awaiting any response from the government, unless the court of appeals has given approval
for its filing.” Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Accordingly, this
Court must determine if petitioner’s previous filing makes his instant petition a second or
successive petition.

In Stewart v. Martinez-Villareal, the Supreme Court determined whether a
petitioner’s previous habeas petition, which was dismissed as untimely, barred a later
637, 640 (1998). The Stewart Court drew analogies to cases where the petitioner’s
previous habeas claim was dismissed for failure to exhaust state remedies. Jd. at 644-45,
In doing so, the Stewart Court stated that where “the habeas petitioner does not receive an
adjudication of his claim” in a prior petition, a subsequent petition is not second or
successive. Id. at 645. To construe such a subsequent habeas claim as barred by AEDPA
would “mean that a dismissal of a first habeas petition for technical procedural reasons
would bar the prisoner from ever obtaining federal habeas review.” Jd.

In the instant case, this Court dismissed petitioner’s previous claim due to the fact
that his state court proceedings had not been.resolved. (Pet’r’s Ex., Clark v. Cowan, No.
00 C 2600, Minute Order of 5/23/00.) Accordingly, the merits of the previous petition
were never reached. Jd. To bar the instant petition would insure that the petitioner never
received federal habeas review and would run contrary to the Supreme Court’s ruling in
Stewart. Therefore, the Court finds that the instant petition is not a second or successive

petition, and the Court has jurisdiction to consider it.


as procedurally irregular it has not been properly filed.” Fernandez v. Sternes, 227 F.3d
977, 978 (7th Cir. 2000).

The state trial court reached the merits of Clark’s first petition for post-conviction
relief. (Resp’t’s Ex. D), Minois v. Clark, Case No. 95 CR 30761 (Cir. Ct. Cook Cty.,
Crim. Div., order of Oct. 23, 1998). The Illinois Appellate Court did not disturb the trial
court’s ruling when it dismissed the appeal. (Resp’t’s Ex. E), Illinois v. Clark, No 1-98-
4658 (Ill. App. Ct. 1st Div. Dec. 23, 1999). Accordingly, Clark’s first petition for post-
conviction relief was properly filed and the period of time between the date it was filed,
August 3, 1998, until the date the Appellate Court accepted a withdrawal of Clark’s appeal
in the case, December 23, 1999, is not counted toward the period of limitation.'

Clark’s second petition for post conviction relief, however, was dismissed as
untimely. Not leaving any question that it based its decision on the timeliness of the
petition, the Illinois Appellate Court stated:

The only way for defendant to avoid.the effect of the statute of limitations on his

untimely filed second postconviction petition is to have alleged sufficient facts

showing that the delay in filing was not due to his culpable negligence. He failed
to meet that burden.
(Resp’t’s Ex. F, Illinois v. Clark, No. 1-00-0332 (Ill. App. Ct. Sep. 14, 2001).)

Since Clark’s second petition for post-conviction relief was, as a matter of state
law, not properly filed, the period of limitations was not tolled by its filing. Rather, the
period of limitations started running again for the second time—the first being after his
judgment became final by the conclusion of direct review—when Clark’s first petition for

post-conviction relief was no longer pending. On December 23, 1999, the Illinois

' As such, on December 23, 1999, only 89 days (May 4, 1998—the date the judgment became final by the
conclusion of direct review—to August 3, 1998) counted towards the period of limitation.

7


(Pet’r’s Ex., Clark v. Cowan, No. 00 C 2600 (N.D. Ill. May 23, 2000).) Clark never

appealed this Court’s ruling of May 23, 2000.

DISCUSSION

The previous decision of this Court clearly states that the dismissal of Clark’s
previous petition for a writ of habeas corpus, while granted without prejudice, would
become final if no motion for reinstatement was filed within sixty days of the termination
of state court proceedings. As no such motion was filed, that dismissal is now final.
Moreover, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-
year period of limitation on petitions for writ of habeas corpus which starts to run once a
judgment becomes final. 28 U.S.C. § 2244(d)(1)(A) (West 2002), Although Clark’s first
post-conviction petition tolled the period of limitations, his instant petition is, nevertheless,
untimely.

This Court will address the finality of Clark’s previous petition and then move to
the untimely nature of the instant petition. However, this Court must first address sua
sponte the jurisdictional issue of whether the instant petition is a second or successive

petition.

A. The Instant Petition Is Not a Second or Successive Petition

AEDPA provides that “[a] claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior application shall be
dismissed.” 28 U.S.C. § 2244(b)(1). Moreover, the Seventh Circuit has found that
pursuant to AEDPA this Court “must dismiss a second or successive petition, without

3


B. Clark’s Previous Habeas Petition’s Dismissal Is Now Final

* Clark argues that this Court’s minute order of May 23, 2000 in case number
00 C 2600 allows him to bring the instant petition. However, this Court clearly and
unequivocally stated in that minute order “petitioner may file a motion for reinstatement,
along with an amended petition, within sixty days after the termination of proceedings in
the Illinois state courts relating to petitioner’s [second post conviction petition]. If no such
timely motion for reinstatement is filed by the end of that period, the dismissal order that
has been entered here will become final the next court day.” (Pet’r’s Ex., Clark v. Cowan,
No. 00 C 2600 (N.D. Ill. May 23, 2000).) The INinois Supreme Court denied Clark’s
petition for leave to appeal the dismissal of his second post-conviction petition on
February 6, 2002. (Resp’t’s Ex. G, Letter from Sup. Ct. of Ill. to Atty. Gen’] of 2/6/02.)
Clark filed the instant petition on May 2, 2002. Even if this Court were to view Clark’s
instant petition as a motion for reinstatement of his first petition, which it declines to do, it
was not made within sixty days of the termination of proceedings in the Ulinois state
courts. Accordingly, pursuant to this Court’s Tuling in the minute order of May 23, 2000,

which Clark never appealed, the dismissal of Clark’s first petition is final.

C. Clark’s Current Petition is Untimely
AEDPA imposes a one-year period of limitations for habeas petitions and outlines
when that period begins and when it is tolled, stating that:
(d)(1) A 1-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 State court. The
limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review

5



Appellate Court allowed Clark to withdraw the appeal of the trial court’s dismissal of his
first post-conviction petition. (Resp’t’s Ex. E, Illinois v. Clark, No. 1-98-4658 (Ill. App.
Ct. Dec. 23, 1999).) Having sought to withdraw the appeal and having secured the
Appellate Court’s approval of that withdrawal, Clark cannot contend that the first petition
for post-conviction relief was pending beyond that date. Accordingly, the one-year period
of limitations has been running since December 23, 1999? and Clark’s instant petition,
filed on May 2, 2002, was filed over a year outside the period of limitation imposed by

AEDPA. Thus, the Court dismisses Clark’s instant habeas petition as untimely.

CONCLUSION
For the foregoing reasons, the Court grants respondent’s motion to dismiss Clark’s
habeas corpus petition [doc. no. 14-1] and hereby terminates this case.
SO ORDERED ENTERED

Melt, wae

HON. RONALD A. GUZMAN
United States Judge

> Moreover, at this point Clark had only 276 days (365 days minus the 89 days between the judgment
becoming final and the filing of the first post-conviction petition) to file his habeas petition without it being
barred under AEDPA’s one-year period of limitation for such actions.

8



Minute Order Form (06/97)

\ United States District Court, Northern District of Illinois
Name of Avsgned Judge Ronald A. Guzman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 3215 DATE 11/15/2002
CASE U.S. ex rel. Michael Clark vs. Warden Jonathan R. Walls
TITLE

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

MOTION:

DOCKET ENTRY:

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

(2) a Brief in support of motion due

(3) o Answer brief to motion due. . Reply to answer brief due.

(4) ia} Ruling/Hearingon____sset for____at.

(5) qa Status hearing{held/continued to] [set for/re-set for] on setfor att

(6) oO Pretrial conference[held/continued to} [set for/re-set for]on__—ssetfor_— saat
(7) Oo Trial[set for/re-set for]on__at

(8) Qo [Bench/Jury trial] [Hearing] held/continued to ____at

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

COFRCP4(m) ClLocal Rule 41.1 CFRCP41(a)(1) CFRCP41(a)(2).

ao) (Other docket entry] Enter memorandum opinion and order. For the Foregoing reasons, the Court
grants respondent’s motion to dismiss Clark’s habeas corpus petition (doc. No.14-1) and hereby
terminates this case.

(11) a [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. ;
Tinberef otices
Notices mailed by judge’s staff. NOV 5 8 2ng

Notified counsel by teleptione,

oY | Docketing to mail notices.

VY | Mail A0.450 form. 44no9 dona

PILL Sig +o
Copy to judge/magistrate judge. weg sn
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or the expiration of the time for seeking such review,

(B) the date on which the impediment to filing an application created by State

action in violation of the Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by

the Supreme Court, if the right has been newly recognized by the Supreme Court

and made retroactively applicable to.cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

(2) 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
28 U.S.C. § 2244(d)(1)-(2) (West 2002) (emphasis added).

Once Clark’s judgment “became final by the conclusion of direct review or the
expiration of the time for seeking such review,” the one-year period of limitation for
habeas corpus proceedings began to run, 28.U.S.C. § 2244(d)(1)(A). The Illinois
Supreme Court denied Clark’s leave to appeal on February 4, 1998. However, Clark had
ninety days from this date to seek a writ of certiorari from the United States Supreme
Court. Accordingly, the one-year period of limitations began on May 4, 1998—ninety
days from when the Illinois Supreme Court denied Clark’s leave to appeal. See Anderson
v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002) (holding that period of limitation for habeas
petitions under AEDPA begins to run when the time allotted for filing a writ of certiorari
expires).

Additionally, the period of limitation is tolled while “a properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending.” See 28 U.S.C. § 2244(d)(2). The Seventh Circuit has explained that

“whether a petition is ‘properly filed’ depends on state law, so that if a state court accepts

and entertains it on the merits it has been ‘properly filed’ but that if the state court rejects it


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

EASTERN DIVISION oe
NOV 18 2002,
UNITED STATES OF AMERICA ex rel. )
MICHAEL CLARK, )
)
Petitioner, )
v. ) Judge Ronald A. Guzman

)

WARDEN JONATHAN R. WALLS, ) 02 C 3215
)
Respondent. )

MEMORANDUM OPINION AND ORDER

Before this Court is respondent Jonathan Walls’ motion to dismiss the petition for
writ of habeas corpus of petitioner Michael Clark (“Clark”), who is serving three 24-year

prison terms for aggravated criminal sexual assault. For the reasons provided in this

FACTS NOV 18 250g

Memorandum Opinion and Order, respondent’s motion is granted.

On August 2, 1996, Clark was convicted of three counts of aggravated criminal
sexual assault. Since his conviction, Clark has filed a petition for direct review and two
separate petitions for collateral post-conviction relief, none of which have been successful.

After the Winois Appellate Court denied his direct appeal (Resp’t’s Ex. A, Illinois
v. Clark, No. 1-96-3331 (Ill. App. Ct. Oct. 14, 1997)), Clark petitioned for leave to appeal
the decision of the Illinois Appellate Court. ‘The Illinois Supréme Court denied his
petition. (Resp’t’s Ex. B, Illinois v. Clark, No. 84609 (Ill. Feb. 4, 1998).)

Not having any success with his direct appeal, Clark filed his first of two pro se

post-conviction petitions on August 3, 1998. His first post-conviction petition was


dismissed as frivolous and patently without merit by the trial court. (Resp’t’s Ex. D,
Illinois v. Clark, No. 95 CR 30761 (IIL. Cir. Ct. Oct. 23, 1998).) Clark appealed the trial
court’s ruling. However, the State Appellate Defender representing Clark filed a motion
for leave to withdraw as counsel arguing that an appeal in the case would be frivolous and
Clark supported the State Appellate Defender’s motion as well as moving for a dismissal
of the appeal. (Resp’t’s Ex. E, Illinois v. Clark, No. 1-98-4658 (Ill. App. Ct. Dec. 23,
1999).) The Appellate Court granted the State Appellate Defender’s motion to withdraw
as counsel as well as Clark’s motion to withdraw the appeal. Jd.

On December 7, 1999, Clark filed a second pro se post-conviction petition. On
September 14, 2001, the Illinois Appellate Court dismissed the petition as untimely.
(Resp’t’s Ex. F, Illinois v. Clark, No. 1-00-0332 (Ill. App. Ct. Sep. 14, 2001).) On
February 6, 2002, the Supreme Court of Illinois denied Clark’s petition for leave to appeal
the dismissal of his second post-conviction petition. (Resp’t’s Ex. G, Letter from Sup. Ct.
of II. to Att’y Gen’! of 2/6/02.)

In another case before this Court, Clark v. Cowan, No. 00 C 2600, Clark filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a motion
asking that this Court stay or hold the case in abeyance until all state court proceedings
were resolved, On May 23, 2000, this Court in a minute order dismissed that habeas
petition without prejudice stating:

The petitioner may file a motion for reinstatement, along with an amended petition,

within sixty days after the termination of proceedings in the I!inois state courts

relating to petitioners’ now pending post-conviction petition. Ifno such timely

motion for reinstatement is filed by the end of that period, the dismissal order that
has been entered here wiil become final on the next court day.