eo RRS Es it

Corp. v. Muller, 269 U.S. 207, 210 (1935)). Consequently, as long as the state court
has issued a clear finding of procedural default, the petition was improperly filed
regardless of whether the court entertained the merits. See Fernandez, 227 F.3d at 978;
Harris, 489 U.S. at 264 n.10.

In the case at bar, the trial court dismissed Spaulding’s postconviction petition
for two reasons: untimeliness and lack of merit. Applying the Seventh Circuit’s
framework, we must conclude that the clear finding of untimeliness as a matter of state
law forecloses our federal review. See Fernandez, 227 F.3d at 978. Thus Spaulding’s
postconviction petition was not properly filed, and he is not entitled to any tolling of
the statute of limitations as a result of the pendency of the petition.

As a result, we begin our calculation at the Illinois Supreme Court’s denial of
Spaulding’s Petition for Leave to Appeal on October 6, 1998.' Allowing ninety days
for the filing of a petition for certiorari to the United States Supreme Court, see
Gonzales v. DeTella, 6 F. Supp. 2d 780, 781-82 (N.D. Ill. 1998) (rev’d on other
grounds), Spaulding’s conviction became final on January 4, 1999. More than two

years later, Spaulding filed the instant petition for habeas corpus on April 20, 2001,

' Spaulding’s PLA appears not to have been timely filed, as Illinois Supreme
Court Rule 315 requires PLAs to be filed within 21 days of the resolution of the direct
appeal. However, because the Supreme Court did not enunciate its reasons for denying
the petition, we shall assume that the filing of the PLA tolled the statute of limitations,

4.


The Seventh Circuit has adopted several “straightforward” rules to assist district
courts in determining whether an application has been “properly filed.” Fernandez v.
Sternes, 227 F.3d 977, 978 (7" Cir. 2000). The question is an objective one based on
state law. Freeman v. Page, 208 F.3d 572, 576 (7" Cir. 2000). If the state court
“considered the claim on the merits, it was properly filed; if [the court] dismissed it for
procedural flaws such as untimeliness, then it was not properly filed.” Id. Asa
corollary, if the state court entertains and decides on the merits a petition that fails to
comply with state procedural requirements, the petition is “properly filed” for purposes
of tolling the statute of limitations. Fernandez, 227 F.3d at 978 (citing Jefferson v.
Welborn, 222 F.3d 286 (7" Cir. 2000)).Thus the key is to look at how the state court
treated the petition.

Awrinkle arises where the state court’s decision rests on both procedural default
and a lack of merit. In such an instance, the Seventh Circuit has held that federal
review is foreclosed “provided the finding of default is clear.” Fernandez, 227 F.3d at
978 (citing Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)). In reaching this
conclusion, the Seventh Circuit relied on the Supreme Court’s reasoning that the
“adequate and independent state ground doctrine requires the federal court to honor a
state holding that is a sufficient basis for the state court’s judgment, even when the

state court also relies on federal law.” Harris, 489 U.S. at 264 n.10 (citing Fox Film

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This date of filing falls well outside of the AEDPA’s one-year statute of limitations.

Accordingly, the instant petition is time-barred.
CONCLUSION

Because it is time-barred, we deny Spaulding’s Petition for a Writ of Habeas

Corpus.

CR Qra PC aa

Charles P. Kocoras
United States District Judge

Dated: August 24, 2001


‘Minute Order Form (06/97)

Sa
. . United States District Court, Northern District of Mlinois
Name of Assigned Judge Sitting Other
or Magheate Judge Charles P. Kocoras than Assieved Sade
CASE NUMBER 01 C 3250 DATE 8/24/2001
CASE US ex rel. Spaulding vs. Briley
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd 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) Oo Brief in support of motion due

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

(4) a Ruling/Hearingon set for_ at

(5) o Status hearing[held/continued to] [set for/re-set for]on__—setfor__——__at

(6) a Pretrial conference[held/continued to] [set for/re-set for]on__setfor__——sat__— i.
(7) o Trial[set for/re-set for]on__at

(8) im [Bench/Jury trial} [Hearing] held/continued to___at

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

OFRCP4(m) OGeneral Rule21 OOFRCP41(a)(1) [FRCP41(a)(2).

qo) «of [Other docket entry) ENTER MEMORANDUM OPINION: We deny Spaulding’s Petition for
a Writ of Habeas Corpus. All other pending motions are moot.

(dl) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

umber of notices:
Notices mailed by judge's staff.
AUG 27 2001
Notified counsel by telephone. date docketed “
| Docketing to mail notices. rv) -
v_| Mail AO 450 form.” ENT waning O |
Copy to iudge/ magistrate judge. Fils uN
i Katroom Ui HOS 24 Fi a ol date mailed noice
scr deputy’s
initials
Date/time received in
central Clerk's Office awsiting deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex rel. )
ANTHONY SPAULDING, )
Plaintiff-Appellee, } AUG 27 rag9
vs. } 01 € 3250
KENNETH BRILEY,
Defendant-Appellant.
MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:
Before the Court is Anthony Spaulding’s Petition for a Writ of Habeas Corpus.
Because the petition is time-barred, we dismiss it.
BACKGROUND
Having been convicted of two counts of first degree murder and two counts of
attempted armed robbery, Anthony Spaulding received concurrent sentences of natural
life imprisonment. Spaulding appealed the conviction, but the Appellate Court for the

First District affirmed the trial court on May 28, 1998. Later that year, on October 6,

a

the Illinois Supreme Court denied his Petition for Leave to Appeal.


seid Cees.

Spaulding then filed pro se a petition for post-conviction relief on April 13,
1999. Ruling orally on April 26, the Judge deemed the petition “untimely for one thing
and aside from that, it’s lacking merit.” (Exh. D at A4.) Spaulding’s counsel
subsequently sought leave to withdraw under Pennsylvania v. Finley, 481 U.S. 551
(1987) because Spaulding had not sought post-conviction relief within six months of
his direct appeal. The Appellate Court granted counsel’s motion to withdraw and
affirmed the trial court’s denial of the petition for post-conviction relief on April 12,
2000. On July 5, 2000, the Illinois Supreme Court denied Spaulding’s Petition for
Leave to Appeal. Spaulding filed pro se a second post-conviction petition on January
31, 2001, which the trial court denied on February 23, 2001. This habeas petition
followed on April 20, 2001.

DISCUSSION

Under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA”),
a one-year statute of limitations period applies to petitions for a writ of habeas corpus.
See 28 U.S.C. § 2244(d)(1). That limitation period runs from the date on which the
judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). During the pendency of a
properly filed application for collateral relief, the time that ensues does not count

toward the limitation period. See 28 U.S.C. § 2244(d)(2).

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