reason to know (the concept of inquiry notice) of the injury
about which he or she complains. As our Court of Appeals has
said in Qwens v. Boyd, 235 F.3d 356, 359 (7 Cir. 2000)
(numerous citations omitted) of the comparable “due diligence”
requirement in Section 2244(d) (1) (D), which sets out in the
selfsame terms the fourth alternative among the same set of four
exceptions to a one-year limitation period for habeas petitions
by state prisoners:

First, the time commences when the factual predicate
"could have been discovered through the exercise of due
diligence,” not when it was actually discovered by a
given prisoner. Second, the trigger in §2244(d) (1) (D)
is (actual or imputed) discovery of the claim's
"factual predicate,” not recognition of the facts'
legal significance. Most federal statutes of
limitations are injury-based. Unlike some state
systems, which start the time only when a party knows
{or should recognize) that a legal wrong has been done,
federal statutes use objective indicators as triggers.
Section 2244 (d) (1) (D) follows the norm for a federal
statute of limitations. Time begins when the prisoner
knows (or through diligence could discover) the
important facts, not when the prisoner recognizes their
legal significance. If §2244(d) (1) used a subjective
rather than an objective standard, then there would be
no effective time limit, as [movant’s] case
illustrates.

And see, e.g., on still another (though wholly comparable) facet
of habeas jurisprudence involving the same “due diligence”
requirement, such cases as Woratzeck v. Stewart, 118 F.3d 648,

651-52 (9 Cir. 1997) and In re Magwood, 113 F.3d 1544, 1548


Mem. 20 correctly acknowledges that only the fourth of those
alternatives gives Smith any possible opening for habeas-type
relief at this late date, more than 13 years after he was
convicted and sentenced.

But the fundamental error in Smith’s position in that
respect is that the exercise of “due diligence”--the operative
standard under that fourth alternative--is not to be viewed from
the perspective of the time when Section 2255 was amended in
1996, let alone the even later date when the motion has been
filed. If any such rule were operative, someone who had been
sentenced (say) 30 or 40 years ago to a life sentence could file
a motion today and urge--just as Smith does here--that he or she
now has no access to the facts required to determine whether his
or her constitutional rights were violated that long ago (for
example, because significant parts or all of the record may have
been lost or destroyed), so that a hearing is needed to determine
those facts.?

Instead the due diligence branch of the Section 2255
formulation must be measured in the same way that due diligence
requirements are always measured: from the date when the party

on whom the burden of demonstrating such diligence knows or has

? Under that scenario, if a movant waits long enough the
potential for a meaningful hearing could be totally frustrated.
What then? Free the movant because of his own delinquency in
presenting the motion?


(11 Cir. 1997) (per curiam) .?

In this instance the due diligence clock began to tick on
the very date on which Smith’s sentence was imposed by Judge Bua
(the sentence that Smith now claims, and could equally well have
claimed right then, was unconstitutionally excessive and
disparate). Indeed, it will be remembered that Judge Bua
remained on this District Court for fully four years after Smith
was sentenced. There was nothing to prevent Smith from pursuing
during that period (or for that matter, from asserting even
shortly after Judge Bua’s departure) what Smith now claims, and

what he could egually have claimed then, was the

unconstitutionality of his sentence--nothing, that is, except
Smith’s own flight from justice. And Smith cannot be permitted
to extend Section 2255's statutory time limit as some kind of
reward for his choosing to become a fugitive at the very time
that his obligation to exercise due diligence arose.

In sum, Smith’s Section 2255 motion carries its own death
warrant. In the language of Rule 4(b) of the Rules Governing
Section 2255 Proceedings in the United States District Courts,

“it plainly appears from the face of the motion and any annexed

% Although both of those cases address the appropriateness
of filing a second or successive habeas petition attacking a
state conviction, the language that they construe (in Section
2244 (b) (2) (B) (i)) is right on point (“the factual predicate for
the claim could not have been discovered previously through the
exercise of due diligence”).


Minute Orde? Feem (06797)

———————_

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Milton I. Shadur d
° than Assigned Judge

CASE NUMBER 01 C 1540 DATE 3/8/2001
CASE USA vs. Donald Smith
TITLE ~ _
[in the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of { use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due.
(4) Qo Ruling/Hearing on set for at
(5) Qo Status hearing{held/continued to] [set for/re-set for] on set for at
(6) oa Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) Oo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Qa This case is dismissed [with/vithout] prejudice and without costs[by/agreement/pursuant to]
(OFRCP4(m) 1 General Rule 21 CUFRCP41(a)(1) [ FRCP41(a)(2).
ao) =x {Other docket entry] Enter Memorandum Opinion and Order. In sum, Smith’s Section 2255
motion carries its own death warrant. In the language of Rule 4(b) of the Rules Governing Section 2255
Proceedings in the United States District Courts, “It plainly appears from the face of the motion and any
annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the
district court.” Accordingly, as directed by the same tule, the motion and this action are summarily
dismissed.
a1) [For further detail see order attached to the original minute order,]
No notices required, advised in open court.
No notices required. umber of notices
JY | Notices mailed by judge’s staff.
ar 0.9 20
Notified counsel by telephone. se docked
Docketing to mail notices.
Mail AO 450 form, .
ring dep iniils
Copy to judge/magistrate judge. O-
82001

SN

courtroom yah wees date mailed notice
deputy’s hae

initials

4
SN

Date/time received in

central Clerk’s Office mailing deputy initials



exhibits and the prior proceedings in the case that the movant is
not entitled to relief in the district court.” Accordingly, as

directed by the same rule, the motion and this action are

Milton I. Shadur
Senior United States District Judge

summarily dismissed.

Date: March 8, 2001


@
>

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v. No. 01 C 1540

DONALD SMITH,

Defendant.
MEMORANDUM _ OPINION AND ORDER
This Court has just been assigned the 28 U.S.C. §2255?

motion of Donald Smith (“Smith”) to vacate, set aside or correct
the 40-year custodial sentence imposed on him back in September
1987 (sic) by this Court’s then colleague Honorable Nicholas Bua.
Because Judge Bua has long since left the bench (he resigned from
this District Court effective November 4, 1991), the delivery of
Smith’s motion to this Court’s calendar has taken place via this
District Court’s usual at-random assignment system. This
memorandum opinion and order is issued sua sponte because the
motion itself shows that it is untimely brought--an incurabl

flaw. WAR 99,2008

It is unnecessary for present purposes to go into the bulk

of the 20-page Memorandum of Law (cited “Mem.”), prepared by
Smith’s experienced counsel, that accompanies his three-page

motion--a memorandum that in part provides a detailed recital of

+ All further references to Title 28's provisions will

simply take the form “Section--.”


the circumstances surrounding the offenses of conviction of Smith
and his codefendants (Mem. 2-7) and of the circumstances of
Smith’s sentencing in absentia (he fled after the jury returned
its guilty verdict and before his scheduled sentencing date, Mem.
8). Nor is it necessary to address either the comparative
sentences that Judge Bua imposed on Smith and his codefendants
(Mem. 9-14) or the substantive merit or lack of merit of Smith’s
claims of constitutional deprivation (Mem. 16-20). Instead it is
clear that the initial--and indeed the only--focus of attention
must be on the motion’s timeliness or untimeliness, a subject to
which Smith’s able counsel has devoted only the sketchiest of
attention occupying just three-fourths of a page (Mem. 20).

As Smith’s counsel recognizes, the 1996 amendment to Section
2255 changed the law dramatically by introducing a one-year
statute of limitations measured from the latest of four dates:

(1) the date on which the judgment of conviction
becomes final;

(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;

(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or

(4) the date on which the facts supporting the
claim or claims presented could have been discovered
through the exercise of due diligence.