Gutierrez v. Schomig, No. 00-1384

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before Coffey, Kanne, and Diane P. Wood; KANNE
• Citation: 233 F.3d 490
• Parties: (7th Cir. 2000) AUGUSTINE GUTIERREZ, Petitioner-Appellant, v. JAMES M. SCHOMIG, Respondent-Appellee
• Docket Number: No. 00-1384
• Decision Date: 30 November 2000

Page 490

233 F.3d 490 (7th Cir. 2000) AUGUSTINE GUTIERREZ, Petitioner-Appellant,
v.
JAMES M. SCHOMIG, Respondent-Appellee. No. 00-1384 In the United States Court of Appeals For the Seventh Circuit Submitted September 28, 2000
Decided November 30, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 5392--Blanche M. Manning, Judge.

Before Coffey, Kanne, and Diane P. Wood, Circuit Judges.

KANNE, Circuit Judge.

Augustine Gutierrez seeks review of the district court's judgment dismissing his petition for a writ of habeas corpus as untimely under 28 U.S.C. sec. 2244(d). This appeal presents a statute of limitations issue that this court has yet to address whether the time during which a state prisoner can, but does not, file a petition for a writ of certiorari from the denial of his state post- conviction petition tolls the one-year statute of limitation under sec. 2244(d)(2). See Fernandez v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000) (reserving "the question whether time provided for filing a petition or appeal to a higher court is treated as time during which an application is pending, if the time expires without a filing"). We grant Gutierrez's request for a certificate of appealability to address this question. For the reasons that follow, however, we conclude that the one-year limitations period is not tolled during the time a state post-conviction petitioner could have filed, but did not file, a petition for certiorari review in the United States

Page 491

Supreme Court, and thus we affirm the district court judgment.

In August 1993, Gutierrez was convicted on two counts of first degree murder and sentenced to natural life in prison. On January 27, 1995, the Illinois Appellate Court affirmed his conviction. Gutierrez did not file a timely petition for leave to appeal to the Illinois Supreme Court. Instead, three and a half years later he sought leave to file a late appeal; his motion was denied. Thus, Gutierrez's conviction became final on January 27, 1995--before the Antiterrorism and Effective Death Penalty Act of 1996 injected a statute of limitations provision into the statutes governing collateral attacks.

Gutierrez filed a petition for state post- conviction review in October 1997. His petition was denied, the appellate court affirmed the denial of post-conviction relief, and, on December 2, 1998, the Illinois Supreme Court denied his timely petition for leave to appeal. Gutierrez had ninety days to appeal the Illinois Supreme Court's decision to the United States Supreme Court, but he did not do so. Instead, on August 12, 1999, Gutierrez filed a petition for a writ of habeas corpus in the federal district court.

Judge Manning dismissed Gutierrez's petition, concluding that it was untimely under 28 U.S.C. sec. 2244(d). She reasoned that Gutierrez's one- year clock began ticking on April 24, 1997, the day after the filing grace period for petitioners whose conviction became final pre-AEDPA,¹ see Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997); the clock stopped 188 days later, on October 29, 1997, when Gutierrez filed his state post-conviction petition; and it remained stopped while his state petition was pending in the state...