Opinion
No. 99 C 8028
September 1, 2000.
MEMORANDUM OPINION AND ORDER
Kay C. Collins, a prisoner in the custody of the Warden of the Danville Correctional Center, was convicted in 1988 of attempted murder and robbery. On December 9, 1999, Collins filed a petition for habeas corpus relief. Respondent Michael v. Neal moves to dismiss the petition as untimely. As set forth below, the motion is granted.
The Antiterrorism and Effective Death Penalty Act of 1996 became effective on April 24, 1996, and imposed a one-year statute of limitations for habeas petitions. Specifically, 28 U.S.C. ¶ 2244(d) provides that the one-year period of limitation begins to run on 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 one-year period of limitations became effective on April 24, 1996, but under Lindh v. Murphy, 96 P.3d 856, 865-66 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997), there is a one-year grace period for state prisoners who bring habeas petitions to challenge judgments that "become final by the conclusion of direct review or the expiration of the time seeking such review." Such a prisoner may bring a habeas petition more than one year after the judgment became final, so long as the petition was filed by April 23, 1997.
Although other events may trigger a new period of limitations under § 2244(d) Petitioner does not argue that other such events are relevant here.
Petitioner Collins took a direct appeal from his conviction. The Illinois Supreme Court denied his petition for leave to appeal on April 5, 1995. Because Collins did not file a petition for certiorari in the United States Supreme Court, his case became final on July 6, 1995, 90 days after the Illinois Supreme Court order. Gonzalez v. DeTella, 6 F. Supp.2d 780, 781-82 (N.D.Ill. 1998). Under the Lindh grace period, Collins' habeas petition was due on or before April 24, 1997.
Since Lindh, the Seventh Circuit has expanded the AEDPA tolling provision with respect to "properly filed" pending state collateral litigation, holding that the one-year statute of limitations does not begin to run while a "properly filed" collateral action is pending. Gendron v. United States, 154 F.3d 672 (7th Cir. 1998). Respondent argues that this expanded period is not available to Petitioner Collins, however, because the Illinois trial court and appellate court both concluded that his November 1995 petition under the Illinois post conviction Hearing Act was itself untimely, because it was filed more than three years after his 1988 conviction. As several courts have concluded, an untimely post-conviction petition does not toll the statute of limitations for filing of a federal habeas petition. Most recently, our Court of Appeals so held in a case decided after completion of the briefing on this motion to dismiss. See Freeman v. Page, 208 F.3d 572 (7th Cir. 2000).
In late 1994, the statute of limitations for Illinois post-conviction petitions, 725 ILCS § 5/122-1(c) was shortened from ten years to three years, or six months after denial of the petition for leave to appeal to the Illinois Supreme Court, whichever is sooner. That time limit applies to Collins. See People v. Bates, 124 Ill.2d 81, 86, 529 N.E.2d 227, 228-29 (1988) (holding an earlier amendment to § 5/122-1 is retroactive). In his response to the motion to dismiss, Petitioner Collins concedes that the state courts found his post-conviction petition untimely. He argues, in effect, that the one-year time period set forth in AEDPA is subject to "equitable tolling," a doctrine courts have recognized may be available under "extraordinary circumstances." See United States v. Griffin, 58 F. Supp.2d 863, 868 (N.D. Ill. 1998). Collins points Out the shortened statute of limitations was adopted during the pendency of his direct appeal and that, because his attorney did not tell him about that new limitations period, he did not become aware of it until the petition was dismissed in late 1997. Respondent correctly observes, however, that Collins' ignorance of the change in the law does not constitute "extraordinary circumstances" sufficient to permit equitable tolling. A claim of excusable neglect or ignorance of the law is ordinarily not sufficient to warrant tolling. Griffin, 58 F. Supp. at 868; Posada v. Schomig, 64 F. Supp.2d 790, 796 (C.D. Ill. 1999).
Notably, the amendment to the statute of limitations was adopted in December 1994, but the Illinois General Assembly allowed persons affected by the change, such as Petitioner, six and a half months to file under the old law, a period of time that the Seventh Circuit has referred to as "ample maneuvering room." Freeman, 208 F.3d at 574. In any event, Collins' post-conviction petition, filed seven months after the Illinois Supreme Court denied his PLA on direct appeal, was untimely even under the old standard.
This court need not revisit the state court's decision with respect to the timeliness of Collins' post-conviction petition, however. As Freeman explains, the state courts' determinations on this issue are conclusive:
Whether a collateral attack is "properly filed" can be determined in a straightforward way by looking at how the state courts treated it. If they considered the claim on the merits, it was properly filed; if they dismissed it for procedural flaws such as untimeliness, then it was not properly filed.208 F.3d at 576.
Respondent's motion to dismiss (Doc. No. 11-1) is granted and this case is dismissed.