 1 challenged only the burglary conviction and did not raise the matter of sentence credit.
(Doc. 8-1, pp. 1-11). It was dismissed by the trial court. (Doc. 8-1, p. 13). On appeal from that
dismissal, Burnett challenged the assessment of fines, some of which were vacated by the appellate
court. (Doc. 8-2). Rehearing was denied on February 3, 2017, and Burnett did not seek review by
the Illinois Supreme Court. (Doc. 8-2, p. 1; Doc. 7, p. 2).
Burnett filed the second state post-conviction petition on October 7, 2015, 2 this time raising
the benefit-of-the-bargain challenge to both judgments. (Doc. 15-1, pp. 26, 36-38). After a hearing,
the trial court granted the state’s motion to dismiss the petition on May 21, 2016. (Doc. 1, pp. 3443, 45). Burnett appealed, and the matter was still pending before the Illinois Appellate Court,
Third District (Nos. 3-16-0317, 3-16-0318, 3-16-0319), 3 at the time he filed the instant habeas
Petition. (Doc. 1, pp. 2, 48, 50, 52, 54). Neither party has notified the Court of any resolution to
the consolidated appeals, and the Court was unable to locate an order disposing of the matter.
According to Burnett’s own calculation, his release date from the 9-year sentence should
have been August 16, 2015, if he had been given the sentence credit he believed he was due.

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Burnett’s certificate of mailing demonstrates that he submitted the post-conviction petition to prison
officials for filing on July 11, 2014 (Doc. 8-1, p. 10). Under the “mailbox rule,” it is considered filed as of
that date. See Houston v. Lack, 487 U.S. 266 (1988); Edwards v. United States, 266 F.3d 756, 758 (7th Cir.
2001).
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October 7, 2015, is the date Burnett submitted the post-conviction petition for filing (Doc. 15-1, p. 31); it
was file-stamped by the Circuit Court on October 19, 2015.
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Burnett was assigned a distinct appeal number for each of his circuit court cases: No. 3-16-0317 for Circuit
Court No. 11-CF-961 (drug case); No. 3-16-0318 for No. 12-CF-113 (burglary case); and No. 3-16-0319
for No. 12-CF-509, a burglary case that was dismissed as part of the plea bargain. (Doc. 1, pp. 1, 48, 50,
52).

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(Doc. 1, p. 55). However, he notes that he “spent [his] parole time in prison,” Id., because he was
“violated at the door because of past convictions.” (Doc. 28, p. 1). Even so, he claims that he
should have completed his mandatory supervised release time by February 16, 2017. (Doc. 1,
p. 55). In his Reply, filed on July 12, 2017, Burnett stated that his release date had been set for
April 5, 2018. (Doc. 14, p. 4).
As of the date of this Order, Burnett remains incarcerated on unrelated convictions. 4
APPLICABLE LEGAL STANDARDS
1.

Substantive Law
This Habeas Petition is subject to the provisions of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”). “The Antiterrorism and Effective Death Penalty Act of 1996 modified a
federal habeas court’s role in reviewing state prisoner applications in order to prevent federal
habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible
under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).
Habeas is not merely another round of appellate review. 28 U.S.C. § 2254(d) restricts
habeas relief to cases where the state court determination “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established federal law, as determined by
the Supreme Court of the United States” or “a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”
A judgment is “contrary to” Supreme Court precedent if the state court “contradicts the
governing law set forth in [Supreme Court] cases.” Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir.
2012) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an

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According to the inmate search page of the IDOC website, Burnett’s sentences for Peoria Case Nos. 11CF-961 and 12-CF-113 have been discharged, but he is still serving 4-year sentences on Tazewell Case
Nos. 18-CF-242 and 18-CF-402. Https://www2.illinois.gov/idoc/Offender/
Pages/InmateSearch.aspx (last visited Oct. 21, 2019).

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“unreasonable application of” clearly established federal law if the state court “identifies the
correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of
the particular state prisoner’s case.” Coleman, 690 F.3d at 814 (quoting Williams, 529 U.S. at 407).
Federal habeas review serves as “a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal.” Harrington v.
Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979)
(Stevens, J., concurring)). The Supreme Court has repeatedly emphasized that the Section 2254(d)
standard “is intentionally ‘difficult to meet.’” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015)
(quoting White v. Woodall, 572 U.S. 415, 419 (2014), and Metrish v. Lancaster, 569 U.S. 351, 358
(2013)).
Even an incorrect or erroneous application of the federal precedent will not justify habeas
relief; rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner
must show that the state court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “A state court’s
decision is reasonable, even if incorrect in our independent judgment, so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.’” McDaniel v. Polley, 847 F.3d
887, 893 (7th Cir. 2017) (internal citations omitted). For habeas relief to be granted, the state
court’s application of federal precedent must have been “objectively unreasonable,” meaning
“something like lying well outside the boundaries of permissible differences of opinion.” Jackson
v. Frank, 348 F.3d 658, 662 (7th Cir. 2003) (internal citations omitted).
2.

Timeliness, Exhaustion and Procedural Default
28 U.S.C. § 2244 creates a one-year limitation period for filing a petition for writ of habeas

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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
post-conviction 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, 560 U.S. 631, 645 (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, 560 U.S. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
In addition to the requirement for timely filing under the AEDPA, a habeas petitioner must
clear two procedural hurdles before the Court may reach the merits of his habeas corpus petition:
exhaustion of remedies and procedural default. Bolton v. Akpore, 730 F.3d 685, 694-696 (7th Cir.
2013). Before seeking habeas relief, a petitioner is required to bring his claim(s) through “one
complete round of the State’s established appellate review process” because “the exhaustion
doctrine is designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the federal courts.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see also 28 U.S.C. § 2254(c). Under the Illinois two-tiered
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appeals process, petitioners such as Burnett must fully present their claims not only to an
intermediate appellate court, but also to the Illinois Supreme Court, which offers discretionary
review in cases such as this one. Id.
ANALYSIS
1.

Timeliness of Habeas Petition
Respondent argues that Burnett’s Petition is untimely as to the drug case (11-CF-961), but

did not raise a timeliness objection relating to the burglary case. (Doc. 7, pp. 3-4). Burnett says
that he “only found out [he] was not getting the benefit of [his] bargain with [the] State’s Attorney
when [he] file[d] [his] post conviction,” referring to the petition filed in October 2015 which is
still pending before the Illinois Appellate Court. (Doc. 1, p. 13).
The judgment in No. 11-CF-961 (as well as in No. 12-CF-113) became final on August 12,
2013, thirty days after its July 11, 2013 date. See Ill. Sup. Ct. R. 604(d); (Doc. 7, p. 3). Thereafter,
Burnett had one year (until August 12, 2014) to file for federal habeas corpus relief. 28 U.S.C.
§ 2244(d)(1)(A). As Respondent points out, Burnett never sought post-conviction relief on the
drug conviction before August 12, 2014. His July 2014 post-conviction petition challenged only
the burglary conviction, so it did not serve to toll the federal habeas filing deadline for the drug
sentence. Thus, the March 2017 Habeas Petition is over two years too late as it relates to the drug
sentence.
As to the burglary case (12-CF-113), Burnett’s July 11, 2014 post-conviction petition tolled
the one-year deadline. 28 U.S.C. § 2244(d)(2). At that point, he had 33 days remaining on his filing
deadline (counting from when the clock stopped on July 11, 2014, to the original expiration date
of August 12, 2014). The appeal of that post-conviction matter ended on February 3, 2017, when
the appellate court’s decision was issued, because Burnett did not seek further review. See

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Lawrence v. Florida, 549 U.S. 327, 332 (2007) (tolling under Section 2244(d)(2) ends when the
state court’s post-conviction review is complete and no longer “pending”). However, Burnett’s
second post-conviction petition of October 2015 continued the tolling of Burnett’s federal habeas
filing deadline as to the burglary conviction pursuant to 28 U.S.C. § 2244(d)(2). Only a “properly
filed” petition will suspend the habeas filing deadline, 28 U.S.C. § 2244(d)(2), and a state prisoner
may only file a second or successive post-conviction petition if leave of court is given. 725 ILCS
§ 5/122-1(f). On February 10, 2016, the circuit court ordered further proceedings on Burnett’s
post-conviction petition, appointed the public defender, and set a briefing schedule. (Doc. 15-1,
p. 85). This demonstrates that the October 2015 petition was “properly filed” and continued to toll
Burnett’s deadline to seek federal habeas relief as to his burglary conviction and sentence.
2.

Exhaustion
Burnett did not exhaust his benefit-of-the-bargain claim through all levels of the Illinois

state courts before filing this action, as his appeal of the October 2015 post-conviction petition was
still pending when he initiated this case. Furthermore, it appears that the Illinois Appellate Court,
Third District, has still not issued a ruling in Burnett’s appeal. Nonetheless, citing 28 U.S.C.
§ 2254(b)(2), Respondent correctly points out that this Court may deny the Petition on the merits
despite Burnett’s failure to exhaust the claim. Neither party has requested this Court to stay the
case pending a decision by the appellate court.
3.

Merits of Burnett’s Benefit-of-the-Bargain Claim
In order to prevail on this claim, Burnett must demonstrate that the state court’s disposition

of his post-conviction petition was “contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States” or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding.” 28 U.S.C. § 2254(d). Furthermore, the state court’s factual findings are presumed to
be correct, unless the habeas petitioner rebuts that presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1). A habeas court reviews, subject to AEDPA deference, the state court’s
“last reasoned opinion on the claim” raised in the habeas petition. Kimbrough v. Neal, - F.3d -,
2019 WL 5445310 at *2 (7th Cir Oct. 24, 2019) (citing Woolley v. Rednour, 702 F.3d 411, 421
(7th Cir. 2012)); Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006). In this case, that is the
circuit court’s order granting the state’s motion to dismiss Burnett’s October 2015 post-conviction
petition. (Doc. 1, p. 45).
A claim that a criminal defendant did not receive the benefit of the bargain made in his
guilty plea has its constitutional roots in the Supreme Court’s holding in Santobello v. New York,
404 U.S. 257, 262 (1971). Santobello states that under the due process clause, “when a plea rests
in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be
part of the inducement or consideration, such promise must be fulfilled.” Id.; see also People v.
Clark, 956 N.E.2d 1078, 1079 (Ill. App. 2011) (reducing sentence so that defendant would receive
the agreed “double” pretrial custody credit against his consecutive sentences according to the plea
terms as stated in open court).
In Burnett’s case, the state circuit court rejected his claim that because he was in pretrial
custody on both the drug and burglary cases at the same time, he was entitled to sentence credit
against each consecutive sentence – which would amount to double the number of days he actually
served in pretrial custody. (Doc. 1, p. 45). Under Illinois law, a defendant is ordinarily entitled to
only one day of sentence credit for each day spent in pretrial custody. People v. Latona, 703 N.E.2d
901, 907 (Ill. 1998). An exception to this rule exists when a specified amount of sentence credit is
clearly set forth as part of the plea agreement in open court. People v. McDermott, 12 N.E.3d 148

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(Ill. App. 2014) (finding that defendant was entitled to credit against each of two distinct sentences
for the same days in custody, based on the record showing that such credit was specifically
bargained-for in each case).
At the hearing on his post-conviction petition, Burnett testified about the plea negotiations:
[W]e was [sic] arguing back and forth over between nine years and 10 years. And
see, the whole time I was told that I would receive credit for time served on both
cases. So that – that wasn’t even part of even the negotiation after the fact, because
she [the prosecutor] said that that’s what I would receive on both cases. And she
even stipulated it in the plea agreement.
(Doc. 1, p. 38). The court then questioned Burnett’s attorney: “Meaning you agree that that was
not a bargained-for term and you should have said opposite of that to qualify under McDermott;
right, Mr. Snyder?” (Doc. 1, pp. 38-39), and continued:
THE COURT: He’s not claiming what McDermott says he has to claim to prevail.
He’s saying, No, it was not a bargained-for term. And I kind of a little bit side with
him on that misunderstanding, but that’s not McDermott. You didn’t understand it.
Maybe we didn’t explain it well or you didn’t understand it. Well, whoever’s fault
it is, that’s not the McDermott holding.
(Doc. 1, p. 39).
Burnett’s counsel did not concede the point and instead maintained that the petition had a
good-faith basis. The court continued, “I can see how he thought that. I agree with you a hundred
percent that that’s a normal thing to think. The question is, does the law allow me to give you what
you want?” (Doc. 1, p. 40). Burnett explained again:
[T]he negotiation was already taken care of as far as the days that I would receive.
The second part of the negotiation was the amount of time. She was wanting to give
me 10 years and I was wanting to take eight. . . . [W]hen I come [sic] into court I
told her I would take the nine and she agreed . . . but the days had already been
discussed and that was part of the agreement to even get me to consider pleading to
the burglary charge . . . . [S]he basically already told me she would give me those
days on both cases.
(Doc. 1, p. 40). The court took the matter under advisement.

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The circuit court’s written ruling found that the exception described in McDermott was
“inapplicable, in that this was not an essential bargained-for term.” (Doc. 1, p. 45). The court
continued, “Defendant failed to show that he is not receiving the benefit of the bargain for his
guilty plea.” Id.
The circuit court made a factual finding that the “essential bargained-for term[s]” of
Burnett’s plea agreement did not include a provision that he would receive 435 days of credit
against his drug sentence and another 454 days’ credit against his consecutive burglary sentence.
Such a factual finding by the state court is presumed to be correct. 28 U.S.C. § 2254(e)(1). This
presumption can only be overcome if the habeas petitioner produces clear and convincing evidence
to the contrary. Id. Burnett has not done so here.
Burnett points to his statement that he would agree to the 9-year sentence because that
would mean he would serve “39 months instead of 45 months at 10 years.” 5 (Doc. 14, p. 1; Doc. 1,
p. 17). He references the transcript of the plea/sentencing hearing where the prosecutor outlined
the agreement for the 9-year sentence, stating, “He does receive credit for time previously served
on each of the cases, and those dates are outlined in the orders[.]” (Doc. 14, p. 2; Doc. 1, p. 19).
The court adopted the plea agreement, stating that Burnett’s sentences “will run consecutively.
You’ll get credit for time served.” (Doc. 1, p. 24; Doc. 14, p. 2). Burnett argues that the court
“agreed to give me what the State’s Attorney Jodi Hoos said she would give me and explained to
me.” (Doc. 14, p. 2). He claims that the prosecutor promised him that he would get credit for his
pretrial custody as he outlines, 435 days against the 2-1/2 year sentence and 454 days against the
6-1/2 year term. But this purported agreement was never stated explicitly in open court, and indeed
Burnett testified at the post-conviction hearing that “the days had already been discussed,” before

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Burnett never explains how he arrived at the 39-month calculation, nor was there any elaboration in the
record.

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the plea was outlined to the court. In any event, the statements that he would “receive credit for
time previously served on each of the cases” and he would “get credit for time served” are too
ambiguous to support Burnett’s claimed understanding of the plea terms.
The case Burnett cites in support of his claim, People v. McDermott, is distinguishable, as
the circuit court found. In McDermott, the defendant was sentenced for several offenses in different
counties, with some sentences consecutive and others concurrent. The record relating to the
Champaign County case included the prosecutor’s statement of the terms of the plea agreement in
open court, specifying the defendant would receive 222 days’ sentence credit against a 5-year term;
and in McLean County, the written plea agreement was recited in open court, stating the defendant
would receive credit for 233 days served against another 5-year sentence. McDermott, 12 N.E.3d
148, 150-51 (Ill. App. 2014). The Illinois Appellate Court found that this record reflected that
McDermott failed to receive the benefit of his bargain when the IDOC refused to give him the
credits as specified. McDermott, 12 N.E.3d at 153-54.
In contrast to McDermott, neither Burnett, the prosecutor, nor the court ever stated on the
record at the plea/sentencing hearing that Burnett would get credit of 435 days against the drug
sentence and another 454 days against the consecutive burglary sentence. On this record, Burnett
fails to overcome the presumption that the court’s factual finding as to the terms of his plea
agreement was correct. See 28 U.S.C. § 2254(e)(1). Furthermore, this Court cannot say that the
circuit court’s decision was based on an unreasonable determination of the facts in light of the
evidence presented, or that the court’s decision amounted to an unreasonable application of
Santobello or was contrary to that precedent. See 28 U.S.C. § 2254(d).
For these reasons, Burnett is not entitled to habeas corpus relief. His Petition will be denied,
and this action shall be dismissed with prejudice.

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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, 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).
In order for a certificate of appealability to issue, Burnett must show that “reasonable
jurists” would find this Court’s “assessment of the constitutional claims debatable or wrong.” See
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Buck v. Davis, 137 S. Ct. 759, 773 (2017).
Here, no reasonable jurist would find it debatable whether this Court’s rulings were correct.
Accordingly, the Court denies a certificate of appealability.
Burnett may reapply for a certificate of appealability to the United States Court of Appeals,
Seventh Circuit. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1).
CONCLUSION
Burnett’s Petition for habeas corpus relief under 28 U.S.C. § 2254 (Doc. 1) is DENIED.
This action is DISMISSED with prejudice. All pending motions are DENIED as moot. The
Clerk of Court is DIRECTED to close this case and enter judgment accordingly.
If Burnett wishes to appeal the dismissal of this action, his notice of appeal must be filed
with this Court within 30 days of the entry of judgment. FED. R. APP. P. 4(a)(1(A). A motion for
leave to appeal in forma pauperis (“IFP”) must set forth the issues Burnett plans to present on
appeal. See FED. R. APP. P. 24(a)(1)(C). If Burnett does choose to appeal and is allowed to proceed
IFP, he will be liable for a portion of the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past six months) irrespective of the outcome
of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d

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724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to Federal
Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule
59(e) motion must be filed no more than twenty-eight (28) days after the entry of the judgment,
and this 28-day deadline cannot be extended. Other motions, including a Rule 60 motion for relief
from a final judgment, do not toll the deadline for an appeal.
IT IS SO ORDERED.
DATED: October 28, 2019

___________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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