U.S. ex rel Cooks v. Cowan
| Decision Date | 24 August 2001 |
| Docket Number | No. 99 C 1368.,99 C 1368. |
| Citation | 158 F.Supp.2d 884 |
| Parties | UNITED STATES of America, ex rel. Rodney COOKS, Petitioner, v. Roger COWAN, Warden of Menard Correctional Center, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Rodney Cooks, Hill-HIL, Galesburg, IL, Pro se.
Anne Scullen Bagby, Illinois Attorney General's Office, Chicago, IL, for Warden of Hill Correctional Center, respondents.
Petitioner Rodney Cooks has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent1 has filed a motion to dismiss the petition as time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA"), 28 U.S.C. § 2244(d). For the reasons explained below, respondent's motion is denied.
Petitioner filed the instant petition on March 1, 1999. Under § 2244(d) of the AEDPA, petitioner had one year from the date on which the judgment against him became final by the conclusion of direct review, or the expiration of time for seeking such review, in which to file the instant petition. In order to determine whether petitioner met that deadline, the court must first determine when petitioner's one-year clock began ticking.
Petitioner was convicted of murder and attempted murder and sentenced to concurrent terms of 50 and 30 years imprisonment on December 15, 1993. Thereafter, petitioner appealed his conviction and sentence, and both were affirmed by the Illinois Appellate Court on September 3, 1996. See People v. Cooks, 282 Ill.App.3d 1100, 236 Ill.Dec. 449, 707 N.E.2d 294 (1st Dist.1996). Petitioner then sought leave to appeal to the Illinois Supreme Court, but his request was denied on December 4, 1996. See People v. Cooks, 169 Ill.2d 574, 221 Ill.Dec. 440, 675 N.E.2d 635 (1996). Following that date, petitioner had ninety days in which to file a petition for writ of certiorari in the United States Supreme Court. Because petitioner chose not to seek certiorari, his direct review in the instant case became final on March 4, 1997 (ninety days after December 4, 1996). See Boggan v. Chrans, 2000 U.S. Dist. LEXIS 17935, *6, 2000 WL 1810035, *2 (N.D.Ill. Dec.6, 2000) (); United States ex rel. Williams v. DeTella, 37 F.Supp.2d 1048, 1048 (N.D.Ill.1998) (same); United States ex rel. Gonzalez v. DeTella, 6 F.Supp.2d 780, 781-82 (N.D.Ill. 1998) (same), rev'd on other grounds, 202 F.3d 273 (7th Cir.1999).
Thus, petitioner's one-year clock began ticking on March 4, 1997, and was clearly out of time by March 1, 1999, when petitioner filed the instant petition. Under § 2244(d)(2) of the AEDPA, however, the court must exclude the time "during which a properly filed application for State post-conviction ... review ... is pending." Petitioner did file an application for post-conviction review in Illinois state court, which was pending from April 28, 1997, until March 12, 1999. Consequently, the question before the court is whether petitioner's Illinois post-conviction application was "properly filed"; if it was, the one year period under § 2244(d) is "tolled" for the duration of petitioner's state proceedings, making his federal habeas petition timely.
Petitioner's initial post-conviction application for relief was dismissed sua sponte by the Circuit Court of Cook County on June 20, 1997, less than two months after it was filed. In dismissing the petition, the circuit court acted within its authority under 725 ILCS § 5/122-2.1(a)(2), which allows the circuit court to dismiss post-conviction petitions that are "frivolous or ... patently without merit" within 90 days of their filing, by written order that specifies "the findings of fact and conclusions of law it made in reaching its decision." In its Order, the circuit court addressed the timeliness of petitioner's application pursuant to 725 ILCS § 5/122-1, noting that effective January 1, 1996, that section read:
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 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.2
Under § 5/122-1, the circuit court concluded, petitioner should have filed his post-conviction petition by December 15, 1996, three years from the date of his conviction. Instead, petitioner did not file his post-conviction petition until April 28, 1997, "over four months beyond the statutory period." People v. Cooks, No. 92-CR-25255, slip op. at 9 (June 20, 1997). The circuit court further noted that petitioner "failed to allege any facts showing that his delay in filing the petition was not due to his culpable negligence." Id. Based on all this, the circuit court found petitioner's application time-barred.3 Id.
In addition to this finding, the circuit court went on to thoroughly address each of petitioner's arguments in his post-conviction application for relief. Id. at 9-13. For example, the circuit court addressed petitioner's claims of ineffective assistance of trial counsel and found them to be "without merit," lacking in support, and "groundless" based on the trial record. Id. at 10-12. The circuit court also found petitioner's ineffective assistance of pretrial counsel claim to be "without merit." Id. at 13. Consequently, the circuit court concluded that petitioner's claims are "frivolous and patently without merit."4 Id.
Petitioner appealed the circuit court's judgment and was represented in his appeal by a public defender from Cook County. Petitioner's counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), however. The motion seeks leave to withdraw on the following bases:
The petition was not timely filed (3 years from the date of sentence or 6 months from the end of direct appeal, whichever is sooner). Moreover, the petition does not set forth the gist of a constitutional claim. See People v. Mendez, 221 Ill.App.3d 868, 873, 164 Ill.Dec. 321, 582 N.E.2d 1265 (1991). Therefore, there are no appealable issues in the case. See Pennsylvania v. Finley, 481, U.S. 551 (1987). (Emphasis in original.)
On March 12, 1999, the Illinois appellate court issued an Order granting the public defender's motion to withdraw and affirming the dismissal of petitioner's post-conviction petition. The Order states:
Defendant Rodney Cooks appeals from the summary dismissal of his pro se post-conviction petition, which sought to overturn his convictions for first degree murder and attempted murder, for which he received concurrent prison terms of 50 years and 30 years, respectively. These convictions and sentences were affirmed on direct appeal. People v. Cooks, 282 Ill.App.3d 1100, 236 Ill. Dec. 449, 707 N.E.2d 294 (1996) (unpublished order under Supreme Court Rule 23). The public defender of Cook County, who represents defendant on appeal, has filed a motion for leave to withdraw as appellate counsel. A brief in support of the motion has been submitted pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), in which counsel states that there are no appealable issues in the case. We have carefully reviewed the record in this case 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 of Cook County is affirmed.
Returning to the question of whether petitioner's post-conviction petition was "properly filed," respondent argues that untimely post-conviction petitions do not fit within the definition of "properly filed" petitions, as least as far as the Seventh Circuit has interpreted that term. To support this argument, respondent cites Freeman v. Page, 208 F.3d 572, 576 (7th Cir. 2000), and quotes the test set forth therein:
Whether a collateral attack is "properly filed" can be determined in a straightforward way by looking at how the state courts treated it. If they considered the claim on the merits, it was properly filed; if they dismissed it for procedural flaws such as untimeliness, then it was not properly filed.
Unfortunately, the determination required in the instant case cannot be reached simply by applying the Freeman test. As set forth above, both the circuit court and appellate court considered and commented on the merits of petitioner's post-conviction application, indicating under Freeman that it was indeed properly filed. On the other hand, the Illinois circuit court also dismissed petitioner's application as untimely, and the appellate court affirmed that dismissal, arguably supporting respondent's conclusion that petitioner's application was therefore not properly filed under Freeman. Thus, applying Freeman's objective test does not lead to a dispositive result in the instant case. There is also an important distinction between the facts in Freeman and those presented in the instant case. As the Seventh Circuit noted, the district judge in Freeman held that the petitioner's application was not properly filed in that case, "because the state court judges did not address Freeman's petition on the merits, but instead dismissed it as untimely under Illinois law." Freeman, 208 F.3d at 574. Conversely, in the instant case both of the Illinois state courts that reviewed petitioner's post-conviction application addressed its...
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