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Case: 1:13-cv-03973 Document #: 7 Filed: 06/04/13 Page 1 of 4 PageID #:30

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

EASTERN DIVISION

Petitioner,

UNITED STATES OF AMERICA ex rel.)
DECORY DEVELL FRANKLIN #R28072, )
)
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MICHAEL LEMKE, Warden,

Respondent.

v.

No. 13 C 3973

MEMORANDUM OPINION AND ORDER

Decory Devell Franklin (“Franklin”) has just filed a 28

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U.S.C. §2254 Petition for Writ of Habeas Corpus (“Petition”) in
which he challenges his February 25, 2004 conviction on a charge
of attempted First Degree Murder, on which he is currently
serving a 50-year sentence. As is most often the case with state
prisoners advancing federal constitutional challenges to their
convictions, Franklin has used the form of Petition made
available by this District Court’s Clerk’s Office, filling in the
relevant information in handprinted form. This memorandum
opinion and order is issued sua sponte because on its face the
Petition discloses its untimeliness in statute of limitations
terms.

According to Petition Pt. I ¶5, Franklin’s direct appellate

review process ended with the October 5, 2009 denial of his
petition for a writ of certiorari from the United States Supreme

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All further references to Title 28’s provisions will

simply take the form “Section--.”

Case: 1:13-cv-03973 Document #: 7 Filed: 06/04/13 Page 2 of 4 PageID #:31

Court (that of course occurred after Franklin’s appeal had wended
its way through the state court system, with the last state court
action having been the March 25, 2009 affirmance of his
conviction and sentence by the Illinois Supreme Court).
According to Petition Pt. II ¶1.B, Franklin then instituted a
state court post-conviction proceeding on May 3, 2010, 6 months
and 28 days after the denial of the petition for certiorari.

According to the Motion for Stay and Abeyance that Franklin
has filed to accompany his Petition, that state post-conviction
petition was initially dismissed in July 2010 on untimeliness
grounds. Then a late notice of appeal was allowed in November
2010, after which Franklin’s post-conviction petition was
successively addressed at all three levels in the state court
system: the Circuit Court of Cook County, the Illinois Appellate
Court and the Illinois Supreme Court, which affirmed the lower
courts’ denial of relief on November 28, 2012.2

But it was not until May 29, 2013 that this District Court’s
Clerk’s Office received the Petition and its accompanying papers,
as evidenced that office’s date stamp. That was 6 months and 1

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This Court will not parse those state court proceedings
to see whether any part of the 2-1/2 year interval between the
initial May 2010 filing and the ultimate November 2012
disposition of the state post-conviction petition would fail to
qualify for tolling purposes under Section 2244(d)(2). Instead
it will make an assumption most favorable to Franklin by treating
that post-conviction proceeding as having been “pending” for
statutory purposes during that entire time frame.

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Case: 1:13-cv-03973 Document #: 7 Filed: 06/04/13 Page 3 of 4 PageID #:32

day after the state post-conviction petition ceased to be
“pending.” And even with the benefit of the “mailbox rule”
applicable to prisoner filings (Houston v. Lack, 487 U.S. 266
(1988)), no more than a few days could be lopped off of that time
period.

What we have then is that, even when account is taken of the
lengthy period during which state post-conviction proceedings are
treated as having been pending, nearly a month more than a year
elapsed between “the date on which the judgment [of conviction]
became final by the conclusion of direct review” (Section
2244(d)(1)(A)) and the date on which Franklin filed his Petition
in this District Court (6 months and 28 days plus 6 months and 1
day, with that total perhaps reduced by some few days by
operation of the “mailbox rule”). That being the case, the
Petition is clearly untimely under Section 2244(d).

That, however, does not call for an immediate sua sponte

dismissal, for Section 2244(d) timeliness is not jurisdictional.
So because of the possibility, however remote, that the State
might waive the bar of limitations, this Court is transmitting a
copy of this memorandum opinion and order to the Illinois
Attorney General’s Office with the request that it be advised on
or before June 24 whether that office is moving for dismissal on
timeliness grounds or is instead waiving the statute of

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Case: 1:13-cv-03973 Document #: 7 Filed: 06/04/13 Page 4 of 4 PageID #:33

limitations.3

Date: June 4, 2013

________________________________________
Milton I. Shadur
Senior United States District Judge

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Meanwhile no action will be taken on Franklin’s stay-and-
abey motion (on the merits of which no view is expressed here).
If the Petition is indeed dismissed, the motion will perish with
it.

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