IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.)

RONALD McCLAIN #K-80999, )

)

Petitioner, )

)

v. ) No. 12 C 2274

)

ACTING WARDEN GLEN AUSTIN, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

This Court has had assigned to its calendar the newly-filed

28 U.S.C. §2254 Petition for Writ of Habeas Corpus (“Petition”) 1

in which petitioner Ronald McClain (“McClain”) seeks to attack

his January 31, 2003 state court conviction on a charge of

aggravated arson, on which he is serving a 12 year sentence. As

called for by Rule 4 of the Rules Governing Section 2254 Cases in

the United States District Courts (“Section 2254 Rules”), this

Court has promptly reviewed the Petition--a review that quite

understandably, given the age of McClain’s conviction, has

focused in the first instance on the issue of the Petition’s

timeliness. This memorandum opinion and order explains why

untimeliness in fact calls for the dismissal of the Petition out

of hand.

First, however, something should be said about McClain’s In

Forma Pauperis Application (“Application”), which he has prepared

 Further citations to provisions of Title 28 will simply 1

take the form “Section --”.
on the form provided by this District Court’s Clerk’s Office for

use by plaintiffs seeking to be excused from payment of the

filing fee. It seems clear that McClain (like many persons who

seek federal habeas relief) is unaware that the filing fee

required in such cases is only $5, rather than the $350 filing

fee that attaches to most federal lawsuits. Although the

printout of McClain’s trust fund account at Jacksonville

Correctional Center, where he is serving his sentence, shows

virtually no balance as of the time it was prepared, the printout

also reflects McClain’s monthly receipt of a modest payroll sum

as well as substantial periodic deposits to his account from

someone named Donna Harris. Under those circumstances the

Application is denied, and McClain is ordered to pay the $5

filing fee on or before April 30, 2012.

As for the Petition itself, it sets out numerous relevant

dates, including these:

1. Direct review of McClain’s conviction carried

through to the May 25, 2005 date when the Illinois Supreme

Court denied his petition for leave to appeal from the

adverse ruling of the Illinois Appellate Court for the Third

District (Petition Pt. I ¶4). For purposes of determining

timeliness, another 90 days are added to that date to

reflect the period permissible for seeking a writ of

certiorari before the United States Supreme Court, even

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though McClain did not in fact do so. That makes August 23,

2005 the relevant date.

2. On January 13, 2005 McClain filed his first

petition for state post-conviction relief (Petition Pt. II

¶1.B). That effort came to an end with the Illinois Supreme

Court’s September 27, 2006 denial of McClain’s petition for

leave to appeal from the May 24, 2006 adverse ruling of the

Illinois Appellate Court.2

3. Although McClain then sought to file a second

petition for post-conviction relief in the state court

system, he did not do so until April 27, 2007 (Petition

Pt. II(2d) ¶1.B). Most importantly (as will be explained

later), McClain has failed to disclose a critical fact as to

that putative second petition. In the Appellate Court’s

December 19, 2011 order dealing with the appeal from

McClain’s third petition for post-conviction relief

 Petition Pt. II ¶1.H mistakenly lists June 10, 2005 as 2

the date of the Appellate Court’s affirmance of the lower court’s

dismissal of McClain’s first post-conviction petition, while

Petition Pt. II ¶1.I leaves the date of the Illinois Supreme

Court’s denial blank. This Court’s able law clerk researched

those matters and located the tabular listing of each disposition

(365 Ill.App.3d 1119, 927 N.E.2d 341 as to the Appellate Court

and 221 Ill.2d 659, 857 N.E.2d 679 as to the Supreme Court), then

tracked down the court orders themselves. Although the ensuing

textual analysis here shows that those dates have no bearing on

the outcome, they do explain what would otherwise (if McClain had

been correct) reflect an extraordinarily lengthy gap between the

Appellate Court’s decision and the Supreme Court’s denial of

leave to appeal.

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hereafter referred to in paragraph 4 (Appeal No. 3-09-0989),

that court explained that the trial court had denied McClain

leave to file the second petition at all (more on this

subject later).

4. Unlike the just-described disposition of McClain’s

aborted second petition for post-conviction relief in the

state court system, his third such effort--which was not

filed until December 12, 2008 (Petition Pt. II(3d)

¶1.B)--was allowed to be filed. It was not finally resolved

until December 19, 2011 (Petition Pt. II(3d) ¶1.H), so that

if McClain’s erroneously-stated timetable had been correct 

(as it was not), that late 2011 date could have marked the

commencement of the one-year limitations clock prescribed by

Section 2244(d)(1) and McClain would then have been home

free from the perspective of limitations.

But that “if” scenario is simply not the case, and any

misunderstanding that McClain may have on that score is fatal. 

In that respect Section 2254(d)(1)(A) provides in relevant part

for a one-year limitation period that begins on “the date on

which the judgment became final by the conclusion of direct

review or the application of the time for seeking such review.” 

As stated earlier, that starting date was 90 days after May 25,

2005, or August 23, 2005.

But then Section 2244(d)(2) provides a tolling period that

is measured by “[t]he time during which a properly filed

application for a State post-conviction or other collateral

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review with respect to the pertinent judgment or claim is

pending.” And on that score McClain’s only state court postconviction petitions that qualify as “properly filed” and as

having been “pending” at any time are the first petition (which,

as already stated in paragraph 2, came to an end on September 27,

2006) and his third petition (which, as stated in paragraph 4,

was filed on December 12, 2008). As for the second (and

unsuccessful) attempt to seek post-conviction relief, our Court

of Appeals’ opinion in Martinez v. Jones, 556 F.3d 637 (7th Cir.

2009)(per curiam) is on all fours with this case--and that

decision holds squarely that a successive petition (such as

McClain’s second effort) is not “properly filed” for purposes of

Section 2244(d)(2) where no court permission has been granted to

file that petition (id. at 639), nor is the time during which

such permission is sought tolled for statute of limitations

purposes (id.).

So the bottom line is that the entire period from

September 27, 2006 (the disposition date of McClain’s first state

court petition) and December 12, 2008 (the filing date of his

third petition) was a period during which no “properly filed”

petition was “pending” and was therefore not tolled under Section

2244(d)(2). And that being true, the one-year limitation period

under Section 2244(d)(1) had long since run out when McClain

tried to pursue that route for a third time.

Accordingly “it plainly appears from the petition and any

attached exhibits that the petitioner is not entitled to relief

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in the district court” (the language of Section 2254 Rule 4), and

the same Rule 4 then specifies that “the Judge must dismiss the

petition and direct the clerk to notify the petitioner.” This

Court so rules--the Petition is dismissed.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: April 2, 2012

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