IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

United States of America ex rel.

 NELSON MUNOZ

 Petitioner,

 

 v.

RICHARD YOUNG, Warden,

 Western Illinois Correctional Center,

 Respondent.

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No. 12 C 3978

 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner Nelson Munoz (“Munoz”) filed a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254. Respondent Richard Young (“Young”), Warden of the Western Illinois

Correction Center, moves to dismiss the petition as untimely. For the reasons stated herein, Young’s

Motion to Dismiss is granted with prejudice.

BACKGROUND

On January 23, 1998, a Lake County jury convicted Munoz of first degree murder. The trial

court subsequently entered judgment and sentenced Munoz to a forty-six year prison term, and the

Illinois Appellate court affirmed the conviction and sentence on September 10, 1997. People v.

Munoz, No. 2-98-0287, (Ill. App. 2000). Following this ruling, Munoz filed a Petition for Leave to

Appeal (“PLA”) to the Illinois Supreme Court, which denied Munoz’s petition without opinion on

July 5, 2000. Munoz did not file a petition for writ of certiorari following the resolution of his direct

appeal. Instead, on June 9, 2008, Munoz filed a petition for post-conviction relief pursuant to 725

ILCS 5/122-1, et seq, alleging actual innocence and ineffective assistance of counsel. The Illinois

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state trial court denied the petition following an evidentiary hearing and the Illinois appellate court

affirmed on August 17, 2011. Munoz then filed a post-conviction PLA, which the Illinois Supreme

Court. The Illinois Supreme Court denied on November 30, 2011. Munoz did not petition the

United States Supreme Court for a writ of certiorari after the denial of his collateral attack on his

conviction. Six months later, on May 22, 2012, Munoz filed this petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Munoz alleges: (1) the Illinois Appellate Court applied the wrong

standard in analyzing the sufficiency of the evidence on direct appeal; (2) evidence developed in

postconviction proceedings overwhelmingly showed that he was actually innocent; and (3) his trial

counsel was ineffective for failing to investigate and call witnesses at his trial.

DISCUSSION

I. Timeliness of Petition

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides that a one-year

period of limitation shall apply to an application writ of habeas corpus brought 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 post2

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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). 

In this case, Munoz’s conviction became final on October 3, 2000, when the time to file a

petition for writ of certiorari with the United States Supreme Court expired. Jimenez v. Quarterman,

129 S.Ct. 681, 685 (2009); Anderson v. Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002) (conviction

becomes final under § 2244(d)(1)(A) when the time to file a petition for writ of certiorari expires). 

The statute of limitations period began running on October 4, 2011, and it continued to run until

Munoz filed his petition for post-conviction relief on July 9, 2008. Although the filing of his

petition would normally toll the statute of limitations pursuant to § 2244(d)(2), nearly eight years

of untolled time had already passed between the conclusion of Munoz’s direct review and the

beginning of his post-conviction proceedings in state court. See De Jesus v. Acevedo, 567 F.3d 941,

943 (7th Cir. 2009) (post-conviction petition merely excludes time from the tolling period; it does

not restart the period); Escamilla v. Jungwirth, 426 F.3d 868 (7th Cir. 2005) (finding that a state

collateral proceeding after one-year statute has expired does not have an effect under § 2244(d)(2)).

Because the statute of limitations for filing the petition now before the current expired during that

eight-year period, Munoz’s application for habeas relief under § 2254 is untimely.

II. Equitable Tolling

Munoz does not dispute, and thus concedes, that the statute of limitations began to accrue

the date judgment became final in his case. Notwithstanding his failure to timely file his petition,

however, Munoz asks the Court to apply the doctrine of equitable tolling to find his petition timely. 

The doctrine of equitable tolling is available to Munoz if he can show: “(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented

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him from timely filing. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010); Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005); Griffeth v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010). Munoz bears the

burden to show he is entitled to equitable tolling, DiGugliemo, 544 U.S. at 418, and the

circumstances alleged by Munoz must be truly extraordinary in order to warrant its application.

Tucker v. Kingston, 538 F.3d 732 (7th Cir. 2008) (holding that limited resources or lack of legal

expertise are insufficient to invoke equitable tolling; Jones v. Hulick, 449 F.3d 784, 789 (7th Cir.

2006) (refusing to apply equitable tolling when petitioner had been placed in segregation for sixty

days without access to the law library and as a result was twenty days late in filing his habeas

petition); see also Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003) (“[W]e have yet to identify

a circumstance that justifies equitable tolling in the collateral relief context.”)

Here, Munoz names three individuals – Kevin Anderson, RaShirely Santiago, and Milton

Munoz – who he now believes are relevant witnesses to his case. Munoz argues the statute of

limitations should be tolled because his failure to timely file was not caused by his neglect but rather

because he only recently became aware that these individuals were relevant to his case. Specifically,

Munoz states he did not know Kevin Anderson was a relevant witness until November 2007, that

he did not become familiar with RaShirely Santiago until after his post-conviction petition had

already been filed, and that he was unaware Milton Munoz was a relevant witness in his case until

Santiago testified at his postconviction proceedings.

Under § 2244(d)(1)(D), Munoz may claim the benefit of a later start to the statute of

limitations period only if he acted with due diligence in discovering the factual basis of his claim.

See Daniels, 421 F.3d 490, 492 (7th Cir. 2005); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)

(limitations period begins to run “when the factual predicate could have been discoverable through

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the exercise of due diligence, not when it was actually discovered by a given prisoner”). Here,

Munoz does not dispute that he knew all three “new” witnesses at the time of his trial. Kevin

Anderson went to school with Munoz for a number of years and was at the scene of the crime at the

same time as Munoz. The second witness, RaShirely Santiago, lived in Munoz’s neighborhood and

has known Munoz since 1997. (Dkt. No. 12-8, p. 92.) The testimony illicted at the post-conviction

hearing in state court also demonstrated that Santiago accompanied Munoz to the scene of the crime

just before the crime was committed. The third witness, Milton Munoz, is the petitioner’s brother.

In light of the fact that Munoz was aware of Anderson and Santiago and their presence at the

crime scene at the time of his trial, the Court finds that the facts underlying Munoz’s claims here in

federal court were discoverable through the exercise of reasonable diligence before Munoz’s

conviction became “final” under § 2244(d)(1)(A). Munoz’s failure to timely file his petition could

only be excused if “despite exercising reasonable diligence, [Munoz] could not have learned the

information he needed in order to file on time.” Hulick, 449 F.3d 784, 789 (7th Cir. 2006). In this

case, Munoz presents no facts explaining why he was unable to independently identify that a friend

he went to school with for years, an individual who accompanied him to the crime scene, and his

own brother were relevant witnesses before his post-conviction suppression hearings. Therefore,

the Court cannot conclude that Munoz has met his burden of demonstrating that he acted diligently

in discovering the factual basis for his claims. 

Even if the Court were to find that Munoz worked diligently to discover the factual basis for

his claims, Munoz still must point to “extraordinary circumstances” that prevented a timely filing. 

Munoz has not done so here. A petitioner’s failure to discover relevant witnesses might constitute

“excusable neglect,” which the Supreme Court has found insufficient to support an application of

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equitable tolling, Irwin v Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990), Munoz cites to no

authority supporting the proposition that such a failure amounts to an “extraordinary circumstance,”

especially in light of the fact that all three witnesses were known to him at the time of his trial. 

Equitable tolling requires truly extraordinary events. See, e.g., Corjasso v. Ayers, 278 F.3d 874, 878

(9th Cir. 2002) (allowing equitable tolling where court lost petitioner’s petition); Laws v. LaMarque,

351 F.3d 919, 923 (9th Cir. 2003) (same where petitioner’s competency was questionable at the time

the petition was due). Because Munoz has not met his burden of demonstrating extraordinary events

here, the statute of limitations period with respect to his § 2254 petition would not be subject to

equitable tolling even if he had shown that reasonable diligence in uncovering the factual bases for

his claims. 

III. Certificate of Appealability

Unless the Court issues a certificate of appealability, an appeal may not be taken to the court

of appeals from the final order in a habeas corpus proceeding in which the detention complained of

arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A). “Only if the applicant has

made a substantial showing of the denial of a constitutional right” can the Court issue the certificate. 

28 U.S.C. § 2253(c)(2). Where, as here, the Court dismisses a petition on procedural grounds, a

certificate of appealability “should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional right

and that reasonable jurists would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 485 (2000). “Where a plain procedural bar

is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could

not conclude either that the district court erred in dismissing the petition or that the petitioner should

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be allowed to proceed further.” Id. at 484. Here, it is indisputable that Munoz’s habeas petition is

time-barred. Therefore, no reasonable jurist could conclude that the Court has erred in dismissing

the petition. Accordingly, the Court denies Munoz a certificate of appealability.

CONCLUSION

For the reasons set forth above, the Court grants Young’s Motion to Dismiss Munoz’s

Petition for Writ of Habeas Corpus as time-barred pursuant to 28 U.S.C. §2244(d). The Court

dismisses Munoz’s petition with prejudice and denies Munoz a certificate of appealability.

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: 12/27/2012

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