Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Edmond E. Chang Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 0525 DATE January 30, 2012

CASE

TITLE

U.S. ex rel. Kenny Gilkey (#K-68971) v. Warden Anglin

DOCKET ENTRY TEXT:

Petitioner’s motion to proceed in forma pauperis [#3] is denied without prejudice as incomplete. Additionally,

Petitioner is ordered to file a brief that explains why his habeas petition should not be dismissed as time-barred. 

Failure to file the brief within 21 days of the date of this order will result in summary dismissal of this petition

for a writ of habeas corpus pursuant to Rule 4 of the Rules Governing Section 2254 Cases.

O [For further details see text below.] Docketing to mail notices.

STATEMENT

KennyGilkey, a state prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Petitioner challenges his 2000 Illinois state conviction for attempted first degree murder and aggravated

battery with a firearm on the grounds of prosecutorial misconduct, ineffective assistance of counsel, and a

constitutional challenge to the statutes governing his sentence.

The Clerk has accepted this pro se petition for docketing under Federal Rule of Civil Procedure 5(e), but

the petition does not comply with the applicable rules. An incarcerated person seeking leave to proceed in forma

pauperis must obtain a certificate from a prison official stating the amount of money the prisoner has on deposit

in his or her prison or jail trust fund account. See 28 U.S.C. § 1915(a)(2). Here, Petitioner’s in forma pauperis

petition is not certified, does not show Petitioner’s trust account balance, and is not accompanied by copies of

his prison trust fund ledgers. 

If Petitioner wants to proceed with this lawsuit, he must submit a certified in forma pauperis petition

showing his current trust account balance. The Clerk will mail Petitioner a form petition. Failure to submit the

in forma pauperis petition, or to pay the statutory filing fee of $5.00 required for habeas cases, within 21 days

of the date of this order will result in summary dismissal. See Brekke v. Morrow, 840 F.2d 4, 5 (7th Cir. 1988).

(CONTINUED)

AWL

Page 1 of 2
STATEMENT (continued)

Additionally, Petitioner is ordered to file a brief that explains why his petition for a writ of habeas corpus

should not be dismissed as untimely, even if he is granted in forma pauperisstatus or pays the filing fee. Under the

Antiterrorism and Effective Death Penalty Act of 1996, “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.” 28 U.S.C. §

2244(d)(1). The limitations period starts to run from the latest of the following: (1) the date on which the conviction

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, if the right has been newly

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 time period during which a properly filed application for State post-conviction or other

collateral review . . . is pending shall not count toward any period of limitation . . . .” 28 U.S.C. § 2244(d)(2). 

Here, the Illinois Supreme Court denied Petitioner’s request for direct review in 2003. Petitioner initiated

state collateral proceedings on May 16, 2003, which were ultimately denied and affirmed by the state supreme court

sometime in 2009. Thus, at the latest, even tolling the 1-year limitations period during the pendency of the state

post-conviction review, the limitations period has apparently expired because the habeas petition was mailed on

or around January 19, 2012, according to the post-mark on the envelope. See R. 1.

Accordingly, the petition appears to be time-barred, and Petitioner is ordered to show good cause in writing

why the petition should not be dismissed even if he was granted in forma pauperis status or he paid the filing fee.

Failure to file the explanation within 21 twenty-one days of the date of this order will result in summary dismissal

pursuant to Rule 4 of the Rules Governing Section 2254 Cases.

Page 2 of 2