Habeas – Filing Deadline – DNA Motion as Tolling
Price’s postconviction motion for DNA testing in Illinois state court didn’t toll the 28 U.S.C. § 2254 federal habeas deadline, and his habeas petition is therefore deemed untimely.
The court’s analysis relates to Illinois procedure. As will be seen, Wisconsin’s is meaningfully different and should yield a different conclusion. First, the obvious: subject to highly exceptional circumstances, once a state conviction becomes “final,” by reaching the end of the direct appeal process, 28 U.S.C. § 2244(d)(1)(A) imposes on 2254 petitions a habeas filing deadline of 1 year (from denial of cert if such a petition was filed) or 1 year and 90 days (if cert wasn’t sought, the 90 days representing the time for filing a cert petition). However, the deadline is tolled during the time that properly filed state post-conviction review was pending, 28 U.S.C. § 2244(d)(2). Price, while his direct appeal was pending in Illinois, filed a separate motion for DNA testing under 725 ILCS 5/116-3. Ultimately, he lost both the appeal and the DNA motion, but resolution of the latter dragged on well past the former. As a result, when he filed this habeas petition, he was within the 1-year deadline as measured against final resolution of the DNA motion, but outside the deadline as measured against conclusion of his direct appeal. Long and short of it: if the DNA motion is deemed “post-conviction review” then it tolled the 2254 deadline and his petition was timely; if the motion wasn’t in the nature of post-conviction review, then it tolled nothing and his petition must be dismissed. The 7th says it’s the latter.
Relying on a case construing our § 974.06 procedure, the court defines post-conviction review as hinging on “an independent and civil inquiry into the validity of a conviction and sentence,” quoting Graham v. Borgen, 483 F.3d 475, 479 (7th Cir. 2007). The Illinois DNA testing statute doesn’t satisfy this test because it is purely procedural and simply doesn’t empower the judge hearing the request to get at the validity of conviction or sentence:
… when a defendant moves under § 116-3 for forensic testing, the best that can happen is that the trial court grants the motion, the tests are performed, and the defendant receives the results. The defendant may choose to use the results of the DNA test in a separate post-conviction petition for relief claiming his or her actual innocence, but no hearing automatically follows. Further, nothing in the plain language of the statute or in any of the state court opinions of which we are aware gives the trial court the authority to release a defendant from custody under § 116-3.
The no-tolling conclusion turns, then, on the specific nature of Illinois procedure, as the court makes clear in noting a different result reached by the 5th circuit in light of different Texas procedure, Hutson v. Quarterman, 508 F. 3d 236 (5th Cir. 2007):
… As understood by the Fifth Circuit, Texas’s DNA testing procedure provides for an automatic consideration of the testing results that may ultimately lead to a defendant’s release from prison. The court also relied on a number of Texas state court opinions that it characterized as equating “the Texas statute providing for post-conviction DNA proceedings with habeas corpus proceedings in that both make a collateral inquiry into the validity of the conviction.” Id. at 239 (internal quotation marks omitted).
Unlike Texas’s procedure, a motion for post-conviction DNA testing in Illinois does not automatically lead to a court’s determination of the defendant’s actual innocence. Nor does a court have the authority to release a prisoner under § 116-3. Because of these important differences, we find the decision in Hutson inapposite. Cf. Brown, 530 F.3d at 1338.
And that brings us at last to Wisconsin’s post-conviction DNA testing procedure, § 974.07 which critically, like Texas’s and unlike Illinois’s, does expressly authorize relief against the conviction, subsec. (10) providing in pertinent part: “the court shall schedule a hearing to determine the appropriate relief,” including setting aside the conviction or granting new trial or sentencing. Pretty clear, then, that a properly filed § 974.07 motion would toll the deadline (assuming, of course, that it is filed within the deadline). It’s also clear that federal habeas litigation isn’t for the faint-hearted. If you want to take the cautious approach, the Price court itself illuminates the path:
We note that our decision here should not have the unintended consequence of forcing prisoners to choose between pursuing habeas corpus relief in federal court or DNA testing in state court. See Hutson, 508 F.3d at 239-40 (reasoning that “[c]omity . . . dictates that the federal courts give Texas courts the time to review these DNA claims and provide necessary relief without forcing convicted persons to choose between the two systems thereby undermining the remedy the Texas legislature has provided”). As other cases have made abundantly clear, a prisoner who wishes to pursue both federal habeas relief and move for DNA testing under § 116-3 may timely file his or her habeas petition and then move to stay the federal proceedings while the Illinois courts consider the DNA testing motion. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005); Newell v. Hanks, 283 F.3d 827, 834 (7th Cir. 2002). Although a motion under § 116-3 is not a collateral review of a judgment and therefore does not toll AEDPA’s statute of limitations, the principles of comity, finality, and federalism should strongly militate in favor of staying a prisoner’s federal habeas petition while Illinois courts have an opportunity to consider the prisoner’s § 116-3 motion, and where appropriate, subsequent collateral attack on the underlying judgment.
