IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.)

MICHAEL GILYARD #B-09132, )

)

Petitioner, )

)

v. ) No. 01 C 6550

)

JERRY L. STERNES, )

)

Respondent. )

MEMORANDUM ORDER

Michael Gilyard (“Gilyard”), continuing to pursue any

possible (or, perhaps more accurately, any impermissible) route

to attacking his decade-old felony murder conviction in the

Circuit Court of Cook County, has just filed what he captions

“Motion for Relief from Judgment” (“Motion”). This is the latest

among Gilyard’s litigative travels through both the state and

federal court systems, and it has come to this Court’s calendar

by random assignment because Honorable David Coar, who handled

Gilyard’s 28 U.S.C. §2254 Petition for Writ of Habeas Corpus 1

from its inception in 2001, left his District Court position at

the end of the year 2010.

It would be an understatement to describe the course of this

litigation as convoluted, and pages 2-7 of Gilyard’s 22-page

handprinted Motion recount his travels through the courts. For

present purposes the focus can begin with the April 30, 2004

 All further references to Title 28’s provisions will 1

simply take the form “Section--.”
dismissal of Gilyard’s Section 2254 federal habeas proceeding,

which ultimately eventuated in our Court of Appeals’ October 9,

2007 affirmance (attached to this opinion as Ex. 1) of Judge

Coar’s denial of Gilyard’s Fed. R. Civ. P. (“Rule”) 60(b) motion

for relief from the dismissal of his habeas petition, followed by

the Supreme Court’s driving of the final nail in the coffin of

that effort by its denial of certiorari.

Although a detailed consideration of Gilyard’s current

belated arguments would plainly disclose their substantive

poverty, it is unnecessary to travel that path because Gilyard so

obviously fails the underlying Rule 60(c)(1) requirement that any

“motion under Rule 60(b) must be made within a reasonable time.” 

This opinion therefore turns to that threshold issue.

Unsurprisingly, Gilyard’s extensive and extended litigation

efforts have given him considerable familiarity (though, as will

be seen, not enough) with procedural limitations on postconviction procedures. Because Gilyard expressly recognizes the

problems that he would confront if he sought to essay a second

petition for federal habeas relief, he seeks instead to call 2

once again upon Rule 60(b)--more precisely, on the catchall

provision of Rule 60(b)(6). But analysis readily demonstrates

 Motion at 7 states: 2

The instant motion is not the equivalent of a second or

successive habeas petition so as to be subject to the

insurmountable barrier of 28 U.S.C. §2244(b).

2
the total absence of justification for his undertaking the

current proceeding so many years down the pike.

When the underbrush included in Gilyard’s narrative is

cleared away, it is plain that at the latest he learned more than

four years ago--in January 2007--(1) about the earlier denial of

his above-described effort to obtain Rule 60(b) relief and

(2) about the nature of the reasons that had caused the denial of

a certificate of appealability (“COA”)(Motion at 5). Further

developments had then led to the already-referred to Court of

Appeals’ October 2007 affirmance of that denial (Ex. 1) and the

Supreme Court’s subsequent denial of certiorari.

Gilyard’s Motion at 6-7 says only this in an effort to paper

over the extended time gap between those last-mentioned federal

proceedings and his current Motion:

With the reasons for The Court’s denial of a COA

finally in his possession, Petitioner then petitioned

for a writ of certiorari on April 25, 2008. (Gilyard

v. Chandler, No. 07-10710). Said petition was denied

on June 5, 2008 and the request for rehearing denied on

September 5, 2008.

Thereafter, Petitioner initiated a mandamus/habeas

corpus action in the Illinois courts on February 18,

2009 attacking his conviction and sentence as void

while alleging that: (1) The trial court lacked the

power to convict Mr. Gilyard of felony-murder based on

People v. Morgan, 197 Ill.2d 404 (2001), ensuring that

a defendant will not be punished as a murderer where

the State has failed to prove that a knowing murder

occurred; (2) The Mandatory Supervised Release portion

of Mr. Gilyard’s sentence is void where the calculation

and execution thereof causes his maximum statutory

penalty to be exceeded; and (3) The charge of felonymurder predicated on home invasion is void where it

3
fails to state an offense.

The trial court dismissed the petition without an

evidentiary hearing on May 5, 2009. On September 30,

2010 the Illinois Appellate Court affirmed the

dismissal in an apparent merits determination, and, on

January 26, 2011 the Illinois Supreme Court denied

leave to appeal, No. 111356.

This Court has obtained a copy of the Illinois Appellate Court’s

unpublished order in that state court proceeding (a document that

Gilyard omitted to include as an exhibit to his Motion) and has

attached it as Ex. 2 to this opinion. To read it is to confirm

the total irrelevance of those state court proceedings as a

“reasonable time” factor for Rule 60(c)(1) purposes.

There is no arguable justification for the multiyear delay

that ensued from the latest of Gilyard’s federal efforts before

he launched this second Rule 60(b) motion. Motion at 7 says he

“only attacks the April 30, 2004 judgment of This Court on the

basis of the procedural defect it contains.” Motion at 8-9 then 

itemizes the purported procedural defects, the last of which is

said to have taken place years ago (“the misplacing of the notice

of presentment attached to the October 18, 2006 motion requesting

a ruling on the Rule 60(b) motion”). Even if the later rulings

by our Court of Appeals (in 2007) and the Supreme Court (in 2008) 

could be tacked onto that last date, Gilyard’s present motion is

unreasonably tardy as a matter of law.

Conclusion

This excursion through Gilyard’s tortuous litigative history

4
has been longer than this Court would have preferred, but the

prolonged trip has more than amply demonstrated the untimeliness

of his current effort to escape the strictures faced by any

second habeas corpus petition under Section 2244. In sum,

Gilyard’s Rule 60(b)(6) Motion is denied summarily.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: June 6, 2011

5