Jones v. Hulick

Decision Date01 June 2006
Docket NumberNo. 04-2759.,04-2759.
PartiesAdell JONES, Petitioner-Appellant, v. Don HULICK, Acting Warden,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Andrew E. Tauber (argued), Mayer, Brown, Rowe & Maw, Washington, DC, for Petitioner-Appellant.

Ira Kohlman (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before ROVNER, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge.

Adell Jones appeals from the dismissal of his petition for a writ of habeas corpus.

In 1999, Jones waived his right to a jury trial and, following a bench trial in the Circuit Court of Cook County, Illinois, was found guilty of first degree murder and aggravated vehicular hijacking. The trial court found Jones eligible for a death sentence but declined to impose it, opting instead for a sentence of life for the murder plus a concurrent term of 30 years for the hijacking.

The crime was gruesome and frighteningly random. The situation started innocently enough. At 4 a.m., Jones and a friend, in Jones's brother's car, followed two women into a gas station in an attempt to obtain their telephone numbers. Jones approached the women and apparently succeeded in obtaining a phone number. When he was returning to his brother's car, a woman (simply described as a "woman with blonde hair" by the Illinois Appellate Court) asked him to tell another man, who was at the station, to stop harassing her. Jones did, and the man drove off. Then Jones saw that someone was driving away in his brother's car. Jones and his friend then hijacked the blonde woman's van in order to pursue Jones's brother's car. The woman began screaming and struggling, at which point Jones hit her with his gun, which discharged and struck her in the face. The shot was not fatal. At some point, Jones stopped at a house to speak with his cousin. When he returned to the van, he placed the woman in a headlock and shot her several times in the head, killing her.

After exhausting his state court remedies, Jones filed the present petition for a writ of habeas corpus. He claimed, in abbreviated fashion, that his counsel was ineffective and that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States District Judge Ronald A. Guzman ordered Jones to file an amended § 2254 petition on the form required by the District Court for the Northern District of Illinois. Although Jones filed an amended petition on the form, he wrote "See original petition ...." on the part that asked about his issues and grounds for relief. This petition, too, was dismissed because it violated the order dismissing the first petition, in which the judge said that "grounds contained in the original petition will not be considered if they are not included in the amended petition." The judge also stated that Apprendi did not apply retroactively and could not be a basis for relief. Another amended petition and a motion for reconsideration were ultimately filed, but they were dismissed for essentially the same deficiencies noted the first time around. Jones appeals, and we granted a certificate of appealability on two issues.

(1) Whether the district court can rely on N.D. Ill. Local Rule 81.3 in dismissing his petition and deciding not to examine Jones's second claim. Specifically, whether the requirement in the rules governing § 2254 cases that the "petition must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule" means that prisoners must use the district court's forms and, if so, whether it is sufficient that the petition includes the information that would otherwise be written on the form.

(2) Whether Jones's sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The parties should address when Jones's sentence became final. See Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004) (a conviction becomes final when direct review to the state courts is exhausted and the time to file a petition for certiorari to the Supreme Court expires).

We then clarified the order, making clear that we intended to certify Jones's ineffective-assistance-of-counsel claim as well.

In its brief in this court, the State raises the issue of the timeliness of the petition. Jones has replied to that claim so we consider it first. Although the issue was not raised in the district court, we can affirm a district court's dismissal on any ground supported by the record, so we push ahead. U.S. ex rel. Lewis v. Lane, 822 F.2d 703 (7th Cir.1987). Tangentially related to our consideration of the issue is a recent Supreme Court decision in which the Court determined that even when the state has filed an answer which does not allege a statute-of-limitations defense (thus arguably waiving the defense), a district court has the discretion to dismiss a petition as untimely under AEDPA's one-year statute of limitations. Day v. McDonough, ___ U.S. ____, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). Under Day, a court dismissing a petition sua sponte must give the parties fair notice and an opportunity to present their positions.

In the case before us, the issue is not whether the defense can be raised sua sponte. The State has explicitly raised the issue. Jones has had an opportunity to respond, and we have listened to argument on the issue. Under these circumstances, the requirements for notice to Jones and an opportunity for him to present his position are satisfied.

But here the defense was raised for the first time on appeal. The question, then, is whether we can consider it in the first instance. In this case, we find that the practical considerations set out in Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), indicate that we can. Granberry dealt with the state's failure to raise the defense that petitioner had not exhausted his state court remedies. The Court declined to set out hard and fast rules about when the issue could be considered for the first time in the court of appeals, and rather set out a common sense, practical, and efficient approach. Using that approach, we note, first, that in Jones's case, the issue is not difficult. The facts are established. And the issue is, for the most part, legal. Finally, another significant factor is that the State raised the defense at its first realistic opportunity: the petition was dismissed in the district court prior to an answer being filed, the answer, of course, being the usual vehicle for raising the defense. Given this situation, we consider whether the statute of limitations has run.

The Antiterrorism and Effective Death Penalty Act (AEDPA) at § 2244(d) provides for a one-year period of limitation for applications for writs of habeas corpus. As relevant here, the date when the statute begins to run is set out in subsection (d)(1)(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." The time during which a petition for certiorari to the United States Supreme Court can be filed from a decision on direct review is not counted because a decision does not become final until the time for petitioning for certiorari has passed. Anderson v. Litscher, 281 F.3d 672 (7th Cir.2002). The Illinois Appellate Court affirmed Jones's conviction on May 10, 2001 (People v. Jones, 322 Ill.App.3d 675, 255 Ill.Dec. 539, 749 N.E.2d 1021 (2001)); the Illinois Supreme Court denied his petition for leave to appeal (PLA) on June 6, 2001. Jones's conviction became final on September 5, 2001, the day when his time to file a petition for certiorari to the United States Supreme Court expired.

Thirty-five days after September 5, 2001, Jones filed a postconviction motion. This act tolled the running of the AEDPA clock. Subsection (d)(2) states:

The 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.

This seemingly simple subsection has generated its share of litigation regarding when a petition is "pending."

Jones's motion for postconviction review was pending from the date it was filed, October 11, 2001, until the Illinois Supreme Court denied his petition for leave to appeal. That occurred on February 5, 2003. Jones argues that the time should also be tolled during the 90 days in which he could have petitioned—but did not—for certiorari to the United States Supreme Court. Aware that our case law goes against that position, Jones asks us to overrule our decision in Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000).

Gutierrez arose in the context of the denial of a postconviction motion by the Illinois state courts. The issue was, following the denial of the postconviction motion, whether the time during which a petitioner could, but did not, file a petition for certiorari with the United States Supreme Court was excluded from the limitations period. We said it was not.

We reaffirmed Gutierrez in Gildon v. Bowen, 384 F.3d 883 (7th Cir.2004). We returned to the issue because, after our decision in Gutierrez, the Supreme Court decided Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), which, it was argued, cast doubt on our position. Ultimately, we concluded that Clay did not cast doubt on Gutierrez. Clay was a petition brought under 28 U.S.C. § 2255, not § 2254. Furthermore, it involved the finality of a direct appeal, not whether a postconviction motion remained pending. In the present case, we decline to disturb Gutierrez and Gildon.

We are aware that the Supreme Court has recently granted certiorari in Lawrence v. Florida, ___ U.S. ____, 126 S.Ct. 1625, 164 L.Ed.2d 332 (2006) on the following question:

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