tat

provision.?

What has been said here would ordinarily call for the
granting of Warden Walls' motion and the dismissal of Santiago's
petition and this action. But up to now Santiago's able
appointed counsel, James Graham, Esq., has not been afforded an
opportunity to address the issue dealt with here. Accordingly
attorney Graham is granted leave to file in this Court's chambers
on or before April 15, 200 with a copy to be transmitted to
respondent's counsel) an appropriate filing on the subject of
timeliness. In that respect, it should of course be understood
that if attorney Graham sees no arguable avenue of escape for

Santiago, he is at liberty to follow the path marked out by

Anders v. California--without feeling any need to elaborate on

the analysis advanced by Warden Walls' counsel or stated in this

memorandum,

Milton I. Shadur
Senior United States District Judge

Date: March 28, 2003

2 No inference adverse to Gutierrez may fairly be drawn

from the Supreme Court's rejection in Clay of our Court of
Appeals' per curiam decision in Gendron v. United States, 154
F.3d 672, 674 (7 Cir. 1998), which addressed the concept of
finality of a conviction, rather than the pendency of post-
conviction efforts.



Mixge Order Form (06/97)

United States District Court, Northern District of Illinois

)

Name of Assigned Judge Milton L. Shadur Sitting Judge if Other
or Magistrate Judge * than Assigned Judge
CASE NUMBER 02 C3217 DATE 3/28/2003
CASE U.S.A. ex rel: Fabian Santiago vs. Jonathan R. Walls
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.)
Memorandum Opinion

DOCKET ENTRY:

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

(2) oO Brief in support of motion due

(3) oO Answer brief to motion due. . Reply to answer brief due,

(4) oO Ruling/Hearing on set for at

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

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) o Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

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

OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) CFRCP41(a)(2).

(10) MW [Other docketentry} Enter Memorandum Opinion . Accordingly, attorney Graham is granted leave
to file in this Court’s chambers on or before April 15, 2003 (with a copy to be transmitted to respondent’s
counsel) an appropriated filing on the subject of timeliness.

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

No notices required, advised in open court.
No notices required. somber of noes
Notices mailed by judge's staff. hh > a.
Notified counsel by teleph Pie AY 2405
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.
FABIAN SANTIAGO, B-~-79716,

)
)
)
Petitioner, )
)
v- ) No. 02 C 3217

)

JONATHAN R. WALLS, Warden, ) DOCKETED
)

Respondent. ) MAR 34 2003

MEMORANDUM

wees i

This Court's most recent (January 24, 2003) memorandum in
this action placed on hold, pending the United States Supreme

Court's decision in Clay v. United States, Dkt. No. 01-1500, the

motion to dismiss that had been filed by respondent Warden
Jonathan Walls. Although Clay did not pose in direct fashion the
issues presented by the Warden's motion, the then-expected
imminence of that decision suggested prudence in waiting to see
whether anything said there might cast light on the matters
before this Court.

On March 4 the Clay decision came down (71 U.S.L.W. 4155).
Its discussion was limited to the includability of the time for
seeking certiorari in fixing the date when a judgment of
conviction becomes final (thus starting the one-year limitations

clock ticking under 28 U.S.C. §2255' for federal prisoners, just

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



as it does under Section 2244(d) (1) for state prisoners seeking
federal habeas relief. Nothing in the discussion in Clay
provides added insight as to the controlling issues here.

It therefore appears that the Warden's motion to dismiss is
well taken:

1. After the May 4, 1999 date of finality of the
direct appeal by petitioner Fabian Santiago (“Santiago”)
from his state court conviction (a date that takes into
account the time within which he could have sought, but did
not seek, certiorari) and before the August 9, 1999 filing
of his state court post-conviction petition, 97 days ran on
the one-year time clock.

2. Between the June 22, 2001 date on which the
Illinois Appellate Court rejected Santiago's appeal relating
to his post-conviction petition and the May 2, 2002 filing
date of his Section 2254 petition here, another 314 days
elapsed.

That second calculation does not credit Santiago for any time
within which he could have sought, but did not seek, further
review of the Appellate Court's turndown--a matter controlled by
our Court of Appeals' decision in Gutierrez v. Schomig, 233 F.3d
490 (7** Cir. 2000) as to when a post-conviction application is

“pending” for purposes of the Section 2244(d) (2) tolling