Price v. Pierce

• Decision Date: 13 August 2010
• Docket Number: No. 08-1401.,08-1401.
• Citation: 617 F.3d 947
• Parties: Joseph PRICE, Petitioner-Appellant,v.Guy PIERCE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

617 F.3d 947

Joseph PRICE, Petitioner-Appellant,v.Guy PIERCE, Respondent-Appellee.

No. 08-1401.

United States Court of Appeals Seventh Circuit.

Argued Feb. 22, 2010.

Decided Aug. 13, 2010.

COPYRIGHT MATERIAL OMITTED

Adam S. Nadelhaft, Attorney (argued), Winston & Strawn LLP, Washington, DC, for Petitioner-Appellant.

Michael M. Glick, Retha Stotts, Attorney (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before KANNE and WILLIAMS, Circuit Judges, and SPRINGMANN, District Judge.^*

KANNE, Circuit Judge.

While incarcerated for other crimes, Joseph Price was convicted in Illinois state court of three counts of aggravated sexual assault for beating and raping a fellow inmate. For these convictions he was sentenced to three consecutive 35-year terms of imprisonment. After bouncing around the Illinois court system for ten years on numerous appeals and motions, Price finally arrived in the federal courts by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court dismissed his petition as time barred, rejecting Price's argument that a motion under Illinois Statute 725 ILCS 5/116-3 was a collateral attack on the judgment against him that tolled the one-year statute of limitations for filing a habeas petition. We now affirm.

I. Background

In November 1995, while incarcerated at Dixon Correctional Center in Illinois, Price was charged with five counts of aggravated sexual assault of two fellow inmates. In April 1996, a jury found him guilty on the three counts related to one of the inmates, but not guilty on the other two counts related to the other inmate. The trial court sentenced Price to three consecutive 35-year terms of imprisonment. Price filed a motion to reconsider and for a new trial in October 1996. More than one year later, the trial court denied his motions. Almost two years after that, in October 1999, the Appellate Court of Illinois affirmed his convictions and sentence. Price then filed a petition for leave to file an appeal with the Supreme Court of Illinois, which that court denied on February 2, 2000. Price's window for filing a petition for a writ of certiorari closed 90 days later in May 2000. The one-year statute of limitations for filing a petition for a writ of habeas corpus expired one year later in May 2001-unless Price is correct that it was tolled.

Moving back in time, while Price's petition for leave to file an appeal was pending with the Supreme Court of Illinois, in November 1999 he filed a motion for forensic testing under 725 ILCS 5/116-3 (“DNA Motion”). One year later, the state trial court dismissed the DNA Motion as untimely. The Appellate Court of Illinois disagreed, and it reversed and remanded the case in 2003 with instructions to the trial court to determine the propriety of allowing three different DNA tests. In January 2005, the trial court issued an order denying the remanded DNA Motion on the merits. Almost eighteen months later, the Appellate Court of Illinois affirmed the trial court, and on September 27, 2006, the Supreme Court of Illinois denied Price's petition for leave to file an appeal. In May 2007-six years after the judgment against Price became final, but just eight months after his DNA Motion was finally settled-Price filed his pro se federal habeas petition, which the federal district court denied as untimely. The district court did, however, grant a certificate of appealability on the question of “whether the one-year limitations period imposed by 28 U.S.C. § 2244(d)(1)(A) was tolled under § 2244(d)(2) during the period of time in which petitioner's motion for forensic testing was pending in state court.” We now address that question.

II. Analysis

We review de novo the district court's dismissal of Price's habeas petition as untimely. Simms v. Acevedo, 595 F.3d 774, 777 (7th Cir.2010). In general, a prisoner may petition for a writ of habeas corpus only after exhausting all possible state remedies. 28 U.S.C. § 2254(b)(1)(A). The petition must be filed within one year after “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review ....” 28 U.S.C. § 2244(d)(1)(A). The one-year statute of limitations can be tolled, however, if the petitioner applies for “State post-conviction or other collateral review” of the judgment. Id. (d)(2). Price argues that his motion under Illinois Statute 725 ILCS 5/116-3 qualifies as “other collateral review.”

In United States v. Addonizio the Supreme Court identified three kinds of actions or claims that fell within “the established standards of collateral attack”: a claim that a proceeding violated defendant's constitutional rights, that the imposed sentence fell outside statutory limits, or that “the proceeding was ... infected with [an] error of fact or law of the ‘fundamental’ character that renders the entire proceeding irregular and invalid.” 442 U.S. 178, 186, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Price urges us to find that a motion under § 116-3 falls under the latter category-that is, that a motion under § 116-3 raises the question of a defendant's actual innocence, which is an error of “fundamental” character.

We have previously discussed the characteristics of a collateral review of a judgment, as distinct from a direct review. We explained that “[p]ost-conviction appeals ... provide an independent and civil inquiry into the validity of a conviction and sentence, and as such are generally limited to challenges to constitutional, jurisdictional, or other fundamental violations that occurred at trial.” Graham v. Borgen, 483 F.3d 475, 479 (7th Cir.2007). The federal habeas corpus statute is the “archetypical collateral review.” Id. at 479-80. In assessing whether a particular state procedure constitutes collateral review of the judgment, “we look to how a state procedure functions, rather than the particular name that it bears.” Id. at 479.

Section 116-3, titled “Motion for fingerprint, Integrated Ballistic Identification System, or forensic testing not available at trial regarding actual innocence,” provides in relevant part:

(a) A defendant may make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of fingerprint, Integrated Ballistic Identification System, or forensic DNA testing, including comparison analysis of genetic marker groupings of the evidence collected by criminal justice agencies pursuant to the alleged offense, to those of the defendant, to those of other forensic evidence, and to those maintained under subsection (f) of Section 5-4-3 of the Unified Code of Corrections, on evidence that was secured in relation to the trial which resulted in his or her conviction, and:

(1) was not subject to the testing which is now requested at the time of trial; or

(2) although previously subjected to testing, can be subjected to additional testing utilizing a method that was not scientifically available at the time of trial that provides a reasonable likelihood of more probative results. Reasonable notice of the motion shall be served upon the State.

(b) The defendant must present a prima facie case that:

(1) identity was the issue in the trial which resulted in his or her conviction; and

(2) the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.

(c) The trial court shall allow the testing under reasonable conditions designed to protect the State's interests in the integrity of the evidence and the testing process upon a determination that:

(1) the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence even though the results may not completely exonerate the defendant;

(2) the testing requested employs a scientific method generally accepted within the relevant scientific community.

Price urges us to find that a motion under this statute is a collateral attack on his conviction because the trial court, in deciding the DNA Motion, will have to determine that identity was at issue in his trial and that the evidence gleaned from the DNA test is “materially relevant” to his claim of innocence. (Appellee's Br. at 12-13.) Those determinations, so goes the argument, necessarily require the court to determine that there was a fundamental error of fact-that is, the defendant's innocence-and therefore a motion under § 116-3 should be considered a collateral review of the judgment.

This is the first occasion we have had to consider whether a motion seeking DNA testing under 725 ILCS 5/116-3 is a “collateral review” of a judgment. We naturally turn first to Illinois state courts to see whether Illinois construes a motion under § 116-3 as a collateral attack. Cf. Graham, 483 F.3d at 478 (“The Wisconsin courts' own interpretation of the statute is certainly a good place to begin to determine whether the review is direct or collateral.”). Price argues that in People v. LaPointe, the Supreme Court of Illinois determined that a motion under § 116-3 is a collateral attack. 227 Ill.2d 39, 316 Ill.Dec. 208, 879 N.E.2d 275 (2007). The court in LaPointe, while detailing the many legal actions the defendant had filed, said that the defendant “began filing a series of collateral challenges to the conviction.” Id. at 276. It went on to list and describe the procedural history behind a number of challenges, including a federal habeas corpus petition, a post-conviction petition in state court, and a claim of actual innocence. Id. At the tail end of this lengthy procedural history, the court noted that the defendant also filed a motion under § 116-3, arguing that a DNA test would prove his innocence. Id.

At first blush, Price's interpretation of LaPointe appears to be correct. But we are hesitant to read too much into what appears...