AEDPA’s one-year statute of limitations began running not in November 2001 when the
appellate court affirmed the dismissal of his state post-conviction petition, but rather in August
1999, when the time to file a petition of certiorari in the United States Supreme Court on direct
appeal expired. Rivas thus had until August 31, 2000 to file his federal habeas corpus petition,
but he did not do so until March 17, 2003, almost two and a half years later.

In response Petitioner argues that: (1) he has an adequate excuse for his delay in filing his
post-conviction petition because he allegedly received the denial of his PLA late; (2) the state
court improperly found untimeliness in the first instance without the benefit of a responsive
pleading from the State; (3) his post-conviction petition should be considered “properly filed”
because the state court rested its decision on both procedural grounds (untimeliness) and the
merits when it noted in its conclusion that the petition was “frivolous and patently without
merit”; and (4) any procedural default should be excused by his actual innocence or otherwise
equitably tolled.

We may easily dispense with Rivas’s first two arguments. The Illinois appellate court
held that Rivas’s allegations of a lack of culpable negligence in his filing delay were insufficient.
We will not disturb this state-court finding because, as noted above, whether a petition was
properly filed depends on state law and in this case the state courts applied Iinois law in
determining that Rivas’s delay was not excusable. Turning to Petitioner’s second argument,
although it is true that after the Illinois Supreme Court’s decision in People v. Boclair, 789
N.E.2d 734 (Il. 2002), a trial court may not sua sponte make findings of untimeliness in the first
instance on a post-conviction petition, the Illinois Supreme Court has explicitly held that its

pronouncement in Boclair was not to be applied retroactively. See People v. Britt-El, 794 N.E.2d


instant the state court rejected his petition as untimely.” Jd. Thus, Rivas is not entitled to
equitable estoppel in this instance.
CONCLUSION
For the foregoing reasons, we grant Respondent’s motion to dismiss, (R. 11-1) and
dismiss Rivas’s petition for a writ of habeas corpus, (R. 1-1). The Clerk is instructed to enter

final judgment pursuant to Federal Rule of Civil Procedure 58 against Petitioner.

ENTERED: IZ Ze

Judge Ruben Castillo
United States District Court

Dated: February 23, 2004


negligence. On March 17, 2003, Rivas filed his petition for a writ of habeas corpus in this Court.
28 U.S.C. § 2254.
ANALYSIS

Respondent argues that Rivas’s § 2254 petition is untimely under 28 U.S.C. § 2244(d)(1),
which imposes a one-year filing deadline for federal habeas corpus petitions. The one-year
statute of limitations begins to run from the latest of several events. As relevant here, the
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.” 28 U.S.C. § 2244(d)(1)(A).
But under the statute, “(t]he time during which a properly filed application for State post-
conviction or other collateral review . . . is pending shall not be counted toward any period of
limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

In this case whether the Illinois state courts properly determined that Rivas’s post-
conviction petition was untimely weighs heavily on the issue of whether Rivas’s § 2254 petition
is time-barred in this Court. That is, if Rivas’s post-conviction was untimely under the Ilinois
statute, it was not “properly filed” for purposes of tolling the one-year statute of limitations under
§ 2244(d). Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir. 2000) (holding that whether a
petition is “properly filed” depends on state law); see also Freeman v. Page, 208 F.3d 572 (7th
Cir. 2000). Respondent argues, and we agree, that because Rivas’s state post-conviction petition
was not submitted in a timely manner in conformance with Illinois law, it cannot constitute a
“properly filed” petition that confers the tolling benefit of § 2244(d)(2) on his federal habeas
corpus petition. See Brooks v. Walls, 279 F.3d 518, 521 (7th Cir. 2002) (noting that “[a]

collateral attack that is untimely under state law is not ‘properly filed”). Therefore, in this case,



204, 210 (Ill. 2002). Therefore, Rivas may not rely on the Boclair rule because his petition was
decided prior to that ruling.

Rivas next argues that his post-conviction petition should be considered “properly filed”
because the state court rested its decision on both procedural grounds and on the merits. As an
initial matter, we cannot conclude that the state court’s decision rested on dual grounds; it is clear
from the circuit court’s order that it based its decision to deny post-conviction relief on the
ground that the petition was untimely and that the appellate court affirmed the circuit court’s
decision on that same ground. The fact that the circuit court also mentioned in its conclusion that
Rivas’s petition was “frivolous and patently without merit” does not transform that decision into
a merits-based one. In fact, the Seventh Circuit has explicitly rejected a petitioner’s challenge to
a state court’s denial of post-conviction relief on the ground that although the court expressly
held that his petition was untimely, it also conducted a review on the merits when it “cast .. a
sidelong glance at the merits in order to determine whether to excuse failure to meet the
deadline.” Brooks, 279 F.3d at 521. The petitioner in Brooks argued that any cursory
consideration of the merits amounted to a decision on the merits, which meant that the “state
judiciary considered the petition to be ‘properly filed’ even if the state courts say that the filing
was untimely.” /d. But the Seventh Circuit concluded, relying on the Supreme Court’s decision
in Harris v. Reed, 489 U.S. 255 (1989), as well as prior circuit precedent, that if the state’s
decision rests on both a procedural default and a lack of merit, then federal review is foreclosed.
Id. (citing Harris, 489 U.S. at 264 n.10); see also Fernandez, 227 F.3d at 978 (holding so that if
a state court accepts and entertains a petition on the merits it has been ‘properly filed’ but that if

the state court rejects it as procedurally irregular it has not been ‘properly filed”); Jefferson v.


Minute Order Form (06/97)

»

“SAD

United States District Court, Northern District of Illinois

Aa ssi 5 5
Name of Assigned Judge ‘ Sitting Judge if Oth
vor Magistrate Judge Ruben Castillo than Assigned Judge
CASE NUMBER 03 C 2164 DATE 2/23/2004
CASE Milton Rivas vs. Jerry Sternes, Warden, Dixon Correctional Center
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
MOTION: of the motion being presented,
DOCKET ENTRY:
a)) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Qo Answer brief to motion due, . Reply to answer brief due
(4) Qo Ruling/Hearing on set for at
(5) oO Status hearing{held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at
(0) a Trial[set for/re-set for] on at
(8) o (Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) OLocal Rule 41.1 COFRCP41(aX(1) O FRCP41(a)(2).
(10) Ml [Otherdocketentry] Enter Memorandum Opinion and Order. Respondent’s motion to dismiss [11-!
1] is granted and Rivas’s petition for a writ of habeas corpus is dismissed. Judgment is entered in favor;
of the respondent, Jerry Sternes and against petitioner, Milton Rivas. This case is hereby dismissed with
prejudice.
(1) so [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.
Notices mailed by judge's staff.
Notified counsel by telephone.
oY | Docketing to mail notices.
a | Mail AO 450 form. sn
Copy to judge/magistrate judge. 1ynod rn ea sas
date mailed novice i
utr a
Ro spay bas] Wy 2 @a3 |
initials - wa H
Crewe iced nal dy



Wellborn, 222 F.3d 286 (7th Cir. 2000).? Thus, even if we were to construe the circuit court’s
fleeting reference to the merits to constitute a dual ground of decision, we nevertheless would
hold that federal review is foreclosed.

Finally, Petitioner asserts that his “actual innocence” should permit this court’s review of
his § 2254 petition. As a corollary, he hints that his § 2254 petition should be equitably tolled.
But we do not believe that the circumstances of his case warrant equitable tolling. As an initial
matter, equitable tolling is only available “when extraordinary circumstances far beyond the
litigant’s control prevented timely filing.” Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003)
(internal citations and quotations omitted); Santiago v. Hinsley, No. 03 C. 9029, 2003 WL
23018575, at *2 (N.D. Ill. Dec. 19, 2003). In noting the rarity of the doctrine’s application, the
Seventh Circuit has stated that it has “yet to identify a circumstance that justifies equitably tolling
in the collateral relief context.” Modrowski, 322 F.3d at 967. Like the petitioner in Brooks,
Rivas knew from the circuit court’s April 2000 ruling that his post-conviction petition had been
deemed untimely, thus he was on notice that he should file a “precautionary federal petition” in
case the appellate court agreed with the circuit court’s view. Brooks, 279 F.3d at 524. Rivas was

not misled and should have discerned that the “clock was ticking” under § 2244(d) “from the

? Relying on Rice v. Bowen, 264 F.3d 698 (7th Cir. 2001), Rivas urges us to apply a rule
that when a state court gives two grounds for decision, one procedural and one touching on the
merits, the procedural ground is disregarded and the petition is treated as “properly filed” for
purposes of § 2244(d). Rice, 264 F.3d at 701-02 (citing Dictado v. Ducharme, 244 F.2d 724 (9th
Cir. 2001)). But in its later Brooks opinion, the Seventh Circuit declined to read Rice as
embracing the Dictado rule, because doing so would effectively overrule prior cases, including
Fernandez and Jefferson, which apply the Harris rule in the § 2244(d) context. Brooks, 279 F.3d
at 522. Brooks controls our inquiry here, so we decline Rivas’s invitation to apply the Ninth
Circuit’s Dictado rule to his petition.


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

EASTERN DIVISION DOCKETED

MILTON RIVAS, ) FEB 2 4 2004
)
Petitioner, ) No. 03 C 2164
)
v. ) Judge Ruben Castillo FER 9
242004
JERRY STERNES, Warden, )
Dixon Correctional Center, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

Presently before the Court is Respondent Jerry Sternes’s motion to dismiss Petitioner
Milton Rivas’s petition for a writ of habeas corpus as time-barred under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). For the reasons set forth below, Respondent’s
motion is granted, (R. 11-1), and Rivas’s petition is dismissed with prejudice, (R. 1-1).

RELEVANT FACTS

Rivas is currently incarcerated at the Dixon Correctional Center in Dixon, Illinois and is
serving a twenty-five year sentence for delivery of a controlled substance. Petitioner’s conviction
and sentence were affirmed on direct appeal. Rivas filed a timely petition for leave to appeal
(“PLA”) in the Illinois Supreme Court, which was denied on June 2, 1999. He did not seek a

writ of certiorari from the United States Supreme Court.

28



On March 23, 2000,' Rivas filed a post-conviction petition in the Circuit Court of Cook
County. See 725 ILCS 5/122-1, et seq. The circuit court denied Rivas’s petition in April 2000 as
untimely under state filing deadlines. Specifically, the circuit court noted that Hlinois law
requires that a post-conviction petition be filed within six months from the Illinois Supreme
Court’s denial of a petition for leave to appeal or within three years from the date of conviction,
whichever occurs sooner, unless the petitioner alleges facts establishing that the delay was not
due to his culpable negligence. 725 ILCS 5/122-1(c). The circuit court concluded that because
Rivas’s petition for leave to appeal to the Illinois Supreme Court was denied on June 2, 1999, he
had until December 2, 1999 to commence his post-conviction petition. (R. 10, Resp’t’s Exs., Ex.
F.) Rivas’s petition, filed in late March 2000, was untimely. Although in its order the circuit
court primarily focused on the untimeliness issue, it also noted in the conclusion of the order that
the issues raised by Rivas were frivolous and patently without merit. (Id.)

Rivas appealed to the Illinois Appellate Court, which affirmed the circuit court’s decision
in an order issued on November 19, 2001. Again, the appellate court specifically affirmed the
circuit court’s determination that Rivas’s petition was untimely and noted that Rivas’s

allegations were insufficient to establish that his delay was not the result of his own culpable

' Rivas averred that he filed his post-conviction petition in January 2000, but the circuit
court did not receive his petition until March 2000. Although Rivas’s notarized affidavit of
filing and mailing were dated January 2000, another affidavit appended to Rivas’s petition was
notarized in March. The Illinois courts concluded on this basis that Rivas had sent his petition in
March 2000. In any event, these dates become irrelevant because even if the Illinois courts had
treated his filing date as January 2000, his petition still would have been untimely because, as
noted below, the filing deadline for his post-conviction petition actually expired in December
1999.