U.S. ex rel. Morgan v. Gilmore, 97 C 4771.

• Decision Date: 29 June 1998
• Docket Number: No. 97 C 4771.,97 C 4771.
• Citation: 26 F.Supp.2d 1035
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES EX REL. Derrick MORGAN, Petitioner, v. Jerry GILMORE, Respondent.

26 F.Supp.2d 1035

UNITED STATES EX REL. Derrick MORGAN, Petitioner, v. Jerry GILMORE, Respondent.

No. 97 C 4771.

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

June 29, 1998.

Derrick Morgan, Menard, IL, pro se.

Catherine F. Glenn, Stephen F. Potts, Illinois Atty. General's Office, Chicago, IL, for respondent.

MEMORANDUM OPINION AND ORDER

MANNING, District Judge.

Petitioner Derrick Morgan has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Jerry Gilmore seeks to dismiss Morgan's § 2254 petition, contending that it is untimely because the tolling provisions in 28 U.S.C. § 2254(d) do not apply to the time during which a state post-conviction proceeding is on appeal to the Illinois Appellate Court or the Illinois Supreme Court.¹ For the reasons discussed below, the court finds that Morgan's petition is not time-barred, and orders the respondent to file an answer to Morgan's petition by July 24, 1998.

Background

The fate of Morgan's § 2254 petition turns on whether certain state post-conviction filings tolled the one-year time period in which he could file a request for relief under § 2254. See 28 U.S.C. § 2244(d)(1)(A). For the purposes of this inquiry, the relevant factual background thus consists of a number of dates. The deadline for filing a petition for leave to appeal in Morgan's direct appeal was July 11, 1995. Eight days later, the clock stopped on July 19, 1995 when Morgan filed a state post-conviction petition (Morgan filed an identical petition on July 25, 1995, which did not affect the tolling of the limitations period). The state court denied the post-conviction petitions on September 15, 1995.

On September 18, 1995, Morgan filed his notice of appeal with the Illinois Appellate Court. The appellate court affirmed the denial of collateral relief on June 11, 1996. On January 9, 1997, Morgan filed a motion seeking leave to file a late petition for leave to appeal to the Illinois Supreme Court. The record does not contain an order from the Illinois Supreme Court addressing this motion. The Illinois Supreme Court appears to have granted this request, however, as Morgan filed a petition for leave to appeal with the Illinois Supreme Court on April 3, 1997, which was denied on June 4, 1997.

Morgan filed another state post-conviction petition on November 14, 1995, which was dismissed on January 26, 1996 as "frivolous and patently without merit." Morgan filed a notice of appeal with the Illinois Appellate Court on February 13, 1996. The appellate court affirmed the dismissal of Morgan's petition on July 30, 1996, finding that it was procedurally barred. Nevertheless, the appellate court reached the merits of Morgan's arguments in the alternative. Morgan did not file a petition for leave to appeal with the Illinois Supreme Court.

On July 3, 1997, the clerk of this court received Morgan's § 2254 petition and a motion for leave to proceed in forma pauperis. The court granted Morgan's motion for leave to proceed in forma pauperis on July 11, 1997.

The respondent contends that the one year limitations period began to run on September 15, 1995 (when the state court denied Morgan's first two post-conviction petitions), arguing that § 2244(d)(2) only tolls the time during which the trial court is considering a post-conviction petition. Based on this interpretation of § 2244(d)(2), the respondent argues that Morgan's petition is time-barred because the time during which appeals from the denial of post-conviction relief are pending does not toll the one year limitations period.²

Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. 104-132, 100 Stat. 1214, applies to this case because Morgan filed his § 2254 petition after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, ___, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). With limited exceptions, a prisoner seeking a writ of habeas corpus must submit his petition no more than one year after the judgment against him becomes final. See 28 U.S.C. § 2244(d), as amended by the AEDPA. The parameters of the one-year filing rule are important in this case because Morgan filed his § 2254 petition with this court after the one-year grace period recognized by the Supreme Court in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Section 2244(d) provides, in pertinent part, that:

(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 postconviction 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.

Did Morgan's State Court Appeals Toll the Limitations Period?

The respondent contends that the time spent pursuing unsuccessful state court appeals should not toll the limitations period and urges the court to start the one-year clock as of the date that the state trial court renders a decision. This argument is patently meritless. Principles of comity require this court to afford the state courts an opportunity to consider a petitioner's claims before the petitioner presents those claims to this court. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

This court also declines to adopt an interpretation of the AEDPA that would require a petitioner to file a § 2254 petition before he exhausted his state remedies. See U.S. ex rel. Vaughn v. McVicar, No. 97 C 4197, 1998 WL 26162 *2 (N.D.Ill. Jan. 21, 1998) (limitations period begins to run when the petitioner finished or could no longer pursue his petition for post-conviction relief); Cox v. Angelone, No. Civ. A 3:97CV925, 997 F.Supp. 740, 742, 1998 WL 116266 (E.D.Va.1998), quoting Valentine v. Senkowski, 966 F.Supp. 239, 241 (S.D.N.Y.1997) ("It is clear both from the plain meaning of the statute and the legislative history of the Act which imposed the new standard ... that the 1-year period of limitations does not begin to run until after direct review has been completed and state post-conviction review has been exhausted.")

Accordingly, the court finds that time spent pursuing state court appeals is within the ambit of § 2244(d)(2)'s tolling provision. The court's consideration of § 2244(d)(2), however, does not end with the respondent's tolling argument. Morgan's § 2254 petition raises two additional questions about the scope of § 2244(d)(2): (1) does an untimely petition for leave to appeal toll the one year limitations period; and (2) should the court determine whether a second or successive state post-conviction petition is frivolous when deciding whether that petition tolls the limitations period? For the reasons below, the court finds that the answer to both questions is no. In light of the timing of Morgan's state court post-conviction petitions, this means that his § 2254 petition is timely.

Did Morgan's First Petitions Toll the Limitations Period?

The court first considers Morgan's original two state post-conviction petitions. The Illinois Appellate Court denied these petitions on June 11, 1996. Twenty-one days thereafter - Tuesday, July 2, 1996 — Morgan's petition for leave to appeal was due. ILCS S.Ct. Rule 315(b).³ On January 9, 1997, well after the twenty-one day appeal period had passed, Morgan sought permission to file a late petition for leave to appeal pursuant to Illinois Supreme Court Rule 315(b), explaining that his correctional facility had been on lock-down. As previously noted, Morgan appears to have received permission to file an untimely petition for leave to appeal.

Importantly, however, 28 U.S.C. § 2244(d)(2) only tolls the AEDPA's one year limitations period for "the time during which a properly filed application" for state post-conviction relief is pending. "[A] `properly filed application' is one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 147 (3d Cir.1998). Here, Morgan clearly did not submit his petition for leave to appeal within the twenty-one day time limit prescribed by the Illinois Supreme Court Rule 315(b). Thus, his petition for leave to appeal was not "properly filed" under § 2244(d)(2).

The fact that the Illinois Supreme Court Rules permit the filing of requests for an extension of the appeal period does not alter this conclusion. See ILCS S.Ct. Rule 606(c).⁴ It is true that this rule provides that motions for leave to file an untimely petition for leave to appeal will be entertained. However, this does not transform Morgan's April 3, 1997 petition for leave to appeal into a "properly filed" application for state post-conviction relief. If so, habeas petitioners would be able to obtain extensions of the limitations period simply by filing, at their discretion, motions for leave to file a late petition for leave to appeal. Cf. Freeman v. Page, No. 97 C 4705, 1998 WL 171822 *3 (N.D.Ill. Apr. 10, 1998) (motion for leave to file a late notice of appeal did not extend the limitations...