cna.

ce et all A i

or more arma ERT 4 A BB pine umn

Tate does not satisfy this standard. The only new

evidence that Tate relies upon is Monltson's possible testimony
as related in Monltson's affidavit. As previously discussed, the
affidavit is ambiguous and would only show that Monltson did not

see (or was not able to see) Tate running away from the shooting.

At least one other person already testified to that effect and.

Monltson would not be able to conclusively testify that Tate was

not present. Sellers' possible recantation is not new evidence

ies iaseneaa SS,

and was already raised at the trial. There was substantial
evidence of Tate's guilt presented at trial and, except for the
conclusory statement in Tate's present affidavit that he is "one-
hundred percent innocent of the crime," Tate's present

contentions tend to raise the question of whether he was the one

that actually hit the victim with a fired shot, not whether he
would still be guilty on an accountability theory. Tate does not.

point to new, reliable evidence that would make it more

than not that no juror would find him guilty. Tate does not

satisfy any possible miscarriage of justice exception to the time

limitations of § 2244(d).

For the foregoing reasons, Tate's petition will be denied

as untimely.

Tate also alleges three additional witnesses who did
not testify at trial could testify that Sellers recanted to them.

~ 19 -


§ 2244(d)(1)(D)). Even accepting that his petition was untimely
under § 2244(d), Tate contends his claims are still cognizable
because respondent was not prejudiced by the delay and because he
is actually innocent.

Section 2244(d) (1) (D) provides for a one-year limitation
period (plus any applicable tolling period) measured from "the
date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence." Tate makes contentions that can be construed as
raising this provision. See Memo. in Support of Habeas Petition
at 5; Reply to Respondent's Answer ¢ 15. The only possible newly
discovered evidence that may be a basis for invoking this
provision is the affidavit of Timothy Monltson, which is dated
May 13, 1999 and which relates to Tate's "Issue 6."3 Monltson
states in part in his affidavit:

On July 13, 1991, I was coming out of my
house. I am not sure of the time but I know it

was dark outside. I heard gun shots and I

observed some guys running. I then was
frightened and went back inside my house.
we ok ok

At the end of the month I heard that an
individual by the name of Timothy Tate was
arrested for the crime which occurred a few
houses from mine. The fact of the matter is that
I know Timothy Tate from the neighborhood. He
was not there at that crime scene nor was he the

If the claim accrued on May 13, 1999, it would be
timely since the one-year period beginning that date would have
been tolled during the pendency of the second post-conviction
petition (September 10, 1999 to January 29, 2001).

-13-


the claims related to Sellers being the triggerman and concluded
that there was not a reasonable probability of affecting the
outcome. As to the other issues raised, it was summarily stated
that they were "without merit." Tate did not petition the
Illinois Supreme Court for leave to appeal.

On September 10, 1999, Tate, proceeding pro se, filed a
second post-conviction petition.> on September 23, 1999, the
trial court denied the petition on the ground that second
petitions are not permitted. Tate appealed and the Public
Defender was again appointed to represent him. The Public
Defender again moved to withdraw, stating the following:

It is clear that Tate's Petition is the
"second" one recorded; it is not merely an
amended version of the original. The Post
Conviction Act contemplates the filing of only
one Post Conviction Petition. People v.
Caballero (1997), 179 Ill. 2d 205, 688 N.E.2d
658. See also, People v. Flores (1992), 153
Ill. 2d 264, 606 N.E.2d 1078, People v. Macky
(1992), 229 Ill. App. 3d 784, 595 N.E.2d 133.
Any claim of substantial denial of constitutional
xights not raised in the original is waived.
(See People v. Free (1988), 122 Ill. 2d 375, 522
N.E.2d 1188.

Counsel can find no manifest error in the
judge's finding that the Petition {being the
"second" is barred by statute, and therefore
seeks to withdraw. Pennsylvania v. Finley
(1987), 481 U.S. 551.

5A copy of the second post-conviction petition has not
been provided, but it apparently raises the issues contained in
the federal habeas corpus petition that were not raised on direct
appeal or in the first post-conviction petition. It may also
repeat some of the issues contained in the direct appeal and
first post-conviction petition.


SS SES SE! le ee tetera

IT IS THEREFORE ORDERED that petitioner's motion for
leave to file a reply to respondent's reply is granted.
Respondent's motion to dismiss [15-1] is granted. The Clerk of sai scdesiant
the Court is directed to enter judgment in favor of respondent

Mark Pierson and against petitioner Timothy Tate denying the

petition for writ of habeas corpus. If petitioner wishes to

appeal this order, he must file a Notice of Appeal to the United
States Court of Appeals for the Seventh Circuit with the Clerk of
the Court, United States District Court for the Northern District
of Illinois, 219 South Dearborn Street, 20th Floor, Chicago,

Illinois 60604, within thirty (30) days of the entry of the

judgment in this case. Any notice of appeal should also be
accompanied by a request for a certificate of appealability,
including a statement as to why a certificate should issue. See

28 U.S.C. § 2253; Fed. R. App. P. 22(b).

Wibiim T (book

UNITED STATES DISTRICT JUDGE

DATED: OCTOBER 27 r 2001

ENTER:

- 20 -


cose mene ECOL CRSP SPU A ine intro pr mmm Na

Tate contends that any delay should be excused because it
did not prejudice respondent in his ability to respond to the
habeas petition. See Reply to Respondent's Answer J 25. In
support of this contention, Tate cites Rule 9(a) of the Rules
Governing Section 2254 Cases. That Rule, however, predated
§ 2244(d) and provides a laches basis for dismissing habeas
petitions independent of the statute of limitations provision of
$ 2244(d). It does not impose a prejudice requirement for
petitions violating § 2244(d). Prejudice to the respondent is

not a factor to be shown in order to invoke the time limits of

§ 2244(d). Wyzykowski v. Department of Corrections, 226 F.3d

1213, 1216 (ith Cir. 2000). Section 2244(d) bars Tate's
petition regardless of any lack of prejudice to respondent as the
result of delay.

Tate's last contention is that his late filing should be
excused because he is actually innocent of the charge against
him. Just as actual innocence is a fundamental miscarriage of
justice that may excuse a procedural default, some courts have
indicated that it will also excuse a late filing beyond the

$ 2244(d) limitation period. See Holloway v. Jones, F. Supp.

2d , 2001 WL 1149352 *3-4 (E.D. Mich. Sept. 28, 2001)

(collecting cases); United States ex rel. Thomas v. Welborn, 2000

WL 1831548 (N.D. Ill. Dec. 13, 2000) (same). At least one

circuit court has indicated actual innocence will not be a basis

-17 -


Tate contends that the 1999 filing of his second post-
conviction petition tolled the federal limitation period from the
state court affirmance on direct appeal until the second post-
conviction petition was finally denied in January 2001 when the
Illinois Supreme Court denied leave to appeal. If correct, then
the federal petition was timely filed in April 2001. Section
2244(d) (2) limits tolling to a "properly filed" application for
state post-conviction review. Citing Tinker v. Hanks, 255 F.3d
444 (7th Cir. 2001), respondent contends the second post-
conviction petition had no tolling effect because it was a
successive petition which is not permitted under Illinois's post-
conviction procedures. Alternatively, respondent contends the
tolling effect of the second post-conviction petition did not
begin until it was filed in 1999, which would be too late to aid
Tate.

In Artuz v. Bennett, 121 S. Ct. 361 (2000), the Supreme
Court held that:

an application for state postconviction relief

is "properly filed" even if there are good

defenses to it, the requisite propriety having

to do not with the merits of the application but

with whether it conforms to purely formal

requirements such as "the form of the document,

the time limits upon its delivery, the court and

office in which it must be lodged and the

requisite filing fee," id. at 364 (footnote

omitted)--but also "preconditions imposed on

particular abusive filers." The Court

illustrated by quoting with pregnant emphases
28 U.S.C. § 2244 (b) (3) (A), .


counsel in failing to interview and call Timothy Monltson’ who
could testify that the triggerman was not Tate; (7) refusal to
grant trial counsel's motion to withdraw based on a conflict of
interest; (8) ineffective assistance of trial counsel in failing
to adequately prepare and present a motion to suppress Tate's
confession based on alleged torture and coercion by police
officers; (9) ineffective assistance of trial counsel in failing
to interview and present witnesses to corroborate the alleged
torture and coercion; (10) ineffective assistance of appellate
counsel on direct appeal for failing to raise the ineffective
assistance of trial counsel; and (11) denial of his first post-—
conviction petition having been incorrectly based on the
assumption that he pleaded guilty.
Section 2244(d) of Title 28 provides:
(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 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;

"The correct spelling of this person's name may be
"Montson." This opinion will use the "Monltson” spelling
generally contained in Tate's petition.



On November 16, 2000, the Illinois Appellate Court
granted the motion to withdraw and affirmed the denial of relief®
stating: "We have carefully reviewed the record in this case,
defendant's responses and the aforesaid brief in compliance with

the mandate of Pennsylvania v. Finley and find no issues of

arguable merit. Therefore, the motion of the public defender for
leave to withdraw as counsel is allowed and the judgment of the

circuit court is affirmed." Tate III, at 3. Tate filed a pro se

petition for leave to appeal to the Illinois Supreme Court which
was denied on January 29, 2001.

On April 2, 2001, Tate filed his federal habeas corpus
petition containing the following issues: (1) failure to give
the accomplice witness instruction; (2) the excessive length of
the sentence; (3) ineffective assistance of trial counsel in
failing to interview and call the witnesses to whom Sellers had
admitted being the triggerman; (4) prosecutorial misconduct in
using perjured testimony and withholding evidence;

(5) ineffective assistance of appellate counsel for not raising

the juror issue on appeal; (6) ineffective assistance of trial

‘This unpublished order of the Illinois Appellate Court
is provided as Exhibit G to respondent's answer to the habeas
corpus petition and will hereinafter be referred to as "Tate
Iii."


co nance 1 EW Neen rer orm eiaev nme am Homnee fo

for equitably tolling § 2244(d)'s limitation period because a
prisoner claiming actual innocence is not "rare and exceptional. "

See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert.

denied, 531 U.S. 1035 (2000). Many courts have simply assumed,
without deciding, that actual innocence can apply to excuse the
delay because they go on to find that actual innocence is not

sufficiently alleged or shown. See Holloway, supra (collecting

cases); Thomas, supra (same). It is this last approach that will

be taken here.

In order to demonstrate a fundamental miscarriage of
justice, a petitioner must show that "a constitutional violation
has probably resulted in the conviction of one who is actually

innocent." Murray v. Carrier, 477 U.S. 478, 495-96 (1986). To

satisfy this standard, a petitioner must not only "support his
allegations of constitutional error with new reliable evidence--
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence--that was not
presented at trial," but also "show that it is more likely than
not that no reasonable juror would have convicted him in light of
the new evidence." Schlup v. Delo, 513 U.S. 298, 324, 327

(1995). Accord United States ex rel. Weston v. Clark, 101

F. Supp. 2d 685, 689 (N.D. Tll. 2000); United States ex rel.

Lucas _v. Welborn, 89 F. Supp. 2d 976, 982 (N.D. T1ll. 1999).

- 18 -



§ 2244(d) did not go into effect until April 24, 1996. If not
otherwise tolled, the one-year period would be measured from
April 24, 1996, not March 12, 1996. Fernandez v. Sternes, 227
F.3d 977, 978 (7th Cir. 2000); Villazana, 1999 WL 342384 at *2.
The November 1999 motion to file a late petition for leave to
appeal was denied and therefore could not extend the accrual
date. See Fernandez, 227 F.3d at 979.9 As of March and April
1996, Tate's first post-conviction petition was already pending
and therefore the one-year period for filing his federal petition
was tolled. Instead, the one-year period of § 2244 (d) (1) (A)
began to run upon the May 7, 1996 affirmance of the denial of the
first post-conviction petition.*° Thereafter, Tate had one year
to file a federal habeas corpus petition, that is until May 7,
1997. No federal habeas corpus petition having been filed by
that time, the time for seeking federal relief expired on that
date unless the time period was further tolled or one of the

other subdivisions of § 2244 (d) (1) applies.

°Even if that motion had been granted, at most it would
probably only have tolled the time period beginning on the
November 29, 1999 filing of the motion, which would already have
been too late. See Fernandez, 227 F.3d at 979-81.

‘Although Tate had a further 21 days to seek leave to
appeal to the Illinois Supreme Court, he filed no such petition
and therefore his first post-conviction petition had no further
tolling effect because it was not pending during that 21-day
period. See Gutierrez v. Schomig, 233 F.3d 490, 491-92 (7th Cir.
2000) (tolling does not occur during period in which a petition
for certiorari could have been filed, but was not). See also
Owens, 235 F.3d at 357.



United States District Court, Northern District of Illinois

Ni signe pitting if Or
rae Magitate Tudor WILLIAM T. HART han rsigned Judge
CASE NUMBER 01 2275 pATE| OCTOBER 7.9, 2001
CASE TIMOTHY TATE v. MARK PIERSON
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:

(69) 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 briefdue___.

(4) Oo Ruling/Hearingon___esetfor_— at

(5) im} Status hearing[held/continued to] [set for/re-set for]on___—ssetfor_—_at

(6) a Pretrial conference[held/continued to] [set for/re-set for]on____setfor__——at__—S.
(©) o Trial[set for/re-set for]on__at

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__—_at

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

OFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) 0 FRCP41(a)(2).

(0) Wl [Other docket entry] Petitioner's motion for leave to file a reply to respondent's reply is granted. Respondent's
motion to dismiss [15-1] is granted. The Clerk of the Court is directed to enter judgment in favor of respondent and
against petitioner denying the petition for writ of habeas corpus. If petitioner wishes to appeal this order, he must file a
Notice of Appeal to the U.S. Court of Appeals for the Seventh Circuit with the Clerk of the Court, U.S. District Court
for the Northern District of Illinois, 219 S$. Dearborn St., 20th Floor, Chicago, IL 60604, within 30 days of the entry of
the judgment in this case. Any notice of appeal should also be accompanied by a request for a certificate of
appealability, including a statement as to why a certificate should issue. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b).

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

No notices required, advised in open

court. 2

No notices required. umber of notices

oY | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices. aN)

Y | Mail AO 450 form.

Peal

Copy to judge/magistrate judge. ;
aserr og ee S Zo
gi ocT 23 Fil See scenes
courtroom
ow deputy’s um
initials
Date/time received in ee
central Clerk’s Office mailing initials



conviction petition. See generally 725 ILCS 5/122-1, 122-3.
Instead, successive post-conviction petitions are denied on res
judicata or waiver grounds or considered on the merits in
situations where the claimed error could not have been raised in
earlier proceedings or the petitioner otherwise shows cause and
prejudice. See People v. Jones, 191 Ill. 2a 194, 730 N.E.2d 26,

28-29 (2000), cert. denied, 121 S. Ct. 885 (2001); People v.

Caballero, 179 Ill. 2d 205, 688 N.E.2d 658, 661 (1997). It was
on this basis that the trial court denied the second post-
conviction petition and the Illinois Appellate Court affirmed.
Thus, Tate's situation is like that in Artuz, having his petition
denied on grounds of res judicata and waiver. ‘Tate's situation
certainly does not involve the failure to satisfy a prefiling
requirement as in Tinker. Tate's successive post-conviction

petition was "properly filed."

“In United States ex rel. Villatoro v. Briley, 2001 WL
1155281 *3-4 (N.D. Ill. Sept. 28, 2001), the court held that
denial of a successive post-conviction petition on the ground
that it did not meet the exception for filing more than one post-
conviction petition is a dismissal based on a procedural bar and
therefore makes the successive post-conviction petition not
properly filed. Today's ruling respectfully disagrees, finding
Villatoro to be inconsistent with Artuz, 121 S. Ct. at 365, which
holds that procedural bar defenses such as res judicata and
waiver do not make a state collateral attack not properly filed.

*The time for Tate filing a post-conviction petition
would have expired in 1997, three years after his conviction,
unless he alleged facts showing that the delay was not due to his
culpable negligence. 725 ILCS 5/122-l(c). However, since the
second post-conviction petition was not denied on timeliness
grounds, it cannot be considered that the petition was improperly

-1l1l-


Tinker, 255 F.3d at 445. See also Rice v. Bowen, 264 F.3d 698,

700 (7th Cir. 2001). In Artuz, a person convicted in the state

courts of New York had his second state court collateral attack
on his conviction denied on the ground that it raised issues
previously determined on the merits and issues that could have
been raised on direct appeal. The Supreme Court held that such
"procedural bars" as grounds for dismissal did not prevent the
collateral attack from being properly filed as to its form of
delivery to the court. Artuz, 121 S. Ct. at 363-65.

Tinker was distinguishable from Artuz and is also
distinguishable from Tate's situation. Tinker involved a person
convicted in the state courts of Indiana who filed a second state
court post-conviction petition. Similar to persons convicted in
federal court (see 28 U.S.C. § 2255, 2244) and state prisoners
seeking federal habeas corpus relief (see 28 U.S.C.
§ 2244 (b) (3)), Indiana requires state convicts to obtain leave of
an appellate court before filing a successive post-conviction
petition. Ind. Post-Conviction R. 1(12); Tinker, 255 F.3d
at 446. Tinker holds that failure to obtain such leave is a
prefiling requirement, the absence of which precludes a
successive post-conviction petition in Indiana from being
properly filed. Id. at 445-46.

Unlike Indiana, Illinois does not require that a state

prisoner obtain leave of court before filing a successive post-

- 10 -


(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.

On direct appeal, the Illinois Appellate Court's decision
was entered on February 20, 1996. Tate had 21 days to either
petition for leave to appeal to the Illinois Supreme Court or
give notice of his intention to do so. See Ill. Sup. Ct. R.

315(b). Since he did neither within that time period, his direct

appeal became final on March 12, 1996. See United States ex rel.

Thomas v. Welborn, 2000 WL 1831548 *2 (N.D. Ill. Dec. 13, 2000);

United States ex rel. Villazana v. Page, 1999 WL 342384 *2 (N.D.

Ill. May 11, 1999).* However, the one-year limitation period of

®In Owens v. Boyd, 235 F.3d 356, 357 (7th Cir. 2000), the
court added 35 days as the maximum allowable time to petition for
leave to appeal. However, the 35 days only comes into play if an
affidavit of intent is filed within 21 days. Since Tate did not
file the affidavit of intent, his conviction became final when
the 21-day period expired. In any event, whether 21 or 35 days,
there is no effect on the issues presently before the court
since, as discussed below, the April 24, 1996 effective date of
the limitation period and the length of the applicable tolling
period are the key measuring dates, not when in March 1996 the
direct appeal became final.


not want to participate in the case and related ineffective
assistance of appellate counsel. An affidavit from Sellers was
attached to the petition. On July 12, 1995, the trial court
summarily dismissed the post-conviction petition on the grounds
that it was without merit and frivolous.?3

Tate was represented by the Public Defender on appeal,
but the Public Defender moved to withdraw on the ground that

there were no appealable issues. See generally Pennsylvania v.
Finley, 481 U.S. 551 (1987); Anders v. California, 386 U.S. 738

(1967); Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000), cert.

denied, 121 S. Ct. 2549 (2001). Ina two-page brief containing

no elaboration, cf. Wilkinson, 231 F.3d at 349, the Public

Defender moved to withdraw on the ground that "(t]he petition
fails to allege any facts that give rise to a claim of
constitutional deprivation. Mere conclusory allegations, x
unsupported by affidavits, are insufficient to warrant further
proceedings." On May 7, 1996, stating that it had carefully
reviewed the record and briefs, the Illinois Appellate Court

granted the motion to withdraw and affirmed the dismissal of the

petition.‘ The Appellate Court expressly addressed the merits of

*The trial court's statement in court incorrectly refers
to Tate having pleaded guilty.

‘This unpublished order of the Illinois Appellate Court
is provided as Exhibit E to respondent's answer to the habeas
corpus petition and will hereinafter be referred to as "Tate II.”


person doing the shooting. I do not know who

were the people doing the shooting but I surely

know it was not Timothy Tate.

Tate does not address this issue in his own affidavit
which he has attached to the federal habeas petition. Monltson's
affidavit does not specifically state when he first communicated
with Tate or an intermediary. In the habeas petition itself,
Tate alleges that Monltson was noted as a witness in police
reports, but that he does not know if the police reports detailed
his possible testimony. He further alleges that trial counsel
failed to contact Monltson. Additionally, Tate alleges:
"Petitioner was able to locate Mr. Monltson through the exercise
of due diligence after petitioner discovered, from reliable
source, that Mr. Monltson had eyewitnessed the shooting. ..

Mr. Monitson became involved in this case after petitioner
located him and was able to secure an affidavit not until May 13,
1999." Petition at 27-28.

It is the actual or putative knowledge of the pertinent
facts themselves that starts the clock running under
§ 2244(d)(1)(D). Owens, 235 F.3d at 359. Accrual does not await
the collection of evidence supporting the facts, including

possible supporting affidavits. Flanagan _v. Johnson, 154 F.3d

196, 198-99 (Sth Cir. 1998). Tate identifies the date of
Monltson's affidavit, but does not state when he learned the

underlying fact of what Monltson's testimony would be. Moreover,

- 14 -


eetanecasa AT: 9 Nae ein it

“

limited legal knowledge and abilities, has limited access to

legal materials because of his incarceration, and did not jearn

of the one-year limitation period until shortly before he filed
his federal habeas corpus petition. Section 2244(d)'s limitation
period is not jurisdictional and may be subject to equitable

tolling in limited circumstances. See Taliani v. Chrans, 189

F.3d 597, 598 (7th Cir. 1999); Owens, 235 F.3d at 360; Johnson,
265 F.3d at, 2001 WL 1028055 at *4, However, since § 2244(d)
contains its own tolling provisions, any judicially created
tolling doctrines must be narrow and consistent with those

already incorporated in § 2244(d). Equitable tolling "may be

available when some impediment ofa variety not covered in

§ 2244(d) (1) prevents the filing of a collateral attack. " Owens,
235 F.3d at 360. Accord Johnson, 265 F.3d at __, 2001 WL
1028055 at *4. As has been noted by the Seventh Circuit in the
context of equitable tolling, "habeas relief, by definition, is
almost always sought by an incarcerated petitioner." Johnson,
265 F.3d at __, 20001 WL 1028055 at *5, Proceeding pro _ se with
limited legal skills and limited access to legal materials is not
an exceptional circumstance for a habeas petitioner. Absent
extraordinary circumstances, such conditions will not be a basis
for equitably tolling § 2244(d)'s limitation period. See id.
Tate does not allege such extraordinary circumstances. Equitable

tolling will not be applied.

~ 16 -



Following his conviction and sentencing, Tate pursued a
direct appeal before the Illinois Appellate Court. On direct
appeal, Tate was represented by the Public Defender. He argued
that the court should have given an accomplice witness
instruction regarding Sellers' testimony and that the sentence
was excessive in light of his age and background. On
February 20, 1996, the Illinois Appellate Court affirmed the
conviction and sentence.? Tate did not timely seek leave to
appeal to the Illinois Supreme Court. Instead, more than three
years later, on November 29, 1999, he moved to file a late
petition for leave to appeal. on February 1, 2000, that motion
was denied.

During the meantime, Tate was pursuing other avenues of
relief. On May 4, 1995, while his direct appeal was still
pending before the Illinois Appellate Court, Tate filed a pro se
petition for post-conviction relief in the Circuit Court. In
that petition, Tate raised issues concerning (a) trial counsel's
alleged ineffective assistance in failing to present three
witnesses who would have testified that Sellers admitted he was
the one who actually shot the victim; (b) prosecutorial
misconduct related to Sellers' testimony; and (c) failure of the

court to disqualify a juror who lived near the shooting and did

*This unpublished order of the Illinois Appellate Court
is provided as Exhibit B to respondent's answer to the habeas
corpus petition and will hereinafter be referred to as "Tate I."


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

TIMOTHY TATE,
Petitioner,
v. No. 01 C 2275

MARK PIERSON,

Respondent.

pocuer””

oct 3 0 200!

MEMORANDUM OPINION AND ORDER

In 1994, following a jury trial in the Circuit Court of
Cook County, Illinois, Timothy Tate was found guilty of first
degree murder. The murder occurred in July 1991, when Tate was
15 years old. Stanley Sellers, who had been with Tate and two
others at the time of the murder, testified that Tate was the one
who shot the victim. Tate was tried as an adult and sentenced to
39 years' incarceration. After exhausting his state court
remedies, Tate, proceeding pro se, filed his present federal
petition for a writ of habeas corpus. Respondent moves to
dismiss on the ground that the petition is untimely.* See 28

U.S.C. § 2244(d).

*Petitioner's motion for leave to file a reply to
respondent's reply will be granted and that brief has been
considered.


While respondent's "properly filed" argument lacks merit,
his alternative contention is meritorious. Under § 2244(d) (2), a
post-conviction petition tolls the limitation period only while
the post-conviction petition is "pending" in the state court.
Johnson v. McCaughtry, 265 F.3d 559, 2001 WL 1028055 *2 (7th Cir.
Sept. 7, 2001); Gutierrez, 233 F.3d at 492; Fernandez, 227 F.3d
at 979-80. Since the second post-conviction petition was not
filed until September 1999, it was not pending until then and
therefore did not begin tolling the limitation period until
September 1999. See Johnson, 265 F.3d at ___+ 2001 WL 1028055 at
*3. At that point, Tate's § 2244(d)(1) (A) limitation period for
filing his federal habeas corpus petition had already expired.
Taking into account the appropriate tolling periods under
§ 2244(d) (2), Tate's federal habeas corpus petition was not filed
within § 2244 (d) (1) (A)'s one-year limitation period.

Tate still offers other bases for finding his petition to
be timely or otherwise cognizable. He contends his federal
petition was timely because of equitable estoppel and may also be
contending that his federal petition is timely because brought

within one year of newly discovered evidence (see 28 U.S.C.

filed because untimely. Rice, 264 F.3d at 700; Johnson v.
McCaughtry, 265 F.3d 559, 2001 WL 1028055 *3 (7th Cir. Sept. 7,
2001); Jefferson v. Welborn, 222 F.3d 286, 288 (7th Cir.

2000). In any event, as explained in Rice, 264 F.3d at 700-01,
Tllinois's not-culpable-negligence exception may have precluded
the possibility of finding Tate's second post-conviction petition
to be improperly filed because untimely.

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Tate conclusorily alleges due diligence, but does not provide any
facts supporting that he exercised due diligence. Tate has not
adequately alleged or supported that he did not and could not
learn of Monltson's potential testimony until May 13, 1999. Cf.

Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525

U.S. 891 (1998); Neuvendorf v. Graves, 110 F. Supp. 2d 1144, 1155
(N.D. Iowa 2000). An insufficient basis exists for concluding
that Issue 6 is timely because brought within a year of when the
pertinent facts were and could have been discovered.“

Tate also contends the limitation period should be

equitably tolled because he has been proceeding pro se, has

MEven if this claim were found to be timely, it lacks
merit. Monltson's affidavit is contradictory, or at least
ambiguous. He states that he heard shots and saw persons
running, not that he witnessed the shooting itself, yet he also
states that he knows Tate was not the one shooting. Based on the
affidavit, Monltson could only testify that he did not see Tate
at the shooting; he cannot conclusively rule out Tate's
involvement. Another witness did testify at trial that she did
not see Tate present and that she saw someone else chasing the
victim. See Petition at 22 {citing testimony of Antonia Jacobs
at 1104-06, 1119). See also Tate I, at 9. Also, the affidavit
of Sellers, on which Tate places heavy reliance, indicates that
Sellers did the actual shooting, but also implicates Tate as an
accomplice. This affidavit is dated November 1, 1993. A
statement of Sellers dated August 11, 1993 was discussed or
presented at trial. The August 1993 statement retracts a prior
statement implicating Tate as the triggerman. At trial, Sellers
testified that he provided the August 1993 statement under gang
pressure and that the facts contained therein were false. See
Tate I, at 3. But even if the November 1993 affidavit of Sellers
were accepted as true, Tate would still be guilty of the murder
on an accountability theory. Cf. Tate II, at 3. There is no
reasonable probability that trial counsel interviewing Monltson
would have affected the outcome of the trial.

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