a

opinion in Artuz v, Bennett, 121 S.Ct. 361 (2000) has recently
rejected the narrow reading that a number of Courts of Appeals
had previously given to the concept of “properly filed” in
considering whether state post-conviction applications did or did
not extend the one-year limitation period via Section 2244 (d) (2):
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.

But in the course of so doing, Artuz, id. at 364 n.2 issued a

caveat as to the impact or lack of impact of that decision ina
situation such as that presented here, where the concept of ‘a
properly filed application” involves one that is flat-out late.
And our Court of Appeals has made it plain in two post-Artuz
decisions (Outlaw v. Sternes, 233 F.3d 453, 456 (7 Cir. 2000)
and Owens v. Boyd, 235 F.3d 356, 357 (7% Cir. 2001)) that the
dismissal of a state proceeding as untimely renders none of the
time during its pendency excludable.

Accordingly the one-year clock began to tick on March 10,
1999 (immediately after the expiration of the 35-day period
allowed by Ill. Sup. Ct. R. 315(b) to file a petition for leave
to appeal the Appellate Court’s February 2, 1999 dismissal

order) --Qwens, 235 F.3d at 357 so teaches. And that in turn

means that Garner’s current Petition is nearly a whole year too

late. As stated at the outset, both the Petition and this action


a

1. On January 9, 1998 the Circuit Court of the
Nineteenth Judicial Circuit, Lake County, Illinois,
dismissed Garner's petition for post-conviction relief under
725 ILCS 5/122-2.1(a) (2) “as frivolous and patently without
merit.”

2. On February 2, 1999 the Illinois Appellate Court
for the Second District (in its Case No. 2-98-0304) entered
a summary order (a) granting the motion of the State
Appellate Defender* to withdraw as counsel for Garner
pursuant to the procedure set forth in Pennsylvania v.
Finley, 481 U.S. 551 (1987) and (b) affirming the Circuit
Court’s order of dismissal.

3. On March 31, 2000 the Illinois Supreme Court (in
its Case No. 10092) entered this one-sentence order
rejecting Garner’s motion for leave to appeal the Appellate
Court’s summary order of a year earlier:

The motion by petitioner for leave to file a late
petition for leave to appeal is denied.

Thus the Illinois Supreme Court dispatched Garner’s belated
attempt to continue his pursuit of a post-conviction remedy

solely on the ground that it was indeed belated--out of time.

In that respect a unanimous United States Supreme Court

2 Although Garner had handled his post-conviction petition

pro se in the Circuit Court, the Appellate Court had appointed
the Office of the State Appellate Defender to represent him on
his appeal from the Circuit Court’s dismissal order.

3


are dismissed summarily in accordance with Section 2254 Rule 4.

Clalua © Laaaten,

Milton I. Shadur
Senior United States District Judge

Date: April 6, 2001


5
&

~ mA
Minute? Order Form (697)

United States District Court, Northern District of Illinois

&
Name of Assigned Jud; 1 Sitting Judge if O1
or Maristrate Judge Milton 1, Shadur than Assigned Judge
CASE NUMBER 01 C2274 DATE 4/6/2001
CASE USA ex rel. Christopher Garner vs. Blair Liebach
TITLE

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

of the motion being presented.

MOTION:

DOCKET ENTRY:

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

(2) im Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer briefdue___.

(4) qo Ruling/Hearingon__set for__at

(5) oO Status hearing[held/continued to] [set for/re-set for]on___setfor___—_at.

(6) im Pretrial conference[held/continued to] [set for/re-set foron____setfor__— at.
(o) ao Trial[set for/re-set for]on____at .

(8) Oo [Bench/Jury trial] [Hearing] held/continued to___—_at

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

OFRCP4(m) OC General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).

ao if {Other docket entry] | Enter Memorandum Opinion and Order. Petitioner’s motion for leave to file
in forma pauperis is denied. The appropriate authorities at the Danville Correctional Center are ordered

to remit the sum of $5, earmarked for payment in this case to the Clerk of Court. Both the
this action are dismissed summarily in accordance with Section 2254 Rule 4.

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

Petition and

No notices required, advised in open court.

No notices required.
number of notices

¥ | Notices mailed by judge’s staff,

APR 20. zon

date docketed

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

docketiny deputy Yitials

Copy to judge/magistrate judge.

41972001

L

date mailed notice

courtroom Me gpd pe
SN deputy’s SN
initials

Date/time received in

central Clerk’s Office mailing deputy initials


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

UNITED STATES OF AMERICA
ex rel. CHRISTOPHER GARNER
#B-61089,

)
)
)
Petitioner, )
v. No. O01 C 2274
BLAIR LIEBACH, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
Christopher Garner (“Garner”) has filed a self-prepared
Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C.
§2254'--self-prepared in the sense that Garner has used the form
provided by this District Court’s Clerk’s Office for such
filings, has typewritten the appropriate insertions into that
form and has attached various relevant exhibits dealing with his
prior state court filings. Because “it plainly appears from the
face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court”
(Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts (“Section 2254 Rules”)), this Court
dismisses both the Petition and this action summarily (id.).
Before this opinion turns to that subject, however, the

subject of Garner’s failure to pay the filing fee should be

addressed briefly. Although he has neither paid that fee nor

1 All further references to Title 28's provisions will
simply take the form “Section--.”

7


sought leave to proceed in forma pauperis, the modest $5 fee
required for habeas petitions obviates any need for such action
on his part. Instead this Court simply orders the appropriate
authorities at the Danville Correctional Center (where Garner is
now in custody) to remit the sum of $5, earmarked for payment in
this Case No. 01 C 2274, to:

Clerk, United States District Court

219 South Dearborn Street

Chicago IL 60604

Attention: Fiscal Department

As for the Petition itself, both the allegations in
Complaint §§8 through 10 and the attached exhibits make it clear
that Garner has “exhausted the remedies available in the courts
of the State” as required by Section 2254(b) (1) (A)). But with
that precondition having been established, there is no need for
this opinion to set out Garner’s several claims of alleged
constitutional deprivation or for this Court to determine such
matters as whether Garner has failed to meet the “cause and
prejudice” requirements established by the caselaw. Instead
Garner’s problem is that the Petition has been filed well outside
of the one-year limitation period prescribed in Section
2244(d) (1), even as extended by Section 2244 (d) (2).
Among the exhibits to the Petition are three that reflect

Garner's attempts to obtain post-conviction review and that bear

directly upon the timeliness or untimeliness of his current

Petition: