Tate v. Pierson

• Decision Date: 30 October 2001
• Docket Number: No. 01 C 2275.,01 C 2275.
• Parties: Timothy TATE, Petitioner, v. Mark PIERSON, Respondent.
• Court: U.S. District Court — Northern District of Illinois

177 F.Supp.2d 792

Timothy TATE, Petitioner, v. Mark PIERSON, Respondent.

No. 01 C 2275.

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

October 30, 2001.

COPYRIGHT MATERIAL OMITTED

Timothy Tate, Galesburg, IL, pro se.

Kendall R. Mills, Chief, Criminal Appeals, Illinois Attorney General's Office, Chicago, IL, for respondent.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

In 1994, following a jury trial in the Circuit Court of Cook County, Illinois, Timothy Tate was found guilty of first degree murder. The murder occurred in July 1991, when Tate was 15 years old. Stanley Sellers, who had been with Tate and two others at the time of the murder, testified that Tate was the one who shot the victim. Tate was tried as an adult and sentenced to 39 years' incarceration. After exhausting his state court remedies, Tate, proceeding pro se, filed his present federal petition for a writ of habeas corpus. Respondent moves to dismiss on the ground that the petition is untimely.¹ See 28 U.S.C. § 2244(d).

Following his conviction and sentencing, Tate pursued a direct appeal before the Illinois Appellate Court. On direct appeal, Tate was represented by the Public Defender. He argued that the court should have given an accomplice witness instruction regarding Sellers' testimony and that the sentence was excessive in light of his age and background. On February 20, 1996, the Illinois Appellate Court affirmed the conviction and sentence.² Tate did not timely seek leave to appeal to the Illinois Supreme Court. Instead, more than three years later, on November 29, 1999, he moved to file a late petition for leave to appeal. On February 1, 2000, that motion was denied.

During the meantime, Tate was pursuing other avenues of relief. On May 4, 1995, while his direct appeal was still pending before the Illinois Appellate Court, Tate filed a pro se petition for post-conviction relief in the Circuit Court. In that petition, Tate raised issues concerning (a) trial counsel's alleged ineffective assistance in failing to present three witnesses who would have testified that Sellers admitted he was the one who actually shot the victim; (b) prosecutorial misconduct related to Sellers' testimony; and (c) failure of the court to disqualify a juror who lived near the shooting and did not want to participate in the case and related ineffective assistance of appellate counsel. An affidavit from Sellers was attached to the petition. On July 12, 1995, the trial court summarily dismissed the post-conviction petition on the grounds that it was without merit and frivolous.³

Tate was represented by the Public Defender on appeal, but the Public Defender moved to withdraw on the ground that there were no appealable issues. See generally Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Wilkinson v. Cowan, 231 F.3d 347 (7th Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 2549, 150 L.Ed.2d 716 (2001). In a two-page brief containing no elaboration, cf. Wilkinson, 231 F.3d at 349, the Public Defender moved to withdraw on the ground that "[t]he petition fails to allege any facts that give rise to a claim of constitutional deprivation. Mere conclusory allegations, unsupported by affidavits, are insufficient to warrant further proceedings." On May 7, 1996, stating that it had carefully reviewed the record and briefs, the Illinois Appellate Court granted the motion to withdraw and affirmed the dismissal of the petition.⁴ The Appellate Court expressly addressed the merits of the claims related to Sellers being the triggerman and concluded that there was not a reasonable probability of affecting the outcome. As to the other issues raised, it was summarily stated that they were "without merit." Tate did not petition the Illinois Supreme Court for leave to appeal.

On September 10, 1999, Tate, proceeding pro se, filed a second post-conviction petition.⁵ On September 23, 1999, the trial court denied the petition on the ground that second petitions are not permitted. Tate appealed and the Public Defender was again appointed to represent him. The Public Defender again moved to withdraw, stating the following:

It is clear that Tate's Petition is the "second" one recorded; it is not merely an amended version of the original. The Post Conviction Act contemplates the filing of only one Post Conviction Petition. People v. Caballero (1997), 179 Ill.2d 205, 227 Ill.Dec. 965, 688 N.E.2d 658. See also, People v. Flores (1992), 153 Ill.2d 264, 180 Ill.Dec. 1, 606 N.E.2d 1078, People v. Mackey (1992), 229 Ill. App.3d 784, 172 Ill.Dec. 70, 595 N.E.2d 133. Any claim of substantial denial of constitutional rights not raised in the original is waived. See People v. Free (1988), 122 Ill.2d 367, 522 N.E.2d 1184.

Counsel can find no manifest error in the judge's finding that the Petition being the "second" is barred by statute, and therefore seeks to withdraw. Pennsylvania v. Finley (1987), 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539.

On November 16, 2000, the Illinois Appellate Court granted the motion to withdraw and affirmed the denial of relief⁶ stating: "We have carefully reviewed the record in this case, defendant's responses and the aforesaid brief in compliance with the mandate of Pennsylvania v. Finley and find no issues of arguable merit. Therefore, the motion of the public defender for leave to withdraw as counsel is allowed and the judgment of the circuit court is affirmed." Tate III, at 3. Tate filed a pro se petition for leave to appeal to the Illinois Supreme Court which was denied on January 29, 2001.

On April 2, 2001, Tate filed his federal habeas corpus petition containing the following issues: (1) failure to give the accomplice witness instruction; (2) the excessive length of the sentence; (3) ineffective assistance of trial counsel in failing to interview and call the witnesses to whom Sellers had admitted being the triggerman; (4) prosecutorial misconduct in using perjured testimony and withholding evidence; (5) ineffective assistance of appellate counsel for not raising the juror issue on appeal; (6) ineffective assistance of trial counsel in failing to interview and call Timothy Monltson⁷ who could testify that the triggerman was not Tate; (7) refusal to grant trial counsel's motion to withdraw based on a conflict of interest; (8) ineffective assistance of trial counsel in failing to adequately prepare and present a motion to suppress Tate's confession based on alleged torture and coercion by police officers; (9) ineffective assistance of trial counsel in failing to interview and present witnesses to corroborate the alleged torture and coercion; (10) ineffective assistance of appellate counsel on direct appeal for failing to raise the ineffective assistance of trial counsel; and (11) denial of his first post-conviction petition having been incorrectly based on the assumption that he pleaded guilty.

Section 2244(d) of Title 28 provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —

(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, if the applicant was prevented from filing by such State action;

(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 collateral 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.

(2) 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.

On direct appeal, the Illinois Appellate Court's decision was entered on February 20, 1996. Tate had 21 days to either petition for leave to appeal to the Illinois Supreme Court or give notice of his intention to do so. See Ill. Sup.Ct. R. 315(b). Since he did neither within that time period, his direct appeal became final on March 12, 1996. See United States ex rel. Thomas v. Welborn, 2000 WL 1831548 *2 (N.D.Ill.Dec.13, 2000); United States ex rel. Villazana v. Page, 1999 WL 342384 *2 (N.D.Ill. May 11, 1999).⁸ However, the one-year limitation period of § 2244(d) did not go into effect until April 24, 1996. If not otherwise tolled, the one-year period would be measured from April 24, 1996, not March 12, 1996. Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir.2000); Villazana, 1999 WL 342384 at *2. The November 1999 motion to file a late petition for leave to appeal was denied and therefore could not extend the accrual date. See Fernandez, 227 F.3d at 979.⁹ As of March and April 1996, Tate's first post-conviction petition was already pending and therefore the one-year period for filing his federal petition was tolled. Instead, the one-year period of § 2244(d)(1)(A) began to run upon the May 7, 1996 affirmance of the denial of the first post-conviction petition.¹⁰ Thereafter, Tate had one year to file a federal habeas corpus petition, that is until May 7, 1997. No federal habeas corpus petition having been filed by that time, the time for seeking federal relief expired on that date unless the time period was further tolled or one of the other subdivisions of § 2244(d)(1) applies.

Tate contends that the 1999 filing of his second post-conviction petition tolled the federal limitation period from the state court affirmance on...