Foremin v. Gomez

• Decision Date: 01 July 2022
• Docket Number: 21 C 5895
• Parties: ROMAN FOREMIN (M44987), Petitioner, v. DAVID GOMEZ, Warden, Stateville Correctional Center, Respondent.
• Court: U.S. District Court — Northern District of Illinois

ROMAN FOREMIN (M44987), Petitioner,
v.
DAVID GOMEZ, Warden, Stateville Correctional Center, Respondent.

No. 21 C 5895

United States District Court, N.D. Illinois, Eastern Division

July 1, 2022

MEMORANDUM OPINION AND ORDER

SHARON JOHNSON COLEMAN, United States District Court Judge

Before the Court is pro se petitioner Roman Foremin's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court dismisses Foremin's petition as time-barred under 28 U.S.C. § 2244(d)(1) and declines to certify any issues for appeal under 28 U.S.C. § 2253(c)(2).

Background

When considering habeas petitions, federal courts presume that the factual findings made by the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Karr v. Sevier, 29 F.4th 873 (7th Cir. 2022). Where Foremin has not provided clear and convincing evidence to rebut this presumption, the following factual background is based on the Illinois Appellate Court's decision on post-conviction appeal.

On June 14, 2006, Foremin and his co-defendant approached two people sitting in a car and shot them. Foremin fled the scene and dropped the gun, but a police officer apprehended him. Foremin was arrested and then charged with multiple counts of attempted first degree murder, aggravated battery with a firearm, and aggravated discharge of a firearm. On May 9, 2014, Foremin pleaded guilty to one count of attempted murder and was sentenced to 31 years in prison. The

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other charges were dismissed. At his plea hearing, the trial court admonished Foremin about the charges against him, his right to a jury trial, the potential immigration consequences, the minimum and maximum sentences he faced, and his mandatory supervised release term. Foremin stipulated to the factual basis for his plea and the trial court found he had entered his guilty plea freely and voluntarily. Foremin did not file a motion to withdraw his guilty plea nor did he file a direct appeal to the Illinois Appellate Court.

On September 1, 2016, Foremin filed a motion to correct his mittimus arguing that he should be required to serve only 50% of his sentence because the trial court did not inform him that Illinois law required him to serve 85% of his sentence. On October 3, 2016, the trial court corrected the mittimus to reflect a Class X felony sentence, but did not amend the mittimus allowing Foremin to serve only 50% of his sentence.

On March 2, 2017, Foremin filed a post-conviction petition pursuant to the Illinois PostConviction Hearing Act, 725 ILCS 5/122-1, et seq., arguing: (1) his guilty plea was involuntary and his right to due process was violated because the trial court did not disclose he had to serve 85% of his sentence; and (2) the trial court erred by not ordering a presentence investigation report. The trial court dismissed Foremin's post-conviction petition on February 1, 2019, and the Illinois Appellate Court affirmed the trial court on December 22, 2020. On March 24, 2021, the Illinois Supreme Court denied Foremin's petition for leave to appeal.

Foremin's petition for a writ of habeas corpus was postmarked October 28, 2021. Construing his pro se filings liberally, Harris v. United States, 13 F.4th 623, 627 (7th Cir. 2021), Foremin brings the following habeas claims: (1) ineffective assistance of trial counsel for failing to inform him of the consequences of his guilty plea; (2) ineffective assistance of post-conviction appellate counsel; and (3) trial court error based on the court's failure to inform him of the

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consequences of his guilty plea. Respondent argues that Foremin's habeas petition is untimely under 28 U.S.C. § 2244(d)(1).

Legal Standard

“AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus.” Wall v. Kholi, 562 U.S. 545, 550, 131 S.Ct. 1278, 179 L.Ed. 252 (2011). The one-year period runs from the latest of four specified dates: (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; (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 habeas 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. 28 U.S.C. § 2244(d)(1)(A)-(D).

Discussion

As a starting point in determining whether Foremin's habeas petition is timely, the Court turns to the date upon which Foremin's conviction became final under 28 U.S.C. § 2244(d)(1)(A). A conviction becomes final upon “the conclusion of direct review or the expiration of...