Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Robert M. Dow, Jr. Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 4332 DATE 4/22/2013

CASE

TITLE

Hernandez vs. Hodge

DOCKET ENTRY TEXT

Before the Court are Petitioner’s motions for attorney assistance [19] and rehearing [25]. For the reasons stated

below, both motions are respectfully denied.

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

STATEMENT

Petitioner Rafael Hernandez pleaded guilty to one count of aggravated criminal sexual assault and was

sentenced to twelve years in Illinois state prison in late 2006. Nearly three years later, on August 24, 2009,

Petitioner filed a state postconviction petition concerning the term of mandatory supervised release (“MSR”)

to which he would be subject upon his release from incarceration. Petitioner pursued postconviction relief in

state court and ultimately sought a writ of certiorari from the United States Supreme Court after his efforts in

state court proved unsuccessful. The United States Supreme Court denied Petitioner’s petition for a writ of

certiorari on May 14, 2012. 

Shortly thereafter, on May 30, 2012, Petitioner filed in federal court a petition for a writ of habeas corpus [6].

He alleged that the state court judge failed to adequately admonish him regarding MSR, that the omission of

an MSR term from the judgment against him violated the separation of powers clause, that the MSR term is a

second sentence that placed him in double jeopardy, and that the MSR term violates due process. Respondent

Marc Hodge moved to dismiss the petition as untimely [8]. The Court granted the motion [16] and entered

judgment against Petitioner [17]. Petitioner then filed a notice of appeal [18] and sought counsel to assist him

with the appeal [19]. Petitioner also filed a motion for rehearing [25], in which he contends that he first

learned in May 2009 – from fellow inmates – that he would be subject to a term of MSR upon his release and

promptly thereafter commenced his state and then federal postconviction proceedings. He asserts that the

Court should have relied on 28 U.S.C. § 2244(d)(1)(D) rather than 28 U.S.C. § 2244(d)(1)(A) to determine

the start date of the one-year statute of limitations period. He requests that the Court deny Respondent’s

motion to dismiss and rule on the merits of his petition, grant him an evidentiary hearing, or issue him a

certificate of appealability. See [25] at 2. 

As a general rule, a district court is divested of jurisdiction over a case once a notice of appeal is filed. See

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982); Ameritech Corp. v. Int’l Bhd. of Elec.

Workers, Local 21, 543 F.3d 414, 418 (7th Cir. 2008). “This rule conserves judicial resources by preventing

overlapping and potentially inconsistent decisions; whipsawing litigants between two courts is just as

inconvenient for courts as it is for parties.” Ameritech Corp., 543 F.3d at 418. There are exceptions to the

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STATEMENT

rule, however, one of which is that “[d]istrict courts possess limited authority to deny Rule 60(b) motions

while an appeal is still pending, allowing the court of appeals to make its resolution final one, knowing that a

district court has no desire to amend its ruling.” Id. at 418-19. Petitioner does not specify the rule under which

he brings his motion for rehearing, but the Seventh Circuit has held that motions filed more than twenty-eight

days after entry of judgment are presumed to have been filed under Rule 60(b). See Hope v. United States, 43

F.3d 1140, 1143 (7th Cir. 1994) (applying the principle to the ten-day period set out in Rule 59(e) prior to

December 1, 2009); see also Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001).

Petitioner’s motion was filed more than twenty-eight days after entry of judgment; thus, the Court construes

the motion as one brought under Rule 60(b).

“Relief under Rule 60(b) is an extraordinary remedy that is to be granted only in exceptional circumstances.”

Provident Sav. Bank v. Popovich, 71 F.3d 696, 698 (7th Cir. 1995); see also Bakery Mach. & Fabrication,

Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009). A Rule 60(b) motion permits relief from

judgment when it is based on one of six specific grounds listed in the rule. Petitioner did not identify under

which ground(s) he seeks relief, but his contentions that Respondent’s “assertion that 28 U.S.C. §

2244(d)(1)(A) is applicable in this case is unsupported by the record, and, that the correct date to begin the (1)

year Statute of limitations is 2244(d)(1)(D)” suggest that the most relevant provisions are Rule 60(b)(1),

which allows for relief in instances of “mistake, inadvertence, surprise, or excusable neglect,” Rule 60(b)(3),

which “permits relief from a final judgment for reasons of fraud * * *, misrepresentation, or misconduct by an

opposing party, “ and Rule 60(b)(6), which is a catch-all provision that permits relief for “any other reason

that justifies” it. 

Relief is not warranted under any of these provisions. First, Petitioner has not demonstrated any

misrepresentation by Respondent the Court as to the contents of the record. The transcript of the plea hearing,

which Petitioner himself quotes several times in his motion for rehearing, indicates that Petitioner was

informed of at least the possibility that he would be subject to a term of MSR. The Court stands by its

previous conclusion that “[t]his contradicts Petitioner’s assertion that the factual basis for his claim was not

discoverable through the exercise of due diligence until some unknown point within a year before his

collateral attack.” [16] at 5. Regardless of the adequacy of the trial court’s admonition under People v.

Morris, 925 N.E.2d 1069 (Ill. 2010), and People v. Whitfield, 840 N.E.2d 658 (Ill. 2005), there is no

indication that Petitioner took any steps – or was precluded from taking any steps – to ascertain whether his

sentence included a term of MSR in a diligent fashion. “Section 2244(d)(1)(D) requires the petitioner to

exercise due diligence in uncovering the factual basis for his claims,” Daniels v. Uchtman, 421 F.3d 490, 492

(7th Cir. 2005), and Petitioner has not demonstrated that he exercised any diligence. 

Second, Petitioner has not demonstrated “any other reason” why the limitations clock should have been

stopped until May 2009, when he claims he “was informed by fellow inmates at W.I.C.C. that ALL sentences

* * * WERE followed by a term of MSR, to be served AFTER the term of imprisonment has expired.” [25] at

2. He has provided more details about the alleged belated discovery than he did in his original petition and

response to Respondent’s motion to dismiss, but it still is unclear why Petitioner was unable to discover this

information earlier, or why justice requires that the Court apply § 2244(d)(1)(D) rather than § 2244(d)(1)(A).

Petitioner has likewise failed to demonstrate that reasonable jurists would differ on whether his claims are

time-barred under § 2244(d)(1) such that a certificate of appealability is warranted. Nothing in Petitioner’s

application casts doubt on the Court’s prior conclusion that his claims are time-barred and that reasonable

jurists would not differ as to that conclusion. Accordingly, the Court respectfully denies Petitioner’s motion

for rehearing and request for a certificate of appealability [25].

12C4332 Hernandez vs. Hodge Page 2 of 3
STATEMENT

The Court also denies Petitioner’s motion for attorney assistance [19]. Petitioner's motion for appointment of

counsel would be more appropriately handled by the Seventh Circuit Court of Appeals, which will be

considering his appeal. In light of the fact that this Court does not have jurisdiction to consider the motion for

attorney assistance, the Court denies the motion [19] without prejudice and advises Petitioner that he may refile the motion in the Seventh Circuit Court of Appeals.

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