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Petitioner,


CHARLES HOWARD,





MARCUS HARDY, Warden,




Respondent.



v.





Case No. 13-cv-1014


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E-FILED
Tuesday, 30 July, 2013 11:37:33 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

O R D E R & O P I N I O N



This matter is before the Court on Petitioner Charles Howard’s Petition for

Writ of Habeas Corpus (Doc. 1) and Respondent Marcus Hardy’s Motion to Dismiss

Habeas Petition (Doc. 16). Petitioner has filed a Response to the Motion (Doc. 18).

For the following reasons, Respondent’s Motion to Dismiss is granted, and

Petitioner’s Petition for Writ of Habeas Corpus is dismissed.

PROCEDURAL HISTORY



Petitioner was convicted of armed robbery in January 1996. 1 (Doc. 16-1 at 3).

In February 1996, the trial court sentenced Petitioner to a term of life in prison.

(Doc. 16-1 at 4). Petitioner appealed, arguing that his right to a speedy trial had

been violated, and that his counsel was ineffective. (Doc. 16-2 at 4). The state

appellate court affirmed the trial court’s decision on June 30, 1997. (Doc. 16-2 at 4).

Petitioner did not appeal that decision to the highest state court. (Doc. 1 at 2).


1
In his Petition, Petitioner lists his conviction date as April 21, 1995. (Doc.
1 at 1). Petitioner apparently confused the date of his conviction in Illinois with
that of a separate conviction in Michigan, which was in April 1995. (See Doc. 16-
2 at 1-3).

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Petitioner had previously been convicted of a separate crime in Michigan in 1995,

and was serving a sentence of ten to twenty years in a Michigan prison. (Doc. 16-2

at 1). Therefore, at the time Petitioner was charged in Illinois, he was in the custody

of the state of Michigan, and was only temporarily in Illinois for the court

proceedings related to his Illinois charges. (Doc. 16-2 at 2-3). Following Petitioner’s

conviction in Illinois, Petitioner returned to Michigan to carry out his ten to twenty

year sentence there. It was not until 2006 that Petitioner was released from prison

in Michigan. Petitioner’s incarceration in Illinois began March 2, 2006. (Doc. 18 at

2-3).



In December 2009, approximately twelve years following the state appellate

court’s decision, Petitioner filed a petition for postconviction relief. (Doc. 16-2 at 4).

The trial court dismissed Petitioner’s postconviction petition on February 8, 2010,

finding his claims lacked merit and were frivolous, and that Petitioner “failed to

state the gist of a constitutional claim.” (Doc. 16-2 at 5). On September 16, 2011, the

state appellate court affirmed the dismissal. (Doc. 16-2 at 1). Petitioner then filed a

Petition for Leave to Appeal (“PLA”) to the Illinois Supreme Court, which was

denied on January 25, 2012. People v. Howard, 963 N.E.2d 248 (Table) (Ill. 2012).



DISCUSSION



On December 19, 2012, Petitioner filed the instant Petition for Writ of

Habeas Corpus by a Person in State Custody, raising four claims. (Doc. 1 at 1, 5-9).

First, Petitioner argues that his right to a speedy trial was violated because more

than 180 days passed between Petitioner’s indictment and his trial. (Doc. 1 at 5-7).

Second, Petitioner argues that his counsel was ineffective, and thus violated his



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Sixth and Fourteenth Amendment rights by: 1) failing to communicate with

Petitioner and review discovery materials with him; 2) failing to properly cross-

examine or impeach state witnesses; 3) failure to raise the speedy trial issue to the

trial court; 4) failing to argue that the line up in which Petitioner was identified was

improper; and 5) not being present during the lineup. (Doc. 1 at 5). Third, Petitioner

argues that his sentence is void because he was improperly classified as a habitual

offender. (Doc. 1 at 8). Lastly, Petitioner argues that his counsel at trial and on

direct appeal was ineffective for not raising the habitual offender issue. (Doc. 1 at

8).



On February 23, 2013, Respondent filed the instant Motion to Dismiss the

Petition, arguing the Petition is untimely under 28 U.S.C. § 2244(d). (Doc. 16). The

Court agrees that the Petition is untimely, and thus grants Respondent’s Motion to

Dismiss.

I. Timeliness of the Petition for Writ of Habeas Corpus



Under § 2244(d)(1), a one-year statute of limitations applies to the filing of a

habeas corpus petition by a person in custody pursuant to the judgment of a state

court. This limitations period begins on “the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking such

review.” 2 28 U.S.C. § 2244(d)(1)(A).


2
period:

Section 2244(d)(1) lists three other possible start dates for this limitations

(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;



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Following his conviction, Petitioner appealed to the state appellate court. The

appellate court affirmed the judgment of his conviction on June 30, 1997. (Doc. 1 at

2). Following the state appellate court’s decision, Petitioner did not file a PLA. (Doc.

1 at 2). A PLA must be filed within twenty-one days of the state appellate court’s

judgment. Ill. S. Ct. Rule 315(b) (1996). 3 Therefore, Petitioner’s conviction became

final on July 21, 1997, and Petitioner had one year from that date to file a timely §

2254 petition. 28 U.S.C. § 2244(d)(1)(A).



A pending postconviction petition can toll the statute of limitations for filing

a § 2254 petition: “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 the one-year period of limitations. 28 U.S.C.

§ 2244(d)(2). Petitioner filed a postconviction petition on December 9, 2009,

approximately twelve years after the date of final judgment. (Doc. 1 at 2-3).

However, a postconviction proceeding that is not filed until after the federal period

of limitations has expired cannot toll the limitations period. DeJesus v. Acevedo, 567

F.3d 941, 943 (7th Cir. 2009). Therefore, Petitioner’s postconviction petition did not

toll the statute of limitations for filing a § 2254 petition, as the period of limitations


(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
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). Petitioner does not assert that any of these are applicable in
the present case, and none appear to be.
3
This twenty-one-day deadline was changed to thirty-five days pursuant to
a February 2006 amendment, effective July 1, 2006. In 1997, the twenty-one-
day deadline was applicable.



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for such a petition had expired in 1998, long before the postconviction petition was

filed. Thus, the Court finds that the instant Petition is untimely.

II. Equitable Tolling



In his Response, Petitioner argues that the Motion to Dismiss should be

denied in spite of the Petition’s untimeliness because “exingent [sic] circumstances .

. . hindered his ability to follow all procedural procedures.” 4 (Doc. 18 at 1). To

support this claim, Petitioner sets forth numerous circumstances he feels justify his

delay: 1) he did not have access to Illinois case law, procedures, or contact

information for Illinois attorneys until 2006; 2) his court-appointed trial attorney

did not discuss procedures with him; 3) Petitioner’s appellate counsel only

corresponded with Petitioner by mail, and did not explain procedures or PLAs to

Petitioner; 4) Petitioner could not afford an attorney and thus had to rely on the

prison law library and other inmates for legal information; 5) Petitioner filed a

postconviction petition after “diligently pursuing assistance,” but the petition was

denied; 6) appellate counsel did not discuss untimeliness with Petitioner; 7)

4
In addition to arguing that exigent circumstances prevented Petitioner
from filing a timely petition, Petitioner argues that the judgment against him is
void, and thus the statute of limitations for filing a § 2254 petition does not
apply in his case. A judgment is void if it is entered by a court lacking proper
jurisdiction over the case, and can be “attacked at any time, in any court . . .
provided that the party is properly before the court.” People ex rel. Brzica v.
Village of Lake Barrington, 644 N.E.2d 66, 69-70 (1994).

In his Petition, Petitioner says that he was not given proper notice of the
State’s intent to enhance Petitioner’s sentence, and that the trial court thus did
not have jurisdiction over his case. (Doc. 1 at 8). This alleged error did not
deprive the trial court of jurisdiction, nor did it render the court’s judgment
void; ordinary mistakes in the application of law do not void a judgment.
Petitioner’s meritless argument would effectively erase the statute of
limitations from § 2244(d)(1), as all habeas petitions allege mistakes of the sort
Petitioner now claims. Therefore, the Court rejects Petitioner’s argument that
his void-judgment claim is not time-barred.



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Petitioner filed a PLA, which was denied in January 2012; 8) Petitioner is “law

illiterate” and “must put his trust in others to do the right thing and guide him;”

and 9) Petitioner tried filing a § 2254 Petition in August 2012, but it was not

properly completed and was returned to him. (Doc. 18 at 2-5).



Although Petitioner has not explicitly mentioned equitable tolling, the Court

construes the statements made in Petitioner’s Response as an argument that

equitable tolling should be applied. However, the Court finds that equitable tolling

is not justified here.



In Holland v. Florida, the Supreme Court held that equitable tolling applies

in § 2254 cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). “Generally, a

[petitioner] seeking equitable tolling bears the burden of establishing two elements:

(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). To

justify equitable tolling, the extraordinary circumstances must be “far beyond the

[petitioner’s] control.” United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.

2000). The diligence necessary for equitable tolling is “reasonable diligence.”

Holland, 130 S. Ct. at 2565 (internal quotation marks omitted).



The Seventh Circuit “rarely deem[s] equitable tolling appropriate,”

Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003), and has previously set forth a

number of circumstances that do not justify equitable tolling. In Modrowski, the

court found that the negligence or non-responsiveness of a petitioner’s attorney does

not amount to an extraordinary circumstance justifying equitable tolling. Id. at 967-

68. “The rationale is that attorney negligence is not extraordinary and clients, even



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if incarcerated, must ‘vigilantly oversee,’ and ultimately bear responsibility for,

their attorneys’ actions or failures.” Modrowski, 322 F.3d at 968 (quoting Johnson

v. McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001)). Furthermore, a lack of legal

knowledge does not justify equitable tolling. Montenegro v. United States, 248 F.3d

585, 594 (7th Cir. 2001); Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008).



The Seventh Circuit has not yet definitively ruled on whether an inadequate

law library is extraordinary for the purpose of equitable tolling. Moore v. Battaglia,

476 F.3d 504, 507 (7th Cir. 2007); but see Tucker, 538 F.3d at 735; Jones v. Hulick,

449 F.3d 784, 789. Petitioner argues that while in Michigan, he had no access to

Illinois case law or legal materials. (Doc. 18 at 2).

Even if the Court were to assume that lack of access to an adequate law

library were an extraordinary circumstance justifying equitable tolling, tolling

would still not save Petitioner’s Petition. Assuming that the statute of limitations

for filing a § 2254 petition was tolled during the time Petitioner was incarcerated in

Michigan, the statute of limitations would only have been tolled until March 2,

2006, when Petitioner was transferred to an Illinois prison. Petitioner does not

argue that the prison law library in Illinois was inadequate, and in fact mentions

that he utilized the law library’s resources. (Doc. 18 at 3). Petitioner would have had

until March 2007 to file a § 2254 petition, or to file a postconviction petition, which

could again toll the statute of limitations. See 28 U.S.C. § 2244(d)(2). Petitioner did

not file a postconviction petition until December 2009. (Doc. 1 at 3). Therefore, the

postconviction petition did not toll the statute of limitations for filing a § 2254

petition, even taking possible equitable tolling into account, as that limitations



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period would have ended in March 2007. See 28 U.S.C. § 2244(d)(2). Equitable

tolling on the basis of inadequate legal materials, even if it were applied here,

would not render the instant Petition timely.

Moreover, the other circumstances Petitioner feels should justify equitable

tolling are not extraordinary. His lack of legal knowledge does not justify equitable

tolling, as it is not extraordinary. Montenegro, 248 F.3d at 594; Tucker, 538 F.3d at

735. Further, the alleged inadequacies of his attorneys at both the trial court and

appellate court levels are not extraordinary so as to justify equitable tolling. In

Holland, the Supreme Court stated that “garden variety” claims of attorney neglect,

or simple mistakes on the part of an attorney, are not extraordinary enough to

justify equitable tolling. Holland, 130 S. Ct. at 2564. Instead, “serious instances of

attorney misconduct,” such as failing to respond to a client over a period of years

and denying a client information regarding his case, may justify tolling. Id. The

mistakes Petitioner alleges do not seem to go beyond “garden variety.” Petitioner

does not argue that he had no contact with his attorneys, and does not contend that

he was denied updates on his case. (Doc. 18 at 2). The alleged inadequacies of

Petitioner’s attorneys at both the trial court and appellate court levels do not justify

equitable tolling, because Petitioner ultimately had the responsibility of overseeing

his attorneys’ actions. Modrowski, 322 F.3d at 967-68. Also, the filing of delayed or

untimely petitions is not an extraordinary circumstance that would justify tolling.



Additionally, Petitioner has not shown that he pursued his rights diligently

as required to justify equitable tolling. A delay of over a decade from the time

Petitioner’s conviction became final to the time he filed a postconviction petition,



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and a further delay of approximately eleven months between the dismissal of

Petitioner’s postconviction petition and the time he filed the instant § 2254 Petition,

does not demonstrate diligence. (Doc. 1 at 2-3); see Lee v. Cook Cnty., Ill., 635 F.3d

969, 972-73 (7th Cir. 2011) (finding that a filing delay of almost three times the

allowed ninety-day time limit did not amount to diligence for purposes of equitable

tolling).

Furthermore, even if lack of access to an adequate law library were an

extraordinary circumstance that could justify equitable tolling, Petitioner has not

demonstrated that he diligently pursued his rights, and thus equitable tolling does

not apply. The tolling standard requires both the existence of some extraordinary

circumstance and that the petitioner diligently pursued his rights. Pace, 544 U.S. at

418. Petitioner does not argue that he lacked access to an adequate law library as of

March 2006. Yet, assuming that the limitations period was tolled until March 2006,

Petitioner still waited over three years from that date to file a postconviction

petition, and then delayed filing the instant Petition until 2012. (Doc 1 at 2-3).

Petitioner has not demonstrated that he diligently pursued his rights such that

equitable tolling should apply. Further, Petitioner pointing out that he filed other

delayed or untimely petitions does not demonstrate that he had been diligently

pursuing his rights. Thus, Petitioner has not met the diligence requirement of

equitable tolling.

Neither Petitioner’s attorneys’ alleged inadequacies, nor Petitioner’s lack of

legal knowledge are extraordinary as required for equitable tolling. Additionally,

lack of access to relevant legal materials, even if extraordinary, would not save the



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instant Petition. Further, Petitioner has not shown that he pursued his rights

diligently. Therefore, Petitioner has failed to satisfy the requirements of equitable

tolling, and the instant § 2254 Petition is untimely.

CERTIFICATE OF APPEALABILITY



Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court

“must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” Under 28 U.S.C. § 2253(c)(1), a petitioner may only

appeal from the court’s judgment in his habeas case if he obtains a certificate of

appealability. A certificate of appealability may only be issued where the petitioner

“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). This requirement has been interpreted by the Supreme Court to mean

that an applicant must show that “reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Where the district court denies a habeas petition on

procedural grounds, a petitioner must make a showing that reasonable jurists

“would find it debatable whether the district court was correct in its procedural

ruling.” Id. at 484. If the district court denies the request, a petitioner may request

that a circuit judge issue the certificate. Fed. R. App. P. 22(b)(1).



Based upon the record before it, the Court cannot find that reasonable jurists

would debate the Court’s procedural ruling that the Petition is untimely.

Accordingly, a certificate of appealability is DENIED.







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CONCLUSION

For the foregoing reasons, Respondent’s Motion to Dismiss (Doc. 16) is

GRANTED. The Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED, and

the Court DECLINES to issue a Certificate of Appealability.











Entered this 30th day of July, 2013.

s/ Joe B. McDade

JOE BILLY McDADE


United States Senior District Judge







































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