United States ex rel. Topps v. Chandler
| Decision Date | 26 March 2013 |
| Docket Number | 12 CV 3028 |
| Parties | United States of America ex rel. JEREMY TOPPS, Petitioner, v. NEDRA CHANDLER, Warden, Dixon Correctional Center, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Petitioner Jeremy Topps ("Topps") is incarcerated at Dixon Correctional Center in Dixon, Illinois, where he is in the custody of Nedra Chandler, ("Chandler"), the warden of that facility. Topps filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Chandler moves to dismiss the petition as untimely and for the reason that three of the four claims asserted in Topps's petition are not cognizable under 28 U.S.C. § 2254(a). For the reasons stated herein, Chandler's Motion to Dismiss is granted.
On January 9, 2003, following a bench trial in the Circuit Court of Cook County, Topps was convicted of aggravated battery with a firearm and aggravated discharge of a firearm. People v. Topps, No. 01 CR 31658 ). Topps was sentenced to fifteen years of imprisonment followed by three years of mandatory supervised release. (See id., p. B-18). Topps appealed and on November 22, 2004,the Illinois Appellate Court affirmed the trial court's judgment.1 People v. Topps, No. 1-03-2476 (Ill. App. Ct. 2004) (Ex. B, p. 8). Topps states that he filed a Petition for Leave to Appeal ("PLA") to the Illinois Supreme Court which denied Topps's petition without opinion on June 6, 2007. According to Chandler, Westlaw and records searches have revealed no such filing or order and a call to the Illinois Supreme Court Clerk's Office confirmed that Topps did not file a PLA to the Illinois Supreme Court on direct appeal.
On December 14, 2005, Topps filed a mandamus complaint in the Circuit Court of Cook County alleging that he was subject to deprivations of liberty and due process when the Clerk of the Circuit Court of Cook County and the Maywood Police Department refused a request under the Freedom of Information Act ("FOIA") for police reports and documents for his case. See Topps, No. 01 CR 31658 (Ex. C). Topps requested that the court order the Clerk's Office and Maywood Police to turn over the documents. See id. On January 10, 2006, the Circuit Court of Cook County dismissed the mandamus action for lack of jurisdiction. See id. (Ex. D). That judgment was affirmed by the Illinois Appellate Court on April 13, 2007. People v. Topps, No. 1-06-0371 (Ill. App. Ct. 2007) (Ex. E). The court explained that although Topps had served a FOIA request upon the Illinois State Police - which was granted - he had not served any FOIA requests upon either of the named respondents in the mandamus action, and thus the court lacked jurisdiction to grant relief. See id.
On December 5, 2007, Topps filed a post-conviction petition pursuant to 725 ILCS 5/122-1, et seq alleging prosecutorial misconduct and ineffective assistance of counsel (the "First Petition"). Topps, No. 01 CR 31658 (Ex. F). The court found that the issues raised in the petitionwere "frivolous" and "patently without merit" and summarily dismissed it. Topps, 01 CR 31658 (Ex. G, p. A-3). Topps appealed, and on October 23, 2009, the Illinois Appellate Court affirmed the lower court's judgment.2 People v. Topps, No. 1-08-0213 (Ill. App. Ct. 2009) (Ex. H, p. 8). The Illinois Supreme Court denied Topps's subsequent Petition for Leave to Appeal ("PLA") on March 24, 2010. People v. Topps, 930 N.E.2d 341 (Ill. 2010) (Ex. I).
On June 23, 2010, Topps filed a motion for leave to file a successive post-conviction petition (the "Successive Petition"). Topps, No. 01 CR 31658 (Ex. J). The Circuit Court of Cook County denied leave on the basis that Topps failed to meet Illinois's cause and prejudice standard for successive post-conviction petitions. Topps, No. 01 CR 31658 (Ex. K). The Illinois Appellate Court affirmed the dismissal of the Successive Petition on June 30, 2011. People v. Topps, No. 1-10-2176 (Ill. App. Ct. 2011) (Ex. L). Topps then filed a post-conviction PLA to the Illinois Supreme Court, which was denied on November 30, 2011. People v. Topps, No. 112812 (Ill. 2011) (Ex. M). Topps did not petition the United States Supreme Court for a writ of certiorari following his direct appeals or the denial of his post-conviction petitions.
Four months later, on April 24, 2012, Topps filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming: (1) the state courts erred in denying his motion for leave to file a successive post-conviction petition; (2) his appellate counsel on direct appeal was ineffective for moving to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967); (3) his successive post-conviction appellate counsel was ineffective for moving to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987); and (4) that the state court erred in its ruling on his original post-conviction petition.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that a one-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The statute begins to run from the latest of: (1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) 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; (3) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id. The AEDPA also provides that the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted toward the one-year limitation period. 28 U.S.C. § 2244(d)(2).
Topps was convicted on January 9, 2003 and sentenced on February 25, 2003. The Illinois Appellate Court affirmed his conviction on November 22, 2004. Although Topps claims to have filed a PLA to the Illinois Supreme Court after the Illinois Appellate Court's dismissal, the record before this Court does not support that such a petition was ever filed. Topps provides no document or record indicating he filed a PLA. Furthermore, Chandler indicates in his Motion to Dismiss that Westlaw and records searches have revealed no such filing or order, and that acall to the Illinois Supreme Court Clerk's Office confirmed that Topps has not filed a PLA to the Illinois Supreme Court on direct appeal. Topps was given an opportunity to dispute Chandler's position by filing a Reply brief and has not done so. Thus based upon the record before the Court, Topps's direct appeal proceedings came to a close upon the Illinois Appellate Court's affirmation of his conviction and sentence on November 22, 2004. From that date, Topps had twenty-one days to file a PLA or an affidavit of intent to file a PLA. Ill. Sup. Ct. R. 315(b) ().3 Because Topps did not file a PLA, his conviction became final upon the expiration of the twenty-one day period - on December 13, 2004. See, e.g., Del Valle v. Martin, No. 10 C 5745, 2012 WL 472921, at *3 n. 4 (N.D. Ill. Feb. 9, 2012) (); Jaynes v Hulick, No. 08 CV 3980, 2009 WL 2177242, at *2 n. 1 (N.D. Ill. July 21, 2009) (). Therefore, Pursuant to the one-year statute of limitations prescribed in § 2244, Topps had until December 13, 2005 to file a timely habeas petition asserting ineffective assistance of appellate counsel on direct appeal. Topps filed his petitionwith this Court on April 24, 2012, over six years after the limitations period expired on his claim for ineffective assistance of counsel on direct appeal.4
Additionally, Topps cannot claim the benefit of statutory tolling under 28 U.S.C. § 2244(d)(2) by having filed a mandamus complaint in the Circuit Court of Cook County on December 14, 2005. In order to toll the statute of limitations under § 2244(d)(2), a state court proceeding must (1) qualify as a "collateral review" proceeding and (2) be "properly filed." See Price v. Pierce, 617 F.3d 947, 950 (7th Cir. 2010); Martinez v. Jones, 556 F.3d 637, 638-39 (7th Cir. 2009). The United States Supreme Court has identified three kinds of actions that fall within "the established standards of collateral attack": (1) a claim that a proceeding violated a defendant's constitutional rights; (2) a claim that the imposed sentence fell outside statutory limits; and (3) a claim that "the proceeding was ... infected with [an] error of fact or law of the 'fundamental' character that renders the entire proceeding irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186 (1979); see also Price, 617 F.3d at 950 (...
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