motions by petitioner “for leave to file a motion for reconsideration of the order denying petition
for leave to appeal” and also for “reconsideration” to be “allowed,” vacating the order denying
the petition, and allowing the petition for leave to appeal); Phillips & Assoc. v. Brown, 737 N.E.
2d 1074 (Ill. 2001) (same); People ex rel. James Ryan, Attorney General of Illinois v.
Telemarketing Assoc., Inc., 737 N.E. 2d 1074 (Ill. 2000) (same); People v. Green, 737 N.E. 1074
(Ill. 2000) (same). Thus, respondent’s second argument likewise fails to support its argument for
dismissal of the instant petition.

Finally, respondent argues that the question at issue in this case, whether petitioner’s
motion to reconsider tolled the one-year limitation period set forth in §2244(d) of the AEDPA,
“has been decided by the Seventh Circuit in Tinker v. Hanks, 172 F.3d 990 (7" Cir. 1999), where
the court held that the limitations period is not tolled during the time following a petitioner’s
filing of a motion for leave to file a post-conviction application.” In actuality, however, Tinker is

no more supportive of respondent’s argument than Gendron. In Tinker, the Seventh Circuit held

that an application for permission to file a second state post-conviction proceeding is not a

“properly filed application” under §2244(d)(2) of the AEDPA. Tinker differs from the instant

case because petitioner’s motion for reconsideration was not an application to begin a second
post-conviction proceeding; petitioner’s motion simply sought to continue review of his current
post-conviction proceeding, which had been initiated by a properly filed petition that, the parties
agree, was indeed “pending” under §2244(d)(2) until at least October 6, 1999.

Based on all of the above, the court finds no basis for concluding that petitioner’s
otherwise “pending” petition somehow stopped pending simply because he sought leave to ask

the Illinois Supreme Court to reconsider its decision denying his petition. Thus, the court finds


properly filed.”). The parties also do not dispute that petitioner’s petition was, in fact, still
“pending” on October 6, 1999, the day the Illinois Supreme Court denied petitioner’s motion for
leave to appeal. See People v. Smith, 720 N.E.2d 1103 (ll. 1999). The parties disagree,
however, about whether the petition was still “pending” after that date. Respondent claims it was
not, but petitioner argues that because he filed a Motion for Leave to File a Motion for
Reconsideration (“motion for reconsideration”) in the Illinois Supreme Court on October 19,
1999, his petition remained “pending” until that motion was denied on November 12, 1999.

Respondent cites Gendron, 154 F.3d at 675, for the proposition that petitioner’s petition

was “pending” only until the Illinois Supreme Court denied his motion for leave to appeal. But

the petitioner in Gendron did not file a motion for reconsideration with the Illinois Supreme

Court like petitioner in the instant case. See id. Thus, Gendron is inapposite.

Respondent also argues that petitioner’s motion for reconsideration should not count
toward the time during which his post-conviction petition was pending under §2244(d) of the
AEDPA because “[tJhere is no provision in Illinois Supreme Court Rule 315 for filing such a
motion.” Respondent is correct, but the court finds the content of Rule 315 to be of no
significance to the question at hand because it does not preclude a motion for reconsideration.
Indeed, petitioner has demonstrated that the Illinois Supreme Court not only entertains, but also
on a number of occasions has granted, motions for reconsideration identical to the one he filed in

the instant case. See e.g. Happel_v. Wal-Mart Stores, 743 N.E. 2d 1007 (Ill. 2001) (declaring the

' Rule 315 governs appeals from Illinois appellate courts to the Illinois Supreme Court,
specifically addressing all of the following aspects of a petition for leave to appeal: the
appropriate grounds that may be raised therein; the allowable timing and contents of a petition;
the format, service and filing of a petition; the filing of the lower court record or abstract; and
other relating to the briefs filed by the parties and oral argument.

3


that petitioner’s post-conviction petition was “pending” before the Illinois Supreme Court under
§2244(d)(2) of the AEDPA through November 12, 1999.
CONCLUSION
Because petitioner’s habeas petition was filed within the one-year limitation under
§2244(d) of the AEDPA, respondent’s motion to dismiss is denied. Respondent shall file an
answer to the petition on or before December 3, 2001 and petitioner shall reply thereto by
January 3, 2002. The court will rule on the petition by mail thereafter.

ENTER: November 1, 2001

{Wat  Codts=

Robert W. Gettleman
United States District Judge



> Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sittin ge if Oth
or Magistrate jude Robert W. Gettleman than Aesiged sudee
CASE NUMBER 00 C 7096 DATE 11/1/2001
CASE USA ex rel. Alonzo Smith vs. Jerry Sternes
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) im Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) ao Answer brief to motion due___. Reply to answer briefdue___

(4) Oo Ruling/Hearing on setfor_____ at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__setfor___—_at.

(6) Q Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_ —sat__S
(7) a Trial[set for/re-set for]on___—_at

(8) a [Bench/Jury trial] [Hearing] held/continuedto at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) [1 FRCP41(a)(2).

(0) «of [Other docket entry} ENTER MEMORANDUM OPINION AND ORDER. Because petitioner’s
habeas petition was filed within the one-year limitation under §2244(d) of the AEDPA, respondent’s
motion to dismiss is denied. Respondent shall file an answer to the petition on or before 12/3/01 and
petitioner shall reply thereto by 1/3/02. The court will rule on the petition by mail.

(11) f [For further detail see order (on reverse side eberacrea original minute order.]

No notices required, advised in open court.

2

No notices required.
requires number of notices

NOV 0 9 2001

date docketed

o | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices. .
Mail AO 450 form. ee) %
Copy to judge/magistrate judge. BETUG
. 1/1/2001
cy bbe og vied nai
courtroom Gp iad al bi Gt 2g Auerauled roves,
ID deputy’s

initials

Date/time received in -
central Clerk's Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, ex rel. )
ALONZO SMITH, )
)
Petitioner, )
) No. 00C 7096

v. )

) Judge Robert W. Gettleman
JERRY STERNES, )
: )
Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Alonzo Smith has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. §2254. Respondent has filed a motion to dismiss the petition as time-barred by the
Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”), 28 U.S.C. §2244(d).
For the reasons explained below, respondent’s motion is denied.

DISCUSSION

Petitioner was convicted of murder, home invasion and armed robbery on July 12, 1984.
Thereafter, petitioner was sentenced to concurrent terms of 40 years for murder and 20 years each
for home invasion and armed robbery. Petitioner appealed his conviction and sentence, but both
were affirmed by the Illinois Appellate Court on May 6, 1986. See People v. Smith, No. 1-84-
1713 (Ill. App. Ct. 1st Dist. 1986). Petitioner then sought leave to appeal to the Illinois Supreme
Court, but his request was denied on October 2, 1986. See People v. Smith, 112 Ill. 2d 590 (Ill.
1986). Following that date, petitioner had ninety days in which to file a petition for writ of

certiorari in the United States Supreme Court. Thus, petitioner’s direct review of his conviction

a3


and sentence became final on December 31, 1986 (ninety days after October 2, 1986). See
Boggan v. Chrans, 2000 U.S. Dist. LEXIS 17935, *6, 2000 WL 1810035, *2 (N.D. Ill. Dec. 6,

2000) (adding the ninety-day period in which the petitioner could have sought certiorari from the

Supreme Court to the conclusion of his direct review period); United States ex rel. Williams v.
DeTella, 37 F. Supp. 2d 1048, 1048 (N.D. Ill. 1998) (same); United States ex rel. Gonzalez v.

DeTella, 6 F. Supp. 2d 780, 781-82 (N.D. Ill. 1998) (same), rev’d on other grounds, 202 F.3d 273

(7th Cir. 1999).

Under §2244(d) of the AEDPA, petitioner had one year from the date on which the
judgment against him became final by the conclusion of direct review, or the expiration of time
for seeking such review, in which to file the instant petition. Although petitioner filed his state
post-conviction petition in 1987, his one-year clock did not begin ticking until April 24, 1996,
the day that the AEDPA was enacted. Gendron v. United States, 154 F.3d 672, 675 (7" Cir.
1998). Also, petitioner’s one-year clock stalled while his “properly filed” application for State
post-conviction review was “pending.” AEDPA §2244(d)(2).

The parties do not dispute that petitioners’ Petition for Leave to Appeal to the Illinois
Supreme Court was, in fact, “properly filed” as that term is defined by §2244(d)(2) of the
AEDPA. See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (explaining that an application for state
post-conviction review is “properly filed” when “its delivery and acceptance are in compliance
with the applicable laws and rules governing filings”); Freeman y. Page, 208 F.3d 572, 576 (7th
Cir. 2000) (“Whether a collateral attack is ‘properly filed’ can be determined in a straightforward
way by looking at how the state courts treated it. If they considered the claim on the merits, it

was properly filed; if they dismissed it for procedural flaws such as untimeliness, then it was not