Jefferson v. Welborn

Submitted May 4, 2000 This proceeding concerns the petition that Uluches Jefferson filed for a writ of habeas corpus pursuant to 28 U.S.C. sec. 2254. The district court dismissed the petition as untimely, see 28 U.S.C. sec. 2244(d), and declined to issue a certificate of appealability. Jefferson now has filed a request for a certificate of appealability, through which he seeks an opportunity to have the district court consider his claims on the merits. (The Supreme Court's recent decision in Slack v. McDaniel, 120 S. Ct. 1595 (2000), makes it clear that a certificate of appealability may be granted on this kind of procedural ground.) While Jefferson's direct appeal was still pending before the Illinois Appellate Court, he filed his post-conviction petition, which the trial court subsequently denied. Thereafter, in orders entered on September 17, 1996 (direct appeal) and November 6, 1996 (post-conviction appeal), the Illinois Appellate Court affirmed both his conviction, on direct appeal, and the denial of his post-conviction petition. On July 17, 1997, Jefferson moved for leave to file a late petition for leave to appeal both decisions to the Illinois Supreme Court. On September 24, 1997, the Illinois Supreme Court issued an order in which it granted Jefferson's motion for leave to file a late petition for leave to appeal. Several months later, in a routine order dated December 3, 1997, the court denied his petition for leave to appeal. Whether Jefferson is entitled to his certificate of appealability depends on whether the district court correctly applied the rules governing the limitations period for filing sec. 2254 petitions that are found in 28 U.S.C. sec. 2244(d). Subpart (1) of that section establishes a one-year period of limitations that runs from various points--in Jefferson's case, from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. See sec. 2244(d)(1)(A). Subpart (2) of the same section provides that the time during which a ""properly filed"" application for state post-conviction relief is pending ""shall not be counted"" toward the period of limitation.