Juan Martinez v. Eddie Jones

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3118
JUAN M ARTINEZ,
Petitioner-Appellant,
v.
E DDIE JONES,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 338—Elaine E. Bucklo, Judge.
S UBMITTED D ECEMBER 5, 2008—D ECIDED F EBRUARY 19, 2009
Before E ASTERBROOK, Chief Judge, and K ANNE and
W OOD , Circuit Judges.
P ER C URIAM. Juan Martinez challenged his felony-
murder conviction in a petition for a writ of habeas
corpus. See 28 U.S.C. § 2254. The district court denied
Martinez’s petition as untimely. Martinez appeals. We
write to acknowledge a change in Illinois procedural
rules that abrogates our decision in Smith v. Walls, 276
F.3d 340, 344-45 (7th Cir. 2002).
2 No. 08-3118
In July 2001, a jury convicted Martinez of felony
murder, home invasion, and residential burglary; the
trial court sentenced him to a total of 30 years’ imprison-
ment. On direct appeal the court vacated Martinez’s
conviction for home invasion but affirmed his conviction
for felony murder and his sentence. People v. Martinez,
795 N.E.2d 870 (Ill. App. Ct. 2003). The Illinois Supreme
Court denied Martinez leave to further appeal his case
on January 28, 2004, and, had he not filed a collateral
attack in state court, his conviction would have become
final ninety days later. See Anderson v. Litscher, 281 F.3d
672, 674-75 (7th Cir. 2002) (holding that, for purposes of
§ 2244(d)(1)(A), a conviction becomes final when the
time to file a petition for certiorari review expires). In
August 2003, however, Martinez filed a petition for a
writ of habeas corpus in state court, tolling the limitations
period. See 725 ILL. C OMP. S TAT. 5/122-1; § 2244(d)(2). On
October 20, 2003, the state court denied Martinez’s peti-
tion, and Martinez withdrew his appeal from that deci-
sion on February 10, 2005.
Martinez had one year from the time that the judgment
in his state post-conviction proceedings became final on
February 10, 2005, to file a petition in federal court.
§ 2244(d)(1)(A). But, instead of pursuing his remedies in
federal court, Martinez filed a second petition for post-
conviction relief in the state court on September 29, 2005.
One month later, the state court construed Martinez’s
petition as a request for permission to file a successive
collateral attack and denied it. 725 ILL. C OMP. S TAT. 5/122-
1(f). Then, on December 27, 2006, Martinez filed his
§ 2254 petition in the district court. After the district court
No. 08-3118 3
denied Martinez’s motion as untimely, Martinez ap-
pealed. We construe his appeal as an application for a
certificate of appealability.
A properly filed petition for postconviction relief in state
court tolls the one-year statute of limitations for filing a
§ 2254 petition. See § 2244(d)(2); Artuz v. Bennett, 531 U.S.
4, 8 (2000). Martinez argues that his § 2254 petition is not
untimely because his successive petition for postconvic-
tion relief tolled his federal statute of limitations. But we
have clearly held that where state law requires pre-filing
authorization—such as an application for permission to
file a successive petition—simply taking steps to fulfill
this requirement does not toll the statute of limitations.
See Tinker v. Hanks, 255 F.3d 444, 445-46 (7th Cir. 2001).
Instead the second petition tolls the limitations period
only if the state court grants permission to file it. See Artuz,
531 U.S. at 9-10; see also Lovasz v. Vaughn, 134 F.3d 146, 148
(3d Cir. 1998) (holding that “[i]f a petitioner complies with
. . . [the] procedural requirements the state imposes, his
petition, even a second or successive petition, is ‘a properly
filed application’ for purposes of § 2244(d)(2)”).
Six years ago, we held that in Illinois a successive
postconviction petition tolled the statute of limitations
because, at that time, Illinois did not require a state pris-
oner to obtain permission to file a successive petition. See
Smith v. Walls, 276 F.3d 340, 344-45 (7th Cir. 2002). How-
ever, on January 1, 2004, the Illinois legislature changed
its laws. Now a petitioner must request permission
from the court before filing a successive postconviction
petition. See 725 ILL. C OMP. S TAT. 5/122-1(f); see also
4 No. 08-3118
People v. DeBerry, 868 N.E.2d 382, 384 (Ill. App. 2007);
People v. Brockman, 843 N.E.2d 407, 414-15 (Ill. App. 2006).
We take this opportunity to clarify that the period
during which a request to file a successive petition is
pending in Illinois state court does not toll the statute of
limitations on actions under § 2254 unless permission is
granted. See Tinker, 255 F.3d at 445-46.
Because Martinez was denied permission to file a
successive petition, his request was not a properly filed
postconviction action. Thus it did not toll the limitations
period under § 2244(d)(2), and his petition for a writ of
habeas corpus in the district court was untimely. Accord-
ingly, we find no substantial question for appeal, and
we deny his application. See § 2253(c)(2).
2-19-09