failed to properly admonish him, at the time of sentencing for the guilty plea, that he
would serve a term of mandatory supervised release. This claim is presently before the
Court.

LEGAL STANDARD

Habeas corpus relief will not be granted unless the state court’s adjudication of a
claim resulted in a decision that “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). The federal court deferentially reviews the
decision of the last state court. Griffin v. Pierce, 622 F.3d 831, 841 (7th Cir. 2010).
State-court factual findings are presumed to be correct unless the petitioner rebuts this
presumption with “clear and convincing evidence.” Schriro v. Landrigan, 550 U.S. 465,
473-74 (2007) (citing 28 U.S.C. § 2254(e)(1)).

A federal habeas court “may not issue the writ simply because the court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.” Jackson v. Frank, 348 F.3d
658, 662 (7th Cir. 2003). The court can issue a writ only if it determines that the state
court’s application of federal law was “objectively unreasonable.” Williams v. Taylor,

562 U.S. 362, 409 (2000) (Williams). It is a difficult standard to meet because

proceedings. After Del Valle’s amended habeas petition was stricken, Del Valle argued,
in his second amended habeas petition, that the trial court failed to properly admonish
him regarding his term of mandatory supervised release.


defendant must be advised of a term of MSR at the time he attempts to
enter a plea of guilty. Quite the contrary, the Court has expressly declined
to decide such an issue in the very similar context of parole.

Id. at 724 (internal citation omitted); see U.S. ex rel. Robinson v. Chandler, No. 08 C
1558, 2011 WL 2149358, at *4 (N.D. Ill. May 25, 2011) (denying habeas claim where
trial court failed to admonish petitioner at plea hearing of MSR term because “[t]here is
no [U.S.] Supreme Court precedent for the proposition that a defendant must be advised
of a term of MSR at the time he attempts to enter a plea of guilty.”); see also U.S. ex rel.
Fogarty v. Dawson, No. 11 C 40, 2011 WL 117203, at *1 (N.D. Ill. Jan. 7, 2011) (same);
US. ex rel. Adams v. Gilson, No. 05 C 4703, 2008 WL 2704878, at *3 (N.D. Ill.
July 8, 2008) (denying habeas claim based on procedural default but noting the same).

Accordingly, Del Valle cannot show that the Illinois Appellate Court
unreasonably applied clearly established Supreme Court law because the Supreme Court
has expressly declined to decide this issue. See Lockhart, 446 F.3d at 724 (citing
Williams, 455 U.S. 624, 630 n. 9 (1982)).

Certificate of Appealability

Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254
Proceedings, the “district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” A habeas petitioner is entitled to a
certificate of appealability only if he can make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2).

When a court has denied a petition on procedural grounds without reaching the

underlying constitutional claim, the petitioner must show that reasonable jurists would


From April 24, 1996 (Del Valle’s conviction was final by then)‘ to
September 10, 1996 (when Del Valle’s post-conviction petition was filed), 139 days had
lapsed. From September 10, 1996 to December 3, 1997 (the date on which Del Valle’s
post-conviction petition was no longer pending), the statute of limitations was tolled.

28 U.S.C. § 2244(d)(2). From December 3, 1997 to March 22, 2001 (when Del Valle
filed his original habeas petition) 1,205 days lapsed. Therefore, a total of 1,344 days
lapsed after the statute of limitations began running on April 24, 1996, which exceeds the
one-year statute of limitations set by the AEDPA. Therefore, Del Valle’s original
habeas petition is untimely.

Here, Del Valle’s third amended habeas petition, filed on March 30, 2011, is the
operative habeas petition. See Newell y. Hanks, 283 F.3d 827, 834 (7th Cir. 2002)
(holding that amended habeas petition supersedes original habeas petition).

Because Del Valle’s March 22, 2001 initial habeas petition is untimely, his third
amended petition, filed on March 30, 2011, is also untimely. U.S. ex rel. McCoy v.
McCann, No. 08 C 1453, 2009 WL 2208155, 2 (N.D. Ill. July 23, 2009) (holding that
original habeas petition was time-barred and “[p]etitioner does not raise anything new in

his amended petition that would change the court’s analysis of the application of the

* Del Valle’s conviction in this case for attempted murder became final on
March 11, 1988, thirty days after his sentence was imposed on February 10, 1988, when
Del Valle failed to move to withdraw his plea. Ill. Sup. Ct. R. 604(d) (“No appeal from a
judgment entered upon a plea of guilty shall be taken unless the defendant, within 30
days of the date on which sentence is imposed, files in the trial court a motion to
reconsider the sentence, if only the sentence is being challenged, or, if the plea is being
challenged, a motion to withdraw the plea of guilty and vacate the judgment.”).


unreasonable means “something lying well outside the boundaries of permissible
differences of opinion.” McFowler v. Jaimet, 349 F.3d 436, 447 (7th Cir. 2003).

ANALYSIS

Statute of Limitations

Respondent argues that Del Valle’s petition should be dismissed because it is
time-barred under the Antiterrorism and Effective Death Penalty Act (‘AEDPA”), which
imposes a one-year statute of limitations for filing habeas petitions. 28 U.S.C.
§ 2244(d)(1). Ifa petitioner’s conviction became final before the AEDPA’s enactment,
this one-year statute of limitations does not begin to run until the AEDPA’s effective date
on April 24, 1996. Gendron vy. United States, 154 F.3d 672, 675 (7th Cir. 1998)
(Gendron). Additionally, “the time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or claim
is pending shall not be counted” toward the one-year statute of limitations. 28 U.S.C.
§ 2244(d)(2). Here, Del Valle’s conviction became final before the effective date of the
AEDPA, and the statute of limitations thus began to run on April 24, 1996. Gendron, 154

F.3d at 675.


2007) (“[W]e have yet to identify a factual circumstance so extraordinary that it warrants
equitable tolling”).
Procedural Default

Even if Del Valle’s claim was not time-barred, it would be procedurally defaulted.
A petitioner must present his claims to the Illinois courts, up to and including the
Illinois Supreme Court, to avoid procedural default. See O'Sullivan v. Boerckel, 526 U.S.
838, 844 (1999). This means that his claims must appear not only in a petitioner’s PLA
but also in his filings with the state trial court and intermediate appellate court.
See Castille v. Peoples, 489 U.S. 346, 349 (1989). Here, Del Valle’s due-process claim
was not raised through one complete round of state-court review because Del Valle did
not raise his claim in a PLA to the Illinois Supreme Court. Therefore, Del Valle’s claim
is also procedurally defaulted.

Due-Process Claim

Even if Del Valle’s claim was not time-barred or procedurally defaulted,
Del Valle’s claim would be denied on the merits. Under the AEDPA, the Court’s focus is
whether the Illinois Appellate Court’s decision “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d)(1).

The United States Supreme Court has never held that a defendant has a due-
process right to be advised of MSR when he enters into a plea agreement. In Lockhart v.
Chandler, 446 F.3d 721 (7th Cir. 2006) (Lockhart), the Seventh Circuit noted:

There is no [U.S.] Supreme Court precedent for the proposition that a


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
JOSE DEL VALLE, )
)
Petitioner, )
)
v. ) CaseNo.01C Z03(,

)

ALLAN MARTIN, Acting Warden, ! ) Judge John W. Darrah
Shawnee Correctional Center, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Petitioner Jose Del Valle’s Third Amended
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 against Allan Martin,

Warden of Shawnee Correctional Center, Illinois (“Respondent”).”

' Del Valle named Jody Hathaway as the Warden of Shawnee Correctional
Center. Allan Martin is the Acting Warden of Shawnee Correctional Center, where
Del Valle is in prison, and is substituted as the proper respondent in this
matter. See Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts; Fed. R. Civ. P. 25(d); Bridges v. Chambers, 425 F.3d 1048, 1049-50 (7th
Cir. 2005).

? This case is one of three cases that are procedurally related both in this Court
and the courts of Illinois. On March 22, 2001, Del Valle filed a pro se federal habeas
corpus petition, challenging Del Valle’s convictions for three separate offenses in
Cook County Criminal Court. Del Valle was convicted in these three factually unrelated
cases of: (1) attempted murder in Case No. 86 CR 13076, (2) murder in Case No. 86 CR
1470, and (3) voluntary manslaughter in Case No. 87 CR 1016.

On December 11, 2003, this Court granted Del Valle’s motion to stay the
proceedings to exhaust his remedies in state court. On January 22, 2010, Del Valle filed
an amended habeas petition in Case No. 01 C 2036, which this Court struck on
April 28, 2010, without prejudice to refile. On June 7, 2010, Del Valle filed a second

nee



debate: (1) whether the petition adequately alleges the denial of a constitutional right and
(2) whether the procedural ruling was correct. Slack v. McDaniel, 529 U.S. 473, 478
(2000). Here, as explained above, Del Valle’s claim is time-barred. He has not shown,
nor likely could he, that reasonable jurists would resolve the procedural ruling differently.
Accordingly, the Court declines to issue a certificate of appealability.
CONCLUSION

For the reasons stated above, Del Valle’s Third Amended Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 [69] is denied. The Court declines to issue
a certificate of appealability. The clerk is directed to change the Respondent’s name in

this matter as reflected in the above case caption.

Date: -F- J 2__ ane

JOHN|W. DARRAH *
United States District Court Judge

11


statute of limitations. As such, petitioner’s amended petition for writ of habeas corpus is
time-barred under 28 U.S.C. § 2544(d).”). Moreover, Del Valle’s third amended habeas
petition raises arguments regarding his term of mandatory supervised release that do not
relate back to the ineffective-assistance-of-counsel claim raised in his original habeas
petition.> Therefore, even if his original habeas were timely, which it is not, his third
amended habeas petition would not be.

Furthermore, Del Valle has not demonstrated that equitable tolling of the one-year
limitations period is applicable. The limitations period may be tolled if the petitioner can
establish that: (1) he has been pursuing his rights diligently and (2) some extraordinary
circumstance far beyond his control stood in the way of timely filing. Pace v.
DiGuglielmo, 544 U.S. 408, 419 n.8 (2005); see Modrowski v. Mote, 322 F.3d 965, 967
(7th Cir. 2007). Del Valle has not alleged any “extraordinary circumstances” that would
warrant equitable tolling. See Holland v. Florida, 130 S.Ct. 2549, 2553 (2010) (holding
that equitable tolling is only appropriate when an “extraordinary circumstance” stood in

the way of a timely filing); Johnson v. Chandler, 224 Fed. App’x. 515, 519 (7th Cir.

° For purposes of habeas petitions, rules regarding amended petitions are
governed by the Federal Rules of Civil Procedure. See 28 U.S.C. § 2242 (petitions “may
be amended or supplemented as provided in the rules of procedure applicable to civil
actions”); Mayle v. Feliz, 545 U.S. 644, 654-55 (2005). “Amendments to a habeas
petition made after the limitations period has run may relate back to the original petition
only if “the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out — or attempted to be set out — in the original pleading.”
USS. ex rel. Delaola v. Pillow, 10 C 665, 2011 WL 2200088 (N.D. Ill. June 13, 2011)
(citing Fed. R. Civ. P. 15(c)(2)).


On March 3, 2006, while the PLA was pending, Del Valle filed a petition for
relief from judgment in the Circuit Court of Cook County pursuant to 735 ILCS 5/2-

1401, attacking the attempted murder and murder convictions; the trial court dismissed
the petition on April 14, 2006. Del Valle’s appeal from the dismissal of his 2-1401
petition raised two claims: (1) the trial court failed to admonish him that he was required
to serve three years of mandatory supervised release following the completion of his
prison sentence for attempted murder and murder; and (2) under Illinois procedural rules,
the trial court should not have summarily dismissed petitioner’s 2-1401 petition and
should have construed it as a petition under the Post-Conviction Hearing Act.

On April 17, 2008, the Illinois Appellate Court affirmed the trial court. The
Illinois Supreme Court denied Del Valle’s PLA on September 24, 2008, but entered a
supervisory order, remanding the case to the appellate court for reconsideration in light of
People v. Welch, 877 N.E.2d 134 (Ill. App. Ct. 2007), People v. Lawton, 818 N.E.2d 326
(Ill. 2004), and People v. Harvey, 753 N.E.2d 293 (Ill. 2001). On November 26, 2008,
the Illinois Appellate Court again affirmed the dismissal, holding that Del Valle’s claims
were inappropriate for a Section 2-1401 petition because they raised questions of law, not
fact. Del Valle did not file a PLA following the appellate court’s decision.

In his operative third amended habeas petition filed on March 30, 2011,°

Del Valle raised one claim: Del Valle was denied due process because the trial court

3 In Del Valle’s original habeas petition, he argued that his attorney was
ineffective for allowing him to plead guilty when he knew that the guilty plea could have
adverse sentencing ramifications in Del Valle’s other pending criminal cases and because
a guilty plea, in turn, prevented Del Valle from testifying in his defense at those other


dismissed on October 3, 1996. Del Valle appealed, and the appeal was consolidated with
the direct appeal from his Cook County voluntary manslaughter conviction in

Case No. 87 CR 1016 and the denial of Del Valle’s post-conviction petition regarding his
Cook County murder conviction in Case No. 86 CR 14790.

Del Valle raised one claim on appeal: the trial court abused its discretion by
sentencing him to the maximum extended term for voluntary manslaughter and ordering
that sentence be served consecutively to the attempted murder sentence. On June 30,
1997, the Illinois Appellate Court affirmed. Del Valle filed a petition for leave to appeal
(“PLA”), raising the same claim that he raised in the appellate court. The
Illinois Supreme Court denied the PLA on December 3, 1997.

On January 8, 2004, while Del Valle’s federal habeas proceeding was stayed
(see note 2), Del Valle filed a pro se post-conviction petition in the Circuit Court of
Cook County, challenging his attempted murder conviction, as well as the separate
convictions of murder and voluntary manslaughter. On March 24, 2004, the state trial
court summarily dismissed the petition as frivolous and patently without merit.

Del Valle appealed, raising one claim: his extended, consecutive sentence for
voluntary manslaughter was unconstitutional under Apprendi v. New Jersey, 530 U.S.
466 (2000) (Apprendi), because the question of whether the crime was brutal and heinous
was decided by the trial court, not a jury. On November 10, 2005, the state appellate
court affirmed, reasoning that Apprendi was not retroactive and that Del Valle’s direct
appeal ended before that opinion was entered. Del Valle’s PLA was denied by the

Illinois Supreme Court on March 29, 2006.



BACKGROUND

The factual findings of a state trial or appellate court are presumed true in a
federal habeas proceeding unless the petitioner can rebut the presumption with clear and
convincing evidence. 28 U.S .C. § 2254(e)(1). Del Valle has not challenged the state
courts’ summary of facts. Accordingly, the following facts are drawn from the trial court
and appellate court’s opinions.

On July 30, 1986, Del Valle shot his girlfriend, Roaima Amaro, twice in the head
and left her to die in a 25-foot hole in a railroad yard. Amaro survived the shooting. On
January 5, 1988, in the Circuit Court of Cook County, Illinois, Del Valle pled guilty to
attempted murder in Case No. 86 CR 13076, the conviction that he challenges in the
present habeas petition. On February 10, 1988, the trial court sentenced Del Valle to
twenty-five years in prison. Del Valle did not move to withdraw his plea, file a motion to
reconsider his sentence, or file a notice of appeal.

On September 10, 1996, prior to filing the federal habeas petition, Del Valle filed
a post-conviction petition in the Circuit Court of Cook County pursuant to the Illinois

Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seg., which the trial court summarily

amended habeas petition in Case No. 01 C 2036. On September 7, 2010, Del Valle’s
three claims were severed into three separate federal cases: (1) the original Case No. 01
C 2036 (attempted murder); (2) Case No. 10 C 5745 (murder); and (3) Case No. 10 C
5746 (voluntary manslaughter). On March 30, 2011, Del Valle filed third amended
habeas petitions in each of the three separate federal cases.

This opinion will resolve only the petition in the above-captioned case,
No. 01 C 2036 but because of the post-conviction procedural overlap mentioned above,
the other federal habeas petitions of Case Nos. 10 C 5745 and 10 C 5746 must be
discussed. However, each federal habeas petition will be the subject of a separate
opinion and order under that case number entered contemporaneously with this opinion.