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 553 DATE May 11, 2012

CASE TITLE Tykee Sole (K-63601) vs. Nedra Chandler

DOCKET ENTRY TEXT

As explained below, Petitioner’s petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 is dismissed

as untimely under 28 U.S.C. § 2244(d). See Rule 4 of the Rules Governing Section 2254 Cases. The Court

further denies a certificate of appealability. See 28 U.S.C. § 2253(c). If Petitioner seeks to appeal this

decision, he must seek a certificate of appealability from the U.S. Court of Appeals for the Seventh Circuit.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT

Petitioner Tykee Sole, a Dixon Correctional Center inmate, has responded to this Court’s order directing

him to show cause why his petition for habeas corpus should not be dismissed as time-barred. The petition’s own

allegations raised the question of untimeliness. Petitioner’s response confirms, in effect, that the petition is timebarred.

Petition filed his habeas petition in this court in January 2012. The judgment of his state-court conviction

was entered in May 2005. The state appellate court affirmed, and the Illinois Supreme Court denied his petition for

leave to appeal on November 29, 2007. Petitioner did not file a certiorari petition with the U.S. Supreme Court.

Accordingly, the date that Petitioner’s conviction became final on direct review is February 27, 2008, which is 90

days after the Illinois Supreme Court denied his petition for leave to appeal. See Martinez v. Jones, 556 F.3d 637,

638 (7th Cir. 2009) (per curiam) (for purposes of § 2244(d)(1)(A), a conviction becomes final when the time

expires for filing a petition for certiorari in the Supreme Court, which is 90 days); see also Jimenez v. Quarterman,

555 U.S. 113, 119-20 (2009).

Petitioner filed his state post-conviction petition on September 7, 2008, 6 months and 9 days from the date

his conviction became final by direct review. It is unclear whether his state post-conviction petition was timely

under state law. See Smith v. Battaglia, 415 F.3d 649, 653 (7th Cir. 2005) (the rejection by a state court of a postconviction petition as untimely and refusal to consider the merits of a late petition renders the post-conviction

petition not “properly filed” and does not toll the federal one-year limitations period). But no matter: even assuming

that the state post-conviction petition tolled the limitations period, see 28 U.S.C. § 2244(d)(2), the federal habeas

petition is still untimely because he waited too long to file after the state system was done with the post-conviction

petition. Specifically, once the state post-conviction petition was no longer pending (January 26, 2011, when the

Illinois Supreme Court denied petition for leave to appeal), Petitioner would have had a little less than 6 months

to file his federal habeas petition. (Unlike during direct review, tolling does not apply during state collateral review

for the 90-day certiorari-petition filing period. Lawrence v. Florida, 549 U.S. 327, 332-33 (2007)).

Instead of filing before the expiration of what remained on the 1-year clock, Petitioner instead waited until

mid-January 2012, almost 1 year after the January 26, 2011 conclusion ofstate collateral review. Petitioner explains

in his response to the show-cause order that he was unaware that he did not have a full year from the state supreme

12C553 Tykee Sole (K-63601) vs. Nedra Chandler Page 1 of 2
STATEMENT

court’s denial of leave to appeal. (R. 7, Pet.’s Resp. at 1.) He admits that “had he been armed with this knowledge[,

he] would have filed immediately []after the Jan. 26, 2011, decision by the Illinois Supreme Court.” (Id.) He

contends that he is a “neophyte” to legal procedures. (Id.) Unfortunately, however, run of the mill claims of

ignorance of the law do not warrant tolling. See Williams v. Sims, 390 F.3d 958, 963 (7th Cir. 2004) (“reasonable

mistakes of law are not a basis for equitable tolling”); U.S. ex rel. Rivera v. Trujillo, 2011 WL 1811578 at *4 (N.D.

Ill. May 12, 2011) (“unfamiliarity with the applicable legal rules and status as an inmate are not, by themselves,

enough to constitute an ‘extraordinary circumstance’” warranting equitable tolling); U.S. ex rel. Laughlin v. Gaetz,

2011 WL 336143, at *4 (N.D. Ill. Jan. 31, 2011) (“ignorance of the law or of the limitations period” is insufficient

to establish equitable tolling).

Petitioner explains that he was waiting for a state court opinion before filing his state post-conviction

petition and states that he was diligent in filing his state post-conviction petition, R. 7, Pet.’s Resp. at 2. But that

wait is not a valid basis for tolling (either tolling under the governing statute or equitable tolling) the 1-year

limitations period. Although Petitioner’s lack of understanding as to how to calculate the limitations period was

unfortunate, such a misunderstanding does not provide grounds to toll the period. (And Petitioner did have more

than 5 months to file the federal habeas petition after the denial of leave-to-appeal on state collateral review, yet did

not.) Accordingly, the instant petition is dismissed as untimely.

The Court also concludes that no reasonable jurist would debate the correctness of the dismissal of this case

as untimely. See Rule 11, Rules Governing Section 2254 Cases; 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S.

473, 484 (2000). The timing and tolling rules are clear, at least as applied to the facts of this case. Thus, the Court

will not issue a certificate of appealability.

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