petitions filed after April 23, 1997). Allen therefore had until April 23, 1997, to file his federal
habeas unless the statute of limitations was tolled.

As noted earlier, the limitations period is tolled when a properly filed application for stale
post-conviction or other collateral review is pending. Allen filed his petition for post-conviction
reliefon March 28, 1995, and it was not dismissed until February 11, 1999. Allen undoubtedly had
a state post-conviction pending for all these years; however, it will not toll the statute of limitations
unless it was “properly filed.”

[A]n application is “properly filed” when its delivery and acceptance are in

compliance with the applicable laws and rules governing filings. These usually

prescribe, for example, the form of the document, the time limits upon its delivery,

the court and office in which il must be lodged, and the requisite filing fee.... But in

common usage, the question whether an application has been “properly filed” is quite

separate from the question whether the claims contained in the application are

meritorious and free of procedural bar. .

Artuz v. Bennett, 531 U.S. 4, 8 (2000) (internal citations and footnote omitted); see also Smith vy.
Walls, 276 F.3d 340, 344 (7" Cir. 2002) (holding that a successive post-conviction petition that is
later dismissed as procedurally barred is “properly filed” if it complies with the state’s formal filing
requirements). In Illinois, if'a state court concludes that a post-conviction petition is untimely, that
petition is not “properly filed,” and thus, the one year limitations period is not tolled during the
pendency of that petition. See Gray v. Briley, 305 F.3d 777, 779 (7" Cir. 2002).

The Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 (1994), which was in effect
when Allen filed his post-conviction petition, provided in pertinent part:

No procecdings under this Article shall be commenced more than 6 months after the

denial of a petition for leave to appeal or the date for filing such a petition if nonc is

filed or issuance of the opinion from the Illinois Supreme Court or 6 months after the

date of the order denying certiorari by the United States Supreme Court or the date
for filing such a petition if none is filed or 3 years from the date of conviction,



not know that the Illinois Appellate Court would decide that a filing for rchearing of certiorari
would not toll the limitations period for filing his post-conviction. From the time Allen filed his
post-conviction on March 28, 1995, 24 continuances were entered before the state’s attorney filed
a motion to dismiss on March 13, 1998, on grounds that the post-conviction was untimely and was
without merit. (Respondent’s Exhibits G and 1.) This may have been the first date on which Allen
was on notice that his petition was untimely, a date already beyond his federal deadline of April 23,
1997. Even so, as noted earlier, the Tllinois Appellate Court determined that Allen offered no facts
to show that the delay was not due to his own culpable negligence.

Allen, however, was not at the mercy of the overburdened circuit court system. When the
federal deadline loomed, Allen could have filed a “precautionary federal petition” within the most
conservative measure of the one-year period. Brooks, 279 F.3d at 524-25 (7" Cir. 2002); Freeman
v. Page, 208 F.3d 572, 577 (7" Cir. 2000); Tinker v. Hanks, 172 F.3d 990 (7" Cir. 1999). The
district court could then have stayed the federal petition for the duration of Allen’s pending post-
conviction proceedings, and Allen would not have mn afoul of AEDPA. See, ¢.g., Freeman, 208
F.3d at 577; U.S. ex rel. Erickson v. Schomig, 162 F.Supp.2d 1020, 1050-51 (N.D.1I1.2001).

In fact, when the April 23, 1997, deadline approached, federal district courts were inundated
with these “precautionary habeas petitions” from prisoners who did not want to chance their
opportunity to file a federal habeas on the hope that their pending state proceedings would be
deemed “properly filed.” Many petitioners have lost their opportunity to seek federal relief while

awaiting the outcome ofa state petition that is eventually determined to be improperly filed. Allen’s

petition is one such unfortunate case because he pinned his hopes on his state post-conviction



(Respondent’s Exhibit N.) Allen filed the instant federal petition for a writ of habeas corpus on May
29, 2002.

On September 16, 2002, the court ordered respondent to give a limited response as to whether
or not equitable tolling should apply because it had taken four years for the circuit court to decide
Allen’s petition for post-conviction relief. Allen, on the other hand, had filed all petitions, appeals,
and the like within a reasonable time of the various courts’ decisions.

TIT. Analysis

Section 2244(d)(1) of AEDPA provides that “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.” 28 U.S.C. § 2244(d)(1). The limitations period tolls while “a properly filed application for
state post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending, ...” In order to toll the statute of limitations, a post-conviction petition must be “properly
filed,” which means it must comply with formal filing requirements, such as the “form of the
document, the lime limits upon its delivery, the court and office in which it must be lodged, and the
requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).

Allen’s remedics on direct appeal were final when the United States Supreme Court denied
his petition for rehearing on the denial of his petition for writ of certiorari on October 3, 1994.
Because the AEDPA’s one-year statute of limitations did not become effective until April 24, 1996,
the Seventh Circuit recognized a one-year grace period for filing federal habeas, that is, April 23,
1997. See Gendron v. Ahitow, 154 F.3d 672, 675 (7" Cir. 1998); cert. denied sub nom. Ahitow v.

Glass, 526 U.S. 1113 (1999); Lindh v. Murphy, 96 F.3d 856, 866 (7 Cir. 1996) rev'd on other

grounds, 521 U.S. 320 (1997) (the § 2244(d) statute of limitation applies to all habeas corpus



whichever is later, unless the petitioner alleges facts showing that the delay was not
due to his culpable negligence.

In People v. Allen, 322 Iil.App.3d 724, 750 N.E.2d 257, 255 Tll.Dec. 676 (2001), the Illinois
Appellate Court thoroughly dissected this provision as it applied to Allen. The Illinois Appellate
Court held that, according to the plain language of the statute, after the United States Supreme Court
denies a defendant's petition for writ of certiorari, neither the filing of a petition for rehearing from
the denial of certiorari, nor the expiration of time in which such a petition could be filed, nor the
denial of such a petition, delays the commencement of the six-month limitations period for
petitioning for post-conviction relief, In other words, Allen had six months from May 2, 1994, when
the United States Supreme Court denied certiorari to file his post-conviction petition. Allen filed
his post-conviction petition on March 28, 1995, after the six months had expired, It is true that he
filed his petition less than six months after the United States Supreme Court denied his petition for
rehearing on October 3, 1994, but the Tinois Appellate Court determined that this was not the date
on which Allen’s six-month limitations period began to run. Federal courts must defer to a state’s
interpretation of its own statutes, See City of Chicago v. Morales, 527 U.S. 41 (1999).

Moreover, the Illinois Appellate Court considered only whether Allcn’s post-conviction was
timely, and it is the last court that has spoken as to Allen’s state appeals. It did not consider the
merits of Allen’s claims. The Illinois Appellate Court deemed Allen’s post-conviction petition to
be untimely. Although in doing so, it dealt with the language of Illinois’s post-conviction statute,
it never reached the merits of Allen’s petition. As the United States Supreme Court stated in Carey
v. Saffold, 536 U.S. 214, 122 §.Ct. 2134, 2141 (2002), a clear ruling from the state court that a

filing was untimely would “be the end of the matter,” even if the court also addressed the merits of



petition that was ultimately found to be untimely, Under these circumstances, the court finds that
the statute of limitations cannot be equitably tolled.
IV. Conclusion

For the foregoing reasons, the court finds that equitable tolling does not apply and grants

respondent’s motion to dismiss. This petition is dismissed with prejudice as time barred.
IT 1S SO ORDERED.

DATED: February 18, 2002 ENTERED

Cora LAE

AMY 3.81) E
United Stale/District Court Judge



Minute Order Farm (06/97)

United States District Court, Northern District of Ilinois

Name of Assigned Judge AMY J. ST. EVE Sitting Judge if Other
or Magistrate Judge _— than Assigned Judge
CASE NUMBER 02 C 3838 paTe| FEB 18 2003
CASE U.S. ex rel, Harvey Allen v, Stephen D. Mote
TITLE
[ln the following box (u) indicate the party filing the motion, o.g,, plaintif¥, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(1) a Filed motion of { use isting in “Motion” box above.]
(2) Oo Bricf in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due
(4) oO Ruling/Hearing on set for at. _
(3) Oo Status hearing[held/continued to] [set for/re-set for] on set for Cd
(6) O Pretrial conferencefheld/continued to] [set for/re-set for] on set for al :
(7) Oo Trial[set for/re-set for] on at
(8) ia [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) OC General Rule2h OFRCP41{a)(1) OO FRCP41(a)(2).
ao) [Other docket entry] ‘The court grants respondent’s motion to dismiss [14] and dismisscs this
petition with prejudice as time barred. Status hearing set for March 4, 2003, is stricken.
ad) ff [For further detail see attached Memorandum and Order.)
No notices required, advised in apen court. ;
No notices required. swnnber of actions
Notices mailed by judge’s statf.
Notified counsel by telephone date ducketed
X_ | Docketing to inail notices, 1H
X | Mail Ao 450 form. . ot 2 deny pot
Copy to judge/mupistrute judge ,
dose mailed notice
courtroom Cut ics
CLH deputy’s a
initials
Date/time,reccived in *
central Clerk's Office inating depuly botials



the claim or if “its timeliness ruling was ‘entangled’ with the merits.” See also Gray v. Briley, 305
F.3d 777 (7" Cir. 2002); Brooks v. Walls, 301 F.3d 839 (7 Cir, 2002).

Because Allcn’s petition for post-conviction rclief was not “properly filed,” il did not toll the
statute of limitations. Accordingly, Allen’s federal petition for a writ of habeas corpus is untimely.

Allen could argue that the reason his federal habcas is untimely is not because of him but
because it took the circuit court almost four years to decide his post-conviction petition. For
example, ifthe circuit courl had decided the petition within two years of filing, approximately March
25, 1997, then Allen would have been on notice that his post-conviction was untimely and would
have had time to meet the one-year grace period. The court will accordingly consider whether
equitable tolling should apply to Allen’s petition.

Under the judge-made doctrine of “cquitable tolling,” the court may excuse Allen’s failure
to file his § 2254 petition within the limitations period only if he shows that he “could not, despite
the exercise of reasonable diligence, have discovered all the information he needed in order to be
able to file his claim on time.” Yaliani v. Chrans, 189 F.3d 597, 597-98 (7" Cir. 1999). In other
words, a district court may cntertain a petition that is untimely filed when, due to extraordinary
circumstances beyond a petitioner's control, he cannot reasonably be expected to file his suit on time,
see Miller vy. Runyon, 77 F.3d 189, 191 (7" Cir. 1996), and thus the “‘principles of equity would
make [the] rigid application [of a limitation period] unfair.” Miller v. New Jersey State Dept. of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (quoting Shendock v. Dir., Office of Workers’
Compensation Programs, 893 F.2d 1458, 1462-64 (3d Cir. 1990) (en banc)).

On its face, it appears that while Allen’s post-conviction petition was pending, he did not

have all the information he needed in order to file his federal habeas on time. In particular, he did



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

EASTERN DIVISION re aannr it
i vin Bb
UNITED STATES OF AMERICA ) FER 19 2003
ex rel, HARVEY ALLEN, ) :
)
Petitioner, )
)
v. ) CASE NO, 02 C 3838
)
STEPHEN D. MOTE, Warden,! )
Pontiac Correctional Center, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge,

Harvey Allen brings this pro se petition for a wril of habeas corpus claiming that he is being
held in violation of the Constitution. Respondent Stephen D. Mote, the current warden of Pontiac
Correctional Center where Allen is incarcerated, has filed a motion to dismiss Allen's petition as
time barred. For the following reasons, respondent’s motion to dismiss is granted.

J, Standard of Review

Under 28 U.S.C. § 2254(e)(1), unless a petitioner provides clear and convincing evidence to
the contrary, a determination of a factual issue by a state court is presumed correct for the purposes
of habeas review. Todd v. Schomig, 283 F.3d 842, 846 (7" Cir. 2002).

II. Facts

Warden Stephen D. Mote is currently the Warden at the Pontiac Correctional Center and is thus
the proper respondent in this habeas action. See Rule 2(a) of the Rules Governing Habeas Corpus Cases
under 28 U.S.C. § 2254. This court hereby substitutes Mote as the respondent for his predecessor James
M. Schomig. See Fed. R. Civ. P. 25(d)(1).



On December 22, 1987, petitioner Harvey Allen, Jr., was convicted of four counts of murder
and arson. He was sentenced to natural life without the possibility of parole for the murders and to
a concurrent term of seven years for the arson. (Respondent’s Exhibit I.) On April 22, 1993, the
Illinois Appellate Court affirmed both the convictions and the sentences, (Respondent’s Exhibit A.)
On October 6, 1993, the Illinois Supreme Court denied Allen leave to appeal. (Respondent’s Exhibit
C.) On May 2, 1994, the United States Supreme Court denied Alien’s petition for writ of certiorari.
(Respondent’s Exhibit D.) On October 3, 1994, the United States Supreme Court denied a petition
for rehearing. (Respondent’s Exhibit E.)

On March 28, 1995, Allen filed a petition for post-conviction relief under the Minois Post-
Conviction Hearing Act, before the Antiterrorism and Effective Death Penalty Act (‘AEDPA”), 28
U.S.C. § 2244, et seg., went into effect. (Respondent’s Exhibit F.) On February 11, 1999, almost
four years later, the trial court denied the petition for post-conviction relicf and allowed the state’s
motion to dismiss, (Respondent’s Exhibit 1.) On May 11, 2001, the Ilhnois Appellate Court in a
published opinion, People v. Allen, 322 L_App.3d 724, 750 N.E. 2d 257, 255 Ill. Dec. 676 (2001),
affirmed the dismissal of the petition. (Respondent’s Exhibit L.) The Illinois Appellate Court held
that a petition for rehearing a denial of certiorari before the United States Supreme Court does not
extend the time for filing a post-conviction petition. Without considering the merits of the petition,
the Illinois Appellate Court dcemed the petition to be untimely. The Illinois Appellate Court also
determined that Allen had failed to proffer any explanation that the delay in filing his post-conviction
petition was not due to his own culpable negligence, Allen, 322 Ill. App. 3d at 726, 750 N.B. 2d at

260, 255 Ill. Dec. at 679, The Illinois Supreme Court denied Allen leave to appeal on April 3, 2002.