Respondent’s argument is identical to that of the state of California in Carey v. Saffold, —-
U.S. ——, 122 S. Ct. 2134 (2002). California argued that:

an application for state collateral review is not “pending” ia the state courts during

the interval between a lower court’s entry of judgment and the timely filing of a

notice of appeal (or petition for review) in the next cour: . . . [under the] rationale .

.. that... during this period of time, the petition is not under court consideration.
Saffold, 122 S. Ct. at 2138.

The United States Supreme Court rejected that interpretation of “pending” because such an
interpretation would violate the Anti-Terrorism and Effective Death Penalty Act’s goal of promoting
comity, finality and federalism “by encouraging state prisoners to fil2 federal habeas petitions before
the State completes a full round of collateral review.” Saffold, 122 S. Ct. at 2138. The Supreme
Court reasoned that “[t]his would lead to great uncertainty in the federal courts, requiring them to
contend with habeas petitions that are in one sense unlawful (secause the claims have not been
exhausted) but in another sense required by law (because they would otherwise be barred by the 1-
year statute of limitations).” Saffold, 122 S. Ct. at 2138.

Thus, the Supreme Court held that “an application is pending as long as the ordinary state
collateral review process is ‘in continuance’ — i.e., ‘until the cornpletion of that process. In other
words, until the application has achieved final resolution through the State’s post-conviction
procedures, by definition it remains ‘pending.”” Saffold, 122 S. Ct. at 2138. This includes the time
between the lower state court’s decision and the filing of a notice of appeal or petition for collateral
review to a higher state court. Saffold, 122 S. Ct. at 2133.

[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 deliver, the
court and office in which it must be lodged, and the requisite filing fee... . But in

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omitted). “For a constitutional claim to be fairly presented to a state court, both the operative facts
and the ‘controlling legal principles’ must be submitted.” Rodriguez v. Scillia, 193 F.3d 913, 916
(7th Cir. 1999). “Ifa prisoner fails to present his claims in a petition for discretionary review to a
state court of last resort, those claims are procedurally defaulted.” Rodriguez, 193 F.3d at 917 (citing
O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)).
ANALYSIS

Respondent argues that Koch’s petition for writ of habeas corpus should be dismissed
because Koch filed his petition after the one-year statute of limitations expired. Respondent argues
that the 175 days that elapsed between the date that Koch’s conviction became final,
October 19, 1998, and the date that Koch filed his post-conviction petition should be applied toward
the statute of limitations because Koch had no collateral litigation “pending” during those 175 days
which would otherwise toll the statute. Thus, Respondent argues, Koch’s habeas petition is untimely
because 410 days had passed between the date his conviction becante final and the date that he filed
his habeas petition after the exclusion of the period during which his post-conviction petition was
“pending”.

Section 2244(d)(1) provides that:

A 1-year period of limitations 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[.]

28 U.S.C. § 2244(d)(1)(A). However, “[t]he 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)(2).

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common usage, the question whether an application has bzen “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 v.
Walls, 276 F.3d 340, 344 (7th 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).

A petition for post-conviction relief will be “properly filed” if it complies with Illinois’s
formal filing requirements. The Illinois Post-Conviction Hearing Act, 725 Ill. Comp. Stat. 5/122-
1(a) (2002), provides for proceedings for imprisoned persons who assert that there was a substantial
denial of their rights under the United States or Illinois constitutions, or both, in the proceedings that
resulted in their convictions. The Post-Conviction Hearing Act also provides that such actions shall
not 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 none is filed or more than 45 days after the defendant files his

or her brief in the appeal of the sentence before the Illinois Supreme Court (or more

than 45 days after the deadline for the filing of the defendant’s brief with the Illinois

Supreme Court if no brief is filed) or 3 years from the date cf conviction, whichever

is sooner, unless the petitioner alleges facts showing that the delay was not due to his

or her culpable negligence.
§ 5/122-1(c) (emphasis added).

Koch had from the earlier of three years from the date of his conviction or six months after
the date for filing a petition for leave to appeal his conviction and sentence to the Illinois Supreme
Court to file his petition for post-conviction relief. The earlicr of the two is April 19,1999, six

months after the date for filing a petition for leave to appeal his conviction and sentence. Koch filed

his petition for post-conviction relief on April 13, 1999. Thus, his post-conviction petition was

5.



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge if other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 700 DATE 9/12/2002
CASE USA/ex rel. JAMES KOCH vs. WAR.DEN JERRY STERNES
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plainti(f, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.]

(2) i) Brief in support of motion due

(3) im Answer briefto motion due___. Reply to answer briefdue_

(4) a) Ruling/Hearingon___—s_setfor at

(5) ia Status hearing{held/continued to] [set for/re-set for]on set for_ saat

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

(8) oO [Bench/Jury trial] [Hearing] held/continued to at__

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

CERCP4(m) OlLocal Rule 41.1 OFRCP41(a)(1) O FROP+.1(a)(2).

(do) {Other docket entry} Status hearing held and continued :o 4/03 at 9:00 a.m. Petitioner’s brief to
be filed by 10/10/02. Respondent’s answer to be filed by 10/31/02. Reply to be filed by 11/14/02. Enter
Memorandum Opinion And Order. Koch’s petition for writ of habeas corpus is timely, and respondent’s
motion to dismiss is denied.

dl) [For further detail sce order attached to the original minute order.

No notices required, advised in open court.

No notices required:

| umber of pai
Notices mailed by judge’s staff. SEP T 6 rasisr

Notified counsel by telephone.

wf | Docketing to mail notices.

Mail AO 450 form. ne

Copy to judge/magistrate judge

courtroom
LG deputy’s
initials

Date/time received in
central Clerk’s Office

mailing deputy initials



“properly filed” because it complied with the formal filing requirements of the Post-Conviction
Hearing Act.

Koch’s petition for leave to appeal the denial of his petition for post-conviction relief was
denied by the Illinois Supreme Court on June 6, 2001. Koch’s “properly filed” petition for post-
conviction relief was “pending” until June 6, 2001. See Saffold, 122 S. Ct. at 2138. Thus, under
§ 2244(d)(2), the one-year statute of limitations was tolled until June 6, 2001. See Saffold, 122 S.
Ct. at 2138. Koch was required to file a petition for writ of habeas corpus by June 6, 2002. Koch
filed his original petition for writ of habeas corpus on January 28, 2002, well before the time for
filing such a petition had expired. Therefore, Koch’s petition for writ of habeas corpus is timely, and
Respondent’s Motion to Dismiss is denied.

CONCLUSION

For the reasons stated herein, Jerry Sternes’ Motion to Dismiss is denied.

vo i
John Wr Darrah, Judge

United fates District Court

IT IS SO ORDERED.

Date:

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IN THE UNITED STATES DISTRICT COURT\
FOR THE NORTHERN DISTRICT OF ELLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
ex rel. JAMES KOCH,

Case No. (2 € 700

Petitioner,

)
)
)
)
) Honorable John W. Darrah
v. )
)
WARDEN JERRY STERNES, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on prisoner James K.och’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 against Jerry Sternes (“Respondent”), Warden of the Dixon
Correctional Center in Dixon, Illinois, where Koch is in custody. Respondent has moved to dismiss
Koch’s petition as untimely. For the following reasons, Responden:’s Motion to Dismiss is denied.

BACKGROUND

Following a jury trial, Koch was convicted of first-degree murder and sentenced to thirty-five
years’ imprisonment on August 26, 1997. Koch appealed his conviction and sentence to the Illinois
Appellate Court, which was affirmed on September 28, 1998. Koch did not file a petition for leave
to appeal his conviction and sentence to the Illinois Supreme Cour:.

On April 13, 1999, Koch filed a pro se petition for post-conviction relief, which the trial
court denied on July 20, 1999. Koch appealed the denial of his petition for post-conviction relief
to the Illinois Appellate Court, which affirmed the trial court on March 2, 2001. Koch filed a

petition for leave to appeal the denial of his petition for post-conviction relief to the Illinois Supreme

pocKered

sep 18

002



Court, which was denied on June 6, 2001.

On January 28, 2002, Koch filed a petition for writ of habeas corpus. On February 15, 2002,
Koch filed an amended petition for writ of habeas corpus, raising the following grounds: (1) he was
interrogated by the police after requesting counsel in violation of the Fifth Amendment; (2) he was
denied due process when a juror slept through portions of the trial but was not replaced; (3) trial
counsel was ineffective for failing to demonstrate the victim’s propensity for violence, tender jury
instructions for involuntary and voluntary manslaughter, present exculpatory evidence, and to make
certain objections at trial.

Respondent filed a Motion to Dismiss. Counsel was then appointed to represent Koch.

LEGAL STANDARD

A federal court will not grant habeas corpus relief on any claim adjudicated on the merits by
astate court unless: (1) the state court applied a United States Supreme Court doctrine unreasonably
to the facts of the case or (2) the state court’s decision relied on a1 unreasonable reading of the facts
in light of the evidence presented. 28 U.S.C. § 2254(d) (2002). For relief based on an unreasonable
application of Supreme Court doctrine, the state court’s decision must be both incorrect and
unreasonable. Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2900).

Petitioner must satisfy two requirements to avoid procedural default before a court may reach
the merits of his habeas corpus petition: (1) exhaustion of state remedies and (2) fair presentment
of any federal claims. Spreitzer y. Schomig, 219 F.3d 639, 644 (7th Cir. 2000)(citations omitted).
A habeas corpus petitioner exhausts all state remedies when (1) he presents his claims to the highest
court for a ruling on the merits or (2) state remedies are no longer available to the petitioner at the

time his federal habeas petition is filed. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991) (citations

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