575 days passed between the date his conviction became final and the date he ultimately filed his
petition for a writ of habeas corpus. It is important to note that this calculation excludes all time
during which the petitioner was litigating his properly filed post-conviction petitions. See Smith
v, Walls, 276 F.3d 340, 344 (7th Cir. 2002) (“a successive petition that is later dismissed as
procedurally barred is ‘properly filed’ as long as it conforms to Illinois’ formal filing
requirements”).

Because the statute of limitations began to run on September 12, 1997, by the time
Serrano filed his first petition for post-conviction review on March 17, 1998, 185 days of the one
year statute of limitations had already elapsed. In addition, another 20 days elapsed between the
order of the Illinois Appellate Court affirming the denial of his first post-conviction petition and
the filing of his second post-conviction petition on August 19, 1999. Furthermore, viewing the
evidence in the light most favorable to Serrano, another 156 days elapsed between the Illinois
Appellate Court’s affirmation of the denial of Serrano’s second post-conviction petition on
September 21, 2000 and his motion to file a late petition for leave to appeal to the Illinois
Supreme Court on March 9, 2001. These 156 days include the days the statute of limitations was
tolled while his petition for relief from judgment was pending in the state court. Lastly, after
Serrano’s motion to file a late petition for leave to appeal to the Illinois Supreme Court was
denied on June 29, 2001, Serrano permitted an additional 214 days to elapse before he filed this
habeas corpus petition. In total, Serrano permitted 575 days to elapse before filing his petition
for a writ of habeas corpus, thus exceeding the one year statute of limitations allowed by law.
Accordingly, the motion to dismiss must be granted as the petition for habeas corpus is not
timely pursuant to 28 U.S.C. § 2244(d)(1). Thus, we will not address the merits of Serrano’s

petition,



STANDARD OF REVIEW
In his motion to dismiss, Respondent Hockaday argues that Serrano’s petition for writ of
habeas corpus is time-barred by the one year statute of limitations found in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1). The AEDPA states
that the running of the statute of limitations period begins at the occurrence of one of four
events:

(A) the date on which the judgment becomes final by the conclusion of direct review or
the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). AEDPA also contains a tolling provision that states that “the 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).
DISCUSSION

Respondent argues that Serrano’s petition for writ of habeas corpus should be dismissed
because Serrano failed to file his petition before the one year statute of limitations expired.
Respondent asserts, and we agree, that the statute began to run on September 12, 1997, when the
Illinois Appellate Court affirmed his conviction and sentence, since Serrano failed to timely file

a direct appeal to the Illinois Supreme Court. Serrano’s petition is untimely because a total of


%
s

CONCLUSION
For the foregoing reasons, the Respondent’s motion to dismiss Serrano’s petition for a
writ of habeas corpus [Docket # 21-1] is granted because he failed to file the instant petition
within the one year statute of limitations required by the Antiterrorism and Effective Death
Penalty Act. This case is terminated. This is a final and appealable order.

It is so ordered.

p )
Ode Ox
Wayne R. Andersen
United States District Judge

Dated: 2-20-03



Minute Gedsr Form (06/97)

4540

United States District Court, Northern District of Ilinois

nin Magistrate Judge Wayne R. Andersen “than Assigned Sudge

CASE NUMBER 02 C 1950 DATE 2/20/2003
CASE U.S.A. ex rel Pedro Serrano vs. Dennis Hockaday
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:

(i) Oo Filed motion of [ use listing in “Motion” box above.]

(2) im} Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue__.

(4) Qo Ruling/Hearing on setfor______at

(5) oO Status hearing[held/continued to) [set for/re-set for] on set for at.

(6) a Pretrial conference[held/continued to} [set for/re-set for] on setfor_ at.

(7) Oo Trial[set for/re-set forlon__——sat_—

(8) a (Bench/Jury trial] [Hearing] held/continuedto___—_at

(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OOFRCP41(a)(1) CI FRCP41(a)(2).

do) {Other docket entry) | ENTER MEMORANDUM OPINION AND ORDER: the Respondent’s

motion to dismiss Serrano’s petition for a writ of habeas corpus [21-1] is granted because he failed to file
the instant petition within the one year statute of limitations required by the Aniterrorism and Effective

Death Penalty Act. This case is terminated. This is a final and appealable order.

al)

[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.

Y | Docketing to mail notices.

¥ | Mail AO 450 form.

Copy to judge/magistrate judge.

initials

courtroom
TBK deputy’s

iz =

umber of notices

Daie/time received'in
central Clerk's Office

FEB 2 1 9993

date docketed,

eal deputy initials

date mailed notice

mailing doputy initials



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

EASTERN DIVISION
UNITED STATES OF AMERICA ex rel. »)
PEDRO SERRANO, )
)
Plaintiff, ) a eee
) No. 02 C 1950"
)
)
v. )
) ‘Wayne R. Andersen
DENNIS HOCKADAY, ) District Judge
)

Respondents )

MEMORANDUM OPINION AND ORDER

This case is before the Court on the motion of Respondent Dennis Hockaday to dismiss
the petition for a writ of habeas corpus filed by Petitioner Pedro Serrano. For the following
reasons, the motion is granted.

BACKGROUND

Petitioner Pedro Serrano is currently incarcerated at the Western I!linois Correctional
Center. In 1996, a jury found Serrano guilty of murder and attempted murder, and the judge
sentenced him to concurrent prison terms of fifty and fifteen years. Serrano appealed his
conviction and sentence to the Illinois Appellate Court, which affirmed on September 12, 1997.
People v. Serrano, No. 96-1477, Ill. App. Ct. (1st Dist. Sept. 12, 1997). Instead of exercising
his right to appeal this decision to the Tlinois Supreme Court, Serrano filed his first petition for
post-conviction relief on March 17, 1998. In holding that the petition was frivolous and patently
without merit, the Circuit Court of Cook County denied Serrano’s first post-conviction petition

on May 5, 1998. Serrano then timely appealed the denial of his post-conviction petition to the

2>


Illinois Appellate Court. The State Appellate Defender, who was appointed to represent Serrano,
filed a motion for leave to withdraw as appellate counsel, pursuant to Pennsylvania v. Finley,
481 U.S. 551, 107 S.Ct. 1990 (1987), because he viewed the appeal as frivolous. The Illinois
Appellate Court granted the motion to withdraw and affirmed the Circuit Court’s decision on
July 29, 1999. People v. Serrano, 1-98-2120, Ill. App. Ct. (1st Dist. July 29, 1999). The Illinois
Supreme Court granted Serrano’s motion to file a late petition for leave to appeal, but then
denied that petition on May 31, 2000.

On August 19, 1999, Serrano filed a second petition for post-conviction relief in the
Circuit Court of Cook County. The second post-conviction petition was denied by that Court on
September 30, 1999 when it found that his claims were either res judicata or waived. In his
appeal of that decision to the Illinois Appellate Court, his appointed counsel once again filed a
motion to withdraw pursuant to Finley, which was granted. On September 21, 2000, the Illinois
Appellate Court affirmed the judgment of the Circuit Court of Cook County, asserting that there
were no appealable issues resulting from the denial of Serrano’s second post-conviction petition.
Serrano also filed a petition for relief from judgment in the Circuit Court of Cook County on
September 21, 2000, which was denied on October 21, 2000. Although Serrano did not appeal
that denial to the Illinois Appellate Court, he did file another motion to file a late petition for
leave to appeal to the Illinois Supreme Court on March 21, 2000, which was allowed. On June
29, 2001, however, the petition was denied.

Serrano filed a petition for writ of habeas corpus in this Court on January 30, 2002. In

his petition, Serrano raises several constitutional claims, none of which is a claim of innocence.