statute of limitation period. This it clearly cannot do.

Accordingly, because 612 days clapsed between the date on which the time for seeking
direct review expired and the filing of Pickens’ properly filed post-conviction petition and
roughly 344 days elapsed between the date on which the Supreme Court of Illinois denied his
petition for leave to appeal the denial of his post-conviction petition and date of his filing of his
habeas corpus petition, totaling 956 days, the Court holds that the instant petition must be

dismissed as untimely.

CONCLUSION
For the above reasons, the Court grants Respondent's motion to dismiss on the basis of

untimeliness. This case is hereby terminated.

SO ORDERED ENTERED: 3// A Oy :

HON. RONALD A, GUZM
United States Judge



provides that “[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” does not come into play because
the one-year statute of limitation had already cxpired before Petitioner filed his post-conviction
petition

In Johnson v. MeCaughtry, prior to his filing of his habeas corpus petition, a petitioner
lodged two improperly filed post-conviction petitions and then finally brought a properly filed
post-conviction petition arguing ineffective assistance of trial and appellate counsel which was
addressed by the state courts on the merits. 265 F.3d 559, 564-65 (7th Cir. 2001), cert. denied,
535 U.S, 937 (2002). The Seventh Circuit rejected petitioner’s argument that because the state
court cventually reached the merits of the third and the only properly filed post-conviction
petition, the statute of limitation should toll all of the intervening time between the start of the
limitation period and the filing of his third properly filed post-conviction petition. /d.

Bound by the Johnson court’s holding, this Court holds that Pickens’ properly filed post-
conviction petition, which he filed 612 days aftcr the beginning of the one-year limitation period,
does not scrve to toll all of the intervening time between the start of the limitation period and the
filing of his post-conviction petition in which he argued ineffective assistance of trial counsel.
As the Johnson court stated: “Under this rationale, a petitioner could file a petition years afler
the limitations period expired, so long as the state court eventually entertained it on its merits.
This would allow a petitioner to successfully circumvent the statute of limitations period.” Jd. at
564, If this Court were to toll the intervening time between May 18, 1997, the date marking the
expiration of the time to seek direct review, and January 21, 1999, the date on which his post-

conviction petition was properly filed, it would be allowing petitioner to circumvent the one-year

3



Minone Ordos Form (08/97)

Aye

United States District Court, Northern District of Hlinois

Name of Assigned Judge Sitting Judge If Other
or Magistrate Judge Ronald A. Guzman than Assigned Judge
CASE NUMBER 03 C 6479 DATE 3/19/2004
CASE USA ex rel TERRANCE PICKENS vs. JOLIN BATTLES
TITLE
Un the following box (a) indicate the party filing the motion, ¢.g., plaintitt, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,
DOCKET ENTRY:
ay Oo Filed motion of [ use listing in “Motion” box above.]
(2) oa Brief in support of motion due
(3) o Answer bricf to motion duc . Reply to answer brief due.
(4) qo Ruling/Hearing on___ssetfor__.___att .
(3) Qo Status hearing[held/continued to} [set for/re-set for] on set for at
(6) Oo Pretrial con ference[held/continued to] [svt for/re-set for] on set for at
(7) Oo Trial[set for/te-set for]on__ at
(8) o (Bench/Jury trial] [Hearing] held/continued to_____at
(9) a This case is dismissed | with/without] prejudice and without costs[by/agreement/pursuant Lo}
OOFRCP4(m) OlLocal Rule 41.1 OFRCP4I(aX1) OO FRCP41(a)(2).
qo) ff [Other dacket entry) © ENTER MEMORANDUM OPINION AND ORDER: the Court grants
Respondent’s motion to dismiss Pickens’ petition for a writ of habeas corpus on the ground that the
petition is untimely. This case is hereby terminated.
(i) [For further detail see order attached Lo the original minute order.]
No notices required, advised in open court. Document
Number
No notices required, umber of notiguy
Notices mailed by judge's staff. MAR 9 9 mad
Notified counsel by telephone. ize docketed
Y | ocketing to muil notices. Hy
Jv | Mail AO 450 form. bokethid deputy inital Cy
Copy to judge/magistrate judge
courtroom 7 at dave gutiled notice
TRK deputy's oo
initials
TDate/time received in
central Clerk's Office nailing deputy initials



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

United State of America ex rel.
TERRANCE PICKENS, e tats)
Pace
Petitioner, 8 . 5 0h

vy. Judge Ronald A. Guzman

JOHN BATTLES, Warden, 03 C 6479

illinois River Correctional Center,

weer ve eS

Respondent.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Terrance Pickens’ petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as untimely
pursuant to 28 U.S.C. § 2244(d)(1). For the following reasons, the Court grants Respondent's
motion to dismiss Pickens’ petition for a writ of habeas corpus on the ground that the petition is

untimely.

FACTUAL BACKGROUND

On April 18, 1997, Petitioner pleaded guilty to one count of first degree murder in the
Circuit Court of Cook County and was sentenced to a fifty-year prison term. People v. Pickens,
No, 95 CR 24581 (Apr. 18, 1997). Petitioner did not file a direct appeal following his guilty
plea and sentence. (Pet. Habeas at 2.)

On January 21, 1999, Petitioner filed a post-conviction petition in the Circuit Court of
Cook County, which, on January 20, 2000, was dismissed. (/d, at 3.) Petitioner appealed, and

on February 5, 2002, the Illinois Appellate Court affirmed the trial court’s dismissal order. Cd.)

O



On June 17, 2002, Petitioner filed a petition for leave to appeal to the Illinois Supreme Court,
which was denied on October 2, 2002. (/d.) On September 12, 2003, Pickens’ pctition for writ
of habeas corpus was received by the Clerk of the U.S. District Court for the Northem District of

Tllinois. (/d. at 1.)

DISCUSSION

Respondent has moved to dismiss Petitioncr’s petition solely on the grounds that the
petition is barred by the statute of limitations, Pursuant to 28 U.S.C. § 2244(d)(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 time begins to run from the latest of
certain categories of dates, only one of which arguably applies in the instant case, /.c., the date
the state court judgment became final by the conclusion of direct review or the expiration of time
for seeking such review. 28 U.S.C. § 2244(d)(1)(A).

As stated above, Petitioner did not file a direct appeal following his guilty plea and
sentence. The time for direct review (i.¢., the filing of a notice of appeal to the Ilinois Appellate
Court) expired on May 18, 1997, 30 days after April 18, 1997, the date on which Petitioner
pleaded guilty. See ILL. S. Cr. R. 604(d). Respondent argues that section 2244(d)(1)’s onc-ycar
limitations period began on May 18, 1997, and hence, Petitioner's right to petition for writ of
habeas corpus expired on May 18, 1998. Because Petitioner did not file his petition until
September 12, 2003, Respondent argues that Pickens’ petition is time-barred. The Court agrees.

The plain language of section 2244(d)(1)(A) provides for a one-year limitation period,
and the clock started licking on May 18, 1997. The clock kept ticking and time ran out before

Petitioner filed his post-conviction petition. Accordingly, 28 U.S.C. § 2244(d)(2), which

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