conviction petition on September 25, 1997, tolling the statute of limitations for filing
his habeas petition. The trial court denied his post-conviction petition on December 29,
1997. Petitioner timely appealed that denial to the Illinois Appellate Court on J: anuary
24, 1998, which affirmed the trial court’s ruling on March 30, 1999.

Petitioner did not bring the instant habeas petition until October 23, 2000, one
year and seven months after the Illinois Appellate Court’s ruling. Petitioner had less
than one year from the date of that ruling to bring his habeas petition because the
statute of limitations began running during the time his post-conviction petition was
not pending, including the three week period from September 2, 1997 until September
24, 1998 and the almost one month period from December 29, 1997 until January 24,
1998. Even assuming, however, that Petitioner had until March 30, 2000 to bring his
habeas petition, he nevertheless missed that deadline by seven months.

Nor does the fact that Petitioner sought leave to file a late petition for leave to
appeal to the Illinois Supreme Court help him. Under § 2244, only a properly filed
petition can toll the one-year limitations period. 28 U.S.C. § 2244(d)(2). “[A] ‘properly
filed application’ is one submitted according to the state’s procedural requirements
such as the rules governing the time and place of filing.” Hernandez v. Boyd, No. 99
C 1943, 2000 WL 139475, at *2 (N.D. Ill. Jan. 31, 2000) (quoting Lovasz v. Vaughn, 134
F.3d 146, 147 (3d Cir. 1998)). A petition for leave to file a late petition for leave to
appeal to the Illinois Supreme Court is, therefore, not a properly filed application. Id.
(quoting U.S. ex rel. Morgan v. Gilmore, 26 F. Supp. 2d 1035, 1038 (N.D. Ill. 1998); see

also Wesley v. Haws, No. 98 C 3205, 1999 WL 417378, at *1 (N.D. Ill. June 11, 1999)

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os

respond to the motion. More importantly, Petitioner himself filed a response opposing
that motion. See Respondent's Motion to Dismiss, Exhibit D, Motion for Leave to
Withdraw as Counsel on Appeal Pursuant to Pennsylvania v. Finley, 481 U.S. 551
(1987), {{ 8; Respondent’s Motion to Dismiss, Exhibit E, People v. Davila, No. 1-98-0466
(affirming trial court’s denial of Petitioner's post-conviction petition only after
reviewing the record in the case and “defendant’s response to the [Finley] motion’).
Thus, Petitioner has presented no evidence from which this court could conclude that
he did not receive timely notice of the Illinois Appellate Court’s decision. Petitioner’s
own ignorance of the state procedural requirements does not present grounds for
equitable tolling.

Finally, Petitioner contends that his petition cannot be dismissed as untimely
because, in a minute order dated December 20, 2000, this court already determined his
petition to be timely. Petitioner is incorrect. Instead, the court merely explained that
after receiving petitioner’s “motion to show cause” the court “provisionally finds the
petition to be timely, without prejudice to a contrary showing by respondent.” (Doc.
No. 9.) This order does not now preclude the court from finding, as it has, that Davila’s

habeas petition must be dismissed as untimely.


during his post-conviction appeal. Respondent now moves to dismiss Davila’s petition
as untimely.

DISCUSSION

Section 2244 of the Anti-Terrorism and Effective Death Penalty Act (CAEDPA”)
establishes the statute of limitations for all habeas petitions. The relevant part of this
provision provides that “ [a] one year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the judgment of a [s]tate
court.” 28 U.S.C. § 2244(d)(1). In Davila’s case, that limitation period runs from “the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Id. § 2244(d)(1)(a). AEDPA provides,
however, that “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 any period of limitation under this subsection.”
Id. § 2244(d)(2).

The direct review in Petitioner’s case was concluded by the Illinois Supreme
Court on June 4, 1997, when it denied Davila’s petition for leave to appeal. Pursuant
to Supreme Court Rule 13, Petitioner is entitled to count an additional 90 days, during
which time he could have filed a petition for writ of certiorari in the United States
Supreme Court. See Guitierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000) (Congress
intended to exclude from the one year statute of limitations any time during which a
direct appeal could have been filed, even ifsuch appeal was never filed). Davila’s direct

review was therefore concluded on September 2, 1997. Petitioner filed a timely post-

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(where petitioner filed a motion for leave to file a late petition for leave to appeal, and
that motion was denied, the late petition did not equitably toll or restart the AEDPA
period of limitations). As the court explained in Hernandez, any contrary result would
allow petitioners to “obtain an indefinite extension of the one-year deadline by filing
motions for leave to file a state petition to appeal,” effectively gutting “the effectiveness
of setting... a firm limitations period.” 2000 WL 139475 at *2. Additionally, in
Petitioner’s case, the Illinois Supreme Court actually denied his request to file a late
petition.” As such, along with being untimely, his petition was never “pending” in the
Illinois Supreme Court.

Nor does Petitioner present adequate grounds for equitable tolling of the statute
in this case. AEDPA’s one-year period of limitations is subject to equitable tolling,
Posada v. Schomig, 64 F. Supp. 2d 790, 796 (C.D. Ill. 1999)(citing United States v.
Griffin, 58 F. Supp. 2d 863, 868 (N.D. Il]. 1999)), but such equitable tolling is “granted
sparingly,” only when “[e]xtraordinary circumstances far beyond the litigant’s control”
prevented timely filing. United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.
2000)(quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). In
Petitioner’s case, he contends only that “unbeknownst to petitioner, the Public

Defender’s Office had filed a Motion to Withdraw as counsel on appeal, and the

2 Petitioner contends that the Illinois Supreme Court actually accepted his

petition and then denied it on its merits on October 3, 2000. Petitioner is incorrect.
Instead, this court confirmed with the Illinois Supreme Court that Davila’s petition
for leave to file a late petition was denied on October 3, 2000, and, therefore, the Ilinois
Supreme Court never considered his petition on its merits.

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ot
’
i

CONCLUSION

Because Davila filed this habeas petition outside of the one-year statute of

limitations for filing such petitions, the court grants Respondent’s motion to dismiss

Davila’s habeas petition (Doc. No. 14) as untimely.

ENTER:

Dated: August 8, 2001 ————
REBECCA R. PAELMEYER)
United States Distri dge



Minote Order Fos (00/o7" ~

SS b United States District Court, Northern District of Illinois

‘wrmagete age | __Rebegg@R. Pallmeyer | Siting suteitOme

CASE NUMBER v 00 C 6577 DATE 8/8/2001
CASE USA ex rel. Jesus Davila vs. Jerry Sternes
TITLE

MOTION: of the motion being presented.}

{in the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

DOCKET ENTRY:

Respondent’s motion to dismiss Davila’s habeas petition (Doe. No. 14) as untimely.

(dl)

[For further detail see order attached to the original minute order.]

ql) Oo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief. due.

(4) a Ruling/Hearingon___set for___—_at

(5) aq Status hearing[held/continued to] [set for/re-set for] on —____Setfor_____ at

(6) 0 Pretrial conference{heid/continued to] [set for/re-set for] on —__setfor__ at.

(7) Oo Trial{set for/re-set for]on____at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) General Rule21 CUFRCP4I(ay(1) CO FRCP41(a)(2).

(0) «=x [Other docket entry] Enter Memorandum Opinion and Order. Because Davila filed this habeas

petition outside of the one-year statute of limitations for filing such petitions, the court grants

No notices required, advised in open court,
3

No notices required. umber of notices

Document
Nuniber

¥ | Notices mailed by judge’s staff,

AUG,O.9 2

8/8/2001

Notified counsel by telephone.

Dockcting to mail notices,

v Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notice

courtroom,
BTV deputy’s
initials

ETV

Date/time received in

central Clerk’s Office mailing deputy initials

[6



Appellate Court had filed its order affirming the denial of the post-conviction petition.”
Petitioner's Motion to Show Cause, at 2. Petitioner does not, however, explain when
or how he became aware of the Illinois Appellate Court’s denial of his petition, nor does
he claim that any failure to get adequate notice of the order was the reason he did not
file a timely appeal of his post-conviction petition. Instead, he explains:
Petitioner did not know or understand the nature of the proceeding .. .
as far as appeal to the Illinois Supreme Court. Petitioner was totally
unaware that he only had [35] days to commence action in the Illinois
Supreme Court .... Unfortunately for petitioner he did not know that his
time limitation for filing... had expired until he conferred with another
inmate.
Petitioner’s Motion to Show Cause, at 3. To bolster his argument, Petitioner attaches
the affidavit of the inmate who explained the process to him, Johnny A. Outlaw.

‘

According to Outlaw, Petitioner “informed me that he thought his case was still
pending. I told him that his case was not pending” and that he must immediately file
a late petition. Jd., Outlaw Aff. Outlaw also explained that “[b]ased upon the
information ... 1 received from Jesus Davila, he did not understand the proceeding and
had been misinformed about the procedure for filing a petition for leave to appeal.” Id.

It appears from this record that Petitioner did have adequate notice of the
Illinois Appellate Court’s denial of his post-conviction petition, but he simply
misunderstood what that notice meant and did not seek out anyone’s help in
understanding his rights until April 24, 2000, Further, Petitioner’s claim that he did

not know about the Finley motion is not credible: His attorney testified that he

discussed the Finley motion with Petitioner and advised him of his opportunity to

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION,
UNITED STATES OF AMERICA )
ex rel. JESUS DAVILA, ) DOCKETED
) AUG 0 9 2001
Plaintiff, )
)
v. ) No. 00 C 6577
)
JERRY STERNES, ) Judge Rebecca R. Pallmeyer
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Petitioner Jesus Davila filed the instant petition for writ of habeas corpus on
October 23, 2000, alleging that he received ineffective assistance of counsel at trial and
all stages of his appeal and that he did not knowingly waive his right to be tried by a
jury. Respondent Jerry Sternes has moved to dismiss the petition as untimely. For the
reasons set forth below, Respondent’s motion is granted.

PROCEDURAL HISTORY

On April 12, 1995, following a bench trial in the Circuit Court of Cook County,
Petitioner Jesus Davila (“Petitioner”), along with his son, Rick Davila, was convicted
of delivery ofa controlled substance and sentenced to twenty-five years imprisonment.
(Respondent’s Motion to Dismiss Petition for Writ of Habeas Corpus (hereinafter
“Respondent’s Motion”), Exhibit A, People v. Davila, No. 1-95-1439, slip op. at 1 Ml.
App. Ct. Sept. 6, 1996).) Petitioner filed a timely appeal of his conviction to the Illinois
Appellate Court, alleging (1) court error in finding that he knowingly and intelligently

waived his right to a jury trial; and (2) ineffective assistance of trial counsel. (Id.) The


Mlinois Appellate Court affirmed Petitioner's conviction on September 6, 1996. Id.
Petitioner then filed a petition for leave to appeal to the Illinois Supreme Court, raising
the same two issues.! (People v. Davila, 173 Il. 24 531, 684 N.E.2d 1338 (Table Ill.
1997).) The Court denied that petition on June 4, 1997. (Id.)

Petitioner filed a timely post-conviction petition, which was denied by the trial
court on December 29, 1997. (Respondent’s Motion, Exhibit C.) Petitioner appealed
that decision to the Ilinois Appellate Court and, at that time, Petitioner’s appointed
counsel filed a motion to withdraw as appellate counsel, pursuant to Pennsylvania v.
Finley, 481 U.S. 551 (1987). (Id., Exhibit D.) On March 30, 1999, the Illinois Appellate
Court granted counsel’s Finley motion and affirmed the Circuit Court’s judgment. dd.,
Exhibit E, People v. Davila, No. 1-98-0466.) By his own admission, Petitioner failed
to file a timely appeal of his post-conviction petition to the Iinois Supreme Court. (See
Petitioner’s Motion to Show Cause, at 3.) Instead, he filed a petition for leave to file
a late petition for leave to appeal on May 26, 2000, but that petition was denied by the
court on October 3, 2000.

Currently incarcerated at the Dixon Correctional Center, Petitioner filed the
instant habeas petition on October 31, 2000, alleging that: (1) he received ineffective
assistance of counsel at trial andon appeal; (2) he failed to knowingly and intelligently

waive his right to a jury trial; and (3) he received ineffective assistance of counsel

' Petitioner actually missed the deadline for filing his petition for leave to

appeal to the Illinois Supreme Court, but he filed a petition for leave to file a late
petition for leave to appeal on January 1, 1997. The court granted that petition, and
therefore treated his petition as a timely petition for leave to appeal.

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