Smith v. Battaglia, 03-2996.

• Decision Date: 13 July 2005
• Docket Number: No. 03-2996.,03-2996.
• Citation: 415 F.3d 649
• Parties: Jesse SMITH, Petitioner-Appellant, v. Deirdre BATTAGLIA,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee,
• Court: U.S. Court of Appeals — Seventh Circuit

415 F.3d 649

Jesse SMITH, Petitioner-Appellant, v. Deirdre BATTAGLIA,^* Respondent-Appellee,

No. 03-2996.

United States Court of Appeals, Seventh Circuit.

Argued October 5, 2004.

Decided July 13, 2005.

Michael J. Petro (argued), Chicago, IL, for Petitioner-Appellant.

Russell Kenneth Benton (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before POSNER, KANNE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Illinois inmate Jesse Smith has been pursuing a petition for a writ of habeas corpus under 28 U.S.C. § 2254, in the belief that his trial and appellate lawyers were ineffective in several ways. The district court dismissed the petition, however, on the ground that it was not filed within the one-year period provided by 28 U.S.C. § 2244(d). This conclusion followed from a statement by the Illinois Appellate Court that Smith's state post-conviction petition "may be considered untimely." This language falls short of being a clear and express ruling on the timeliness issue. We conclude, for this reason, that his federal habeas corpus petition was filed in time and that Smith is entitled to pursue it in the district court.

I

Smith found himself in Illinois's State-ville Correctional Center for his part in a shooting incident in February 1991. Three assailants, including Smith, fatally shot Charlotte Wilson and wounded Jerome Wilson and two onlookers. Smith and a co-defendant went to trial in a joint bench trial in August 1992. Smith was represented by Attorney Lawrence Vance. Vance began by telling the judge that the evidence would show that Smith was home on the evening in question with his female partner, who would be a witness in the case. This was the only defense Vance ever mentioned, but mysteriously, at the trial he did not call Smith's partner, Carol Brown, as an alibi witness, even though she was in the courtroom and ready to testify that Smith had been with her at all relevant times. Jerome Wilson did testify, and he identified Smith as one of the shooters. (Years later, in April 1999, Wilson recanted this testimony in a sworn affidavit, in which he averred that he "did see the person who shot Charlotte Wilson and myself on the night of February 1, 1991, and it absolutely was not Jesse Smith." Later, it seems, Wilson recanted the recantation, and so it is hard to say what story Wilson would give now.)

The court found Smith guilty of one count of first-degree murder, for which it sentenced him to an extended term of 80 years' imprisonment, and three counts of attempted first-degree murder, for which it imposed concurrent terms of 30 years each. The judgment of conviction was entered on December 14, 1992. Smith appealed, arguing only that the evidence did not show beyond a reasonable doubt that he was guilty and that his sentence was excessive. He was unsuccessful; the state appellate court rejected his arguments, see People v. Barnes and Smith, 1994 WL 16175575 (1994), and on October 4, 1995, the Illinois Supreme Court denied his petition for leave to appeal. He had until January 2, 1996, to file a petition for certiorari in the United States Supreme Court, but it appears that he did not do so.

Smith filed his pro se petition for state post-conviction relief, see 725 ILCS 5/122-1, on January 12, 1996, ten days after the time for seeking certiorari had expired. In it, he claimed, among other things, that he had been denied his Sixth Amendment right to the effective assistance of both trial and appellate counsel (different lawyers) with regard to his alibi defense. In March 1996, the state circuit court dismissed the petition. It first found that the petition was untimely under 725 ILCS 5/122-1(c). At that time, the statute read as follows:

No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court (or more than 45 days after the deadline for the filing of the defendant's brief with the Illinois Supreme Court if no brief is filed) or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.

(Emphasis added.)

In Smith's case, the earliest relevant date was three years from the date of his conviction, or December 14, 1995. Although the state post-conviction court appears to have relied on the version of 725 ILCS 5/122-1 that was in effect prior to January 1, 1996, that version required the court to choose the earliest of several dates, one of which was three years from the date of conviction.

Using the December 14, 1995, date, the court accordingly concluded that Smith's petition was filed almost a month late. Smith argued that this minor delay should be excused, because it was the result of a two-month lockdown at the penitentiary where he was housed rather than his negligence. The court was unpersuaded. It went on, however, to hold in the alternative that Smith had waived his claim of ineffective assistance of trial counsel because his appellate counsel failed to raise the point on appeal. It said nothing specific about appellate counsel's possible ineffectiveness for this oversight, but it finally examined the merits of the Sixth Amendment claims and held that neither one of Smith's lawyers had performed inadequately.

After Smith appealed the circuit court's order, his appointed counsel moved to withdraw, citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Smith objected, arguing that the circuit court had erred by finding that his lawyers were not ineffective. The appellate court granted counsel's motion, stating in relevant part:

The scope of post-conviction review is limited by the doctrines of res judicata and waiver which affect all claims actually presented in the direct appeal as well as those which could have been, but were not. Defendant's assertions of ineffective assistance of trial counsel and the trial court's prejudice are foreclosed under these principles, and defendant's remaining allegations were either refuted by the record or insufficient to require further proceedings under the Act. In addition, defendant's petition may be considered untimely under the amended statute, and the shortcomings of his post-conviction appellate counsel do not present a basis for granting the relief sought.

Illinois v. Smith, No. 91 CR 1754, slip op. at 3 (Ill.App.Ct. Nov. 14, 1996) (unpublished decision) (internal citations omitted). The Supreme Court of Illinois granted Smith's motion for leave to file a late appeal, but denied the petition for leave to appeal on October 1, 1997.

On August 28, 1998, Smith filed a pro se petition for a writ of habeas corpus in the federal court under 28 U.S.C. § 2254, again arguing that his trial and appellate counsel provided ineffective assistance. In an order dated August 11, 1999, Judge Bucklo held that Smith had raised these claims throughout his post-conviction proceedings and appointed a lawyer to represent him. The case was then administratively transferred to Judge Darrah, who granted his request for an evidentiary hearing in August 2001. At the hearing, Carol Brown (the partner) testified that Vance, Smith's trial attorney, told her that she did not need to testify even though she was present at the trial. Vance did not testify, but the parties stipulated that he would have said that he could not remember why he did not call Brown as a witness.

After the hearing, the state moved to dismiss Smith's petition as time-barred. The district court found that Smith's state post-conviction petition was indeed not properly filed because it was late, and thus that his § 2254 petition also came too late. It dismissed the petition in an order dated September 28, 2002. The court later granted Smith's request for a certificate of appealability, which included the antecedent procedural question whether the state post-conviction proceeding was untimely and the constitutional question whether Smith received effective assistance of trial and appellate counsel. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

II

As we have noted already, a state prisoner who seeks federal habeas corpus relief from a criminal conviction has in the first instance one year from the date when the conviction became final to file his petition. 28 U.S.C. § 2244(d)(1)(A). Smith's conviction became final on January 2, 1996, which was the time when his opportunity to file a petition for certiorari from the Illinois Supreme Court's decision denying leave to appeal expired. If Smith had never filed any post-conviction proceeding, his time for filing a § 2254 petition...