Opinion
Case No. 3:04-cv-601-JLF.
July 29, 2005
REPORT AND RECOMMENDATION
This matter has been referred to Magistrate Judge Donald G. Wilkerson by District Judge James L. Foreman pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a) for a Report and Recommendation on the Motion to Dismiss filed by the respondent, Charles L. Hinsley, on December 17, 2004 (Doc. 8). For the reasons set forth below, it is RECOMMENDED that the motion be GRANTED, that the Petition for a Writ of Habeas Corpus filed by the petitioner, Charles Sullivan, on August 27, 2004 be DISMISSED, and that the Court adopt the following findings of fact and conclusions of law:
FINDINGS OF FACT
On May 28, 1986, the petitioner, Charles Sullivan, was convicted of first degree murder. He was sentenced to life imprisonment on April 22, 1987. He currently is housed at the Menard Correctional Center in Menard, Illinois.
FACTUAL HISTORY
Sullivan was convicted of the murder of Ronald Hicks. The evidence at trial revealed that Sullivan's girlfriend, Myla Jean Ring, in an attempt to make Sullivan jealous, went on a date with Hicks on May 28, 1985. When Ring told Sullivan of the date, he decided to kill Hicks. Ring and Sullivan executed a plan whereby Ring lured Hicks to an abandoned farmhouse in order for Sullivan to shoot him. Sullivan shot Hicks a number of times. Sullivan and Ring fled the scene. After the shooting, Sullivan and Ring continued to date; however, Ring eventually left the Sullivan and began dating his brother. Thereafter, Sullivan called Ring's mother and told her that Ring had killed Hicks. Ring's mother called the police and Ring eventually confessed to the police and relayed the events of the shooting. At Sullivan's trial, he denied involvement in the shooting and testified that Ring alone shot Hicks because he had raped her.
PROCEDURAL HISTORY
Sullivan directly appealed his conviction to the Illinois Court of Appeals on February 25, 1989. (Respondent's Ex. G) He argued that he was not proven guilty beyond a reasonable doubt based on the testimony of Ring and that his sentence improperly was imposed based on post-crime behavior. In an order dated May 18, 1989, the Appellate Court affirmed the conviction. People v. Sullivan, 538 N.E.2d 1376 (Ill.App.Ct. 1989) (Resp. Ex. A). Sullivan's pro se, petition for leave to appeal, filed on July 21, 1989, was denied by the Illinois Supreme Court on October 5, 1989. People v. Sullivan, 545 N.E.2d 127 (table) (Ill. 1989) (Resp. Ex. C).
Prior to the resolution of his direct appeal, on April 24, 1989, Sullivan filed a petition for post-conviction relief pursuant to "section 2-1401 of the Civil Practice Law (Ill. Rev. Stat. Ch. 110, par.2-1401)" allowing for writ of coram nobis (Resp. Ex. D at p. 1) On June 20, 1990, this petition was denied by the trial court as untimely. (Resp. Ex. D at p. 1) At the time (and now), a petitioner had two years within which to file the petition for relief from judgment. ILL. REV. STAT. 1989, ch. 110, par. 2-1401; See also 735 ILL. COMP. STAT 5/2-1401 (2005). The petition was found to be untimely because more than two years had elapsed from the time of sentencing, April 22, 1987, and the time of filing, April 24, 1989. On March 6, 1991, the Court of Appeals also dismissed his appeal as untimely. The court stated that Sullivan had failed to timely file a petition and that the Court lacked jurisdiction to hear his appeal. (Resp. Ex. D at p. 9) Specifically, Sullivan had erroneously filed an appeal to the Illinois Supreme Court and also had failed to appeal within the 30 day statutory period (he had filed a notice of appeal on September 13, 1990). Leave to Appeal was finally denied by the Illinois Supreme Court on June 5, 1991. People v. Sullivan, 575 N.E.2d 291 (table) (Ill. 1991).
The respondent did not include this citation or document in his responsive pleading.
On June 29, 2000, Sullivan filed another post-conviction petition, this time pursuant the Post Conviction Hearing Act, 725 ILL. COMP. STAT. 5/122-1 (2000). (Resp. Ex. H at p. 2) The basis of this petition was newly discovered evidence in the form of an alibi witness, witnesses who heard Ring recant her confession, and ineffective assistance of trial counsel. (Resp. Ex. E at pp. 1-2) On July 7, 2000, the trial court, in a hand-written order entered on the docket sheet in the case, denied the petition. (Resp. Ex. F at pp. 1-7) The order states that the petition is untimely, that the claim of newly discovered evidence is "frivolous and patently without merit," that certain affidavits contained hearsay, and that his ineffective assistance of counsel claims are waived. (Resp. Ex. F at pp. 1-7) (emphasis in original) The dismissal was reversed and remanded by the Illinois Court of Appeal on November 27, 2001. The Court of Appeals stated that dismissing a petition in the initial stage of review, prior a responsive pleading, based on timeliness was "inappropriate." (Resp. Ex. A p. 5) Rather, the appellate court stated that the trial court should be have waited for a responsive pleading on the subject as timeliness issues can be waived by the state. (Resp. Ex. A p. 5) When the state appealed this decision, the Illinois Supreme Court denied leave to appeal on December 5, 2002. People v. Sullivan, 787 N.E.2d 167 (table) (Ill. 2002) (Resp. Ex. J)
Upon remand to the trial court, the state filed a motion to dismiss based on timeliness on January 30, 2003. (Resp. Ex. L) The trial court granted the motion to dismiss and dismissed the petition with prejudice on November 5, 2003. (Resp. Ex. K at last page) There is no indication that Sullivan appealed this decision to the Illinois Appellate Court or the Illinois Supreme Court.
Sullivan filed his federal petition pursuant to 28 U.S.C § 2254 before this Court on August 27, 2004 through his attorney, Charles H. Stegmeyer. In this petition, Sullivan claims that his sentence violates state statutes and Apprendi v. New Jersey, 530 U.S. 466 (2000), and that he was denied effective assistance of trial counsel when counsel failed to move for a change of venue based on pretrial publicity.
CONCLUSIONS OF LAW TIMELINESS
It is unnecessary for the Court to hold a evidentiary hearing on this matter as it can be resolved on the briefs and evidence supplied by the parties. As an inmate in state custody, the petitioner seeks relief pursuant to 28 U.S.C. § 2254, which is codification of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). This code section contains a number of requirements including the exhaustion of state court remedies and a showing that the state courts erred in either the law applied to the petitioner's claims or the facts relied on in basing a decision. 28 U.S.C. § 2244(d) further provides the time limits for the filing of a habeas petition:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became 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, 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.
(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.
The burden is on the respondent to show that the petition is untimely. Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir. 2004). The respondent argues that the petition is untimely as it was filed beyond the one year period.
28 U.S.C. 2244(d)(1)(A) provides that the 1 year limitation period begins to run at the conclusion of Sullivan's direct appeals. From the record in this case, Sullivan's conviction was affirmed by the Illinois Supreme Court (the state court of last resort) on October 5, 1989. Even though Sullivan did not appeal this decision to the United States Supreme Court, he is entitled to the 90 days within which he could have appealed the decision.Anderson v. Litscher, 281 F.3d 672, 674-675 (7th Cir. 2002). As such, Sullivan's conviction became final on January 3, 1990.
The AEDPA became effective on April 24, 1996, after the finality of Sullivan's conviction. As such, he had until April 24, 1997 to file a petition for post-conviction relief pursuant to 28 U.S.C. § 2244(d)(1)(A). Smith v. Battaglia, ___ F.3d ___, 2005 WL 1634008, *3 (7th Cir. 2005); Newell v. Hanks, 283 F.3d 827, 833 (7th Cir. 2002). Under this part of the statute, even after tolling for the filing of his state post-conviction petition, Sullivan's federal petition is untimely as it was filed in 2004 and beyond the 1 year limitations period.
The remaining provisions of section 2244 also do not save the petition from being time-barred. Section 2244(d)(1)(D) provides that Sullivan has 1 year from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Furthermore, section 2244(d)(1)(C) provides for a 1 year limitation from "the date on which the constitutional right asserted was initially recognized by the Supreme Court . . ." Sullivan's first claim, that his sentence violated Apprendi, does not come within the meaning of section 2244(d)(1)(C). Apprendi was decided on June 26, 2000 and held that: "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. Even if the right established in Apprendi was "newly recognized," the decision does not apply retroactively on collateral attack. See Knox v. United States, 400 F.3d 519, 523 (7th Cir. 2005); Dellinger v. Bowen, 301 F.3d 758, 765 (7th Cir. 2002). Therefore, section 2244(d)(1)(C) does not apply. In addition, Sullivan's ineffectiveness claim is not "newly recognized" and the facts that gave rise to this claim were apparent at the time of trial and sentencing, in 1986 and 1987, respectively. Finally, there has been no showing of any impediment by the state that delayed the filing of Sullivan's petition. As such, the petition is time-barred.
PROCEDURAL DEFAULT
Even if the petition were not time-barred, Sullivan has procedurally defaulted on his claims. When a state court addresses a question of federal law and bases its decision on independent and adequate state law grounds, that are either substantive or procedural, the federal courts generally will not disturb such a finding on habeas review. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-2554 (1991) ("Because this Court has no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory."); Miranda v. Leibach, 394 F.3d 984, 391-392 (7th Cir. 2005) ("A state ground is deemed independent for this purpose only if the state court actually relied on a state rule sufficient to justify its decision. . . . The adequacy of the state ground is a question of federal law . . .; the ground is considered adequate only if the state court applies the rule in a consistent and principled way." (citations and quotation marks omitted)). This rule recognizes the importance of "finality, comity, and the orderly administration of justice" and the reluctance of the federal courts to rule contrary to the state court on an issue of state law. See, Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 1849 (2004); Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591 (2000) ("The procedural default doctrine and its attendant `cause and prejudice' standard are `grounded in concerns of comity and federalism,' . . . and apply alike whether the default in question occurred at trial, on appeal, or on state collateral attack. . . ." (citations omitted)). The object is to allow the state courts the opportunity to address the petitioner's claims in the first instance. Edwards, 529 U.S. at 451, 120 S.Ct. at 1591.
Procedural default can occur when "a petitioner does not adequately present a claim to the state court" and there is no showing of "cause and prejudice for the default or . . . that a failure to grant him relief would work a fundamental miscarriage of justice." Richardson v. Briley, 401 F.3d 794, 801 (7th Cir. 2005) (citation omitted); Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (fundamental miscarriage equals "the conviction of an innocent person."); See also Edwards, 529 U.S. at 451-452, 120 S.Ct. at 1591. A petitioner must "fairly present" his claim before the state court in order to allow the state the opportunity to correct any Constitutional violations.Sanders v. Cotton, 398 F.3d 572, 581 (7th Cir. 2005) (citations omitted). This fair presentment requirement means that the petitioner must "assert his claims through one complete round of state court review," Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005), and "put forward operative facts and controlling legal principles." Sanders v. Cotton, 398 F.3d 572, 580 (7th Cir. 2005). Thus, "A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim." Bintz, 403 F.3d at 863 (quotation marks and citation omitted). The burden is upon the respondent to show that the petitioner has procedurally defaulted his claims.
The petitioner asserts that Sullivan has procedurally defaulted the two claims raised in his federal habeas petition by either failing to raise the claim before the state court or failing to complete one full round of appeals. Sullivan's first claim is that his sentence violated Apprendi. There is no evidence or showing that Sullivan raised this claim with the state courts. Sullivan's June 29, 2000 brief before the state trial court only made arguments concerning "newly discovered" evidence and the ineffectiveness of trial counsel for failing to seek a change of venue and for failing to voir dire jurors regarding pre-trial publicity. (Resp. Ex. E at pp. 1-2) Sullivan's second claim concerns the ineffectiveness claim made in the June 29, 2000 brief. However, the record reveals that he did not go through one round of state court review of this claim. As noted above, this state petition was denied on timeliness grounds during initial screening before the trial court. This denial was appealed and reversed and remanded by the Illinois Court of Appeals. After the trial court denied the petition again (after curing the defect noted by the Court of Appeals), Sullivan did not appeal this final order to the trial court. As such, he failed to go through one complete round of state review. It is clear, then, that Sullivan has procedurally defaulted his claims.
Sullivan, however, make a number of arguments challenging the timeliness and procedural default arguments made by the respondent. He first states that "his claims remained under review by the state courts of Illinois until November 5, 2003." (Response to Motion to Dismiss (hereinafter "Resp." at p. 4) Apparently, Sullivan believes that his entire case remained "pending" from the time of conviction to November 5, 2003 (the last state court ruling) and that the limitations period was thus tolled until that time. However, Sullivan filed his second post-conviction brief before the state courts on June 29, 2000. A claim cannot be "pending" prior to it being filed. Sullivan did nothing from June 5, 1991 to June 29, 2000 and the period from April 24, 1997 to 2000 counted against him. (Resp. Ex. K at pp. C26G-C26I) This argument, therefore, is wholly without merit.
Next, Sullivan argues that "excessive delay" was caused by the state courts. This Court fails to see how the state court's consideration of the petitioner's untimely claims was "excessively" lengthy. In any event, § 2244 provides that any time that the state court's may have taken to consider his post-conviction claims would not count against him. Therefore, this argument is also wholly without merit.
Sullivan also makes blanket arguments that he had no "alternatives" but to file this federal habeas petition, that his pre-trial publicity issue never has been addressed on the merits, that § 2244 should not apply to him, and that he is "exempt under Section 2244(1)(A) and (B)." (Resp. at p. 5) All of these legal arguments are wholly without merit. Contrary to his assertion, the "alternative" that Sullivan had was to appeal the adverse ruling of the state trial court on November 5, 2003 to the Illinois Appellate Court and then to the Illinois Supreme Court prior to filing before this Court. Second, the state courts never addressed the merits of his pre-trial publicity claim because, at each stage of these proceedings, Sullivan's petitions were untimely and therefore procedurally barred. Finally, Sullivan provides no case authority that he is exempted from the AEDPA; there is no applicable "Section 2244(1)(A) and (B)" contained in the United States Code; and, there is no showing that sections 2244(d)(1)(A) or (B) would "exempt" Sullivan from timely filing a habeas petition. Sullivan's remaining arguments are likewise wholly without merit.
For the reasons set forth above, it is RECOMMENDED that the Motion to Dismiss filed by the respondent, Charles L. Hinsley, on December 17, 2004 be GRANTED (Doc. 8), that the Petition for a Writ of Habeas Corpus filed by the petitioner, Charles Sullivan, on August 27, 2004 be DISMISSED (Doc. 1), and that the Court adopt the foregoing findings of fact and conclusions of law.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties shall have ten (10) days after service of this Recommendation to file written objections thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004); United States v. Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003).