“[petitioners] cannot backdoor [their] way into timely federal habeas review by characterizing [their] sentence modification as a result of the direct review process.”
How later courts described this case
- “[petitioners] cannot backdoor [their] way into timely federal habeas review by characterizing [their] sentence modification as a result of the direct review process.”
- “timeliness of [a] habeas petition is calculated based on the date of the final judgment that [a] petition challenges” and unaltered convictions that were not subject to resentencing do not receive later final judgment dates
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEVIN SEATS, )
)
Petitioner, )
)
vs. ) Case No. 21-CV-1221-SMY
)
DANIEL MONTI, )
)
Respondent. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
Petitioner Devin Seats, a state prisoner currently incarcerated at Shawnee Correctional
Center, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, requesting
resentencing for his 2012 convictions for aggravated battery with a firearm and aggravated
discharge of a firearm (Doc. 1). The case is now before the Court on Respondent’s motion to
dismiss the Petition as untimely (Doc. 14).1 For the following reasons, Respondent’s motion
is GRANTED.
Factual and Procedural Background2
In April 2011, Seats shot a man in the face at a Chicago store; the man survived. People
v. Seats, 2015 IL App (1st) 130199-U, ¶¶ 4, 13. Following a bench trial, Seats was found guilty
of aggravated battery with a firearm under 720 ILCS 5/12-4.2(a)(1), armed habitual criminal
under 720 ILCS 5/24-1.7(a), and aggravated discharge of a firearm under 720 ILCS 5/24-
1.2(a)(1). Id. at ¶ 2.
1 Seats has not opposed Respondent’s motion but did address the timelines issue in his Petition (Doc. 1, p. 7).
2 This Court cites to the public judicial records along with the exhibits attached by Respondent.
Seats’ pre-sentence investigation report referred to six prior felony convictions,
including a 2005 conviction for aggravated unlawful use of a weapon (AUUW), a 2005
conviction for manufacture/delivery of heroin, a 2005 conviction for possession of a controlled
substance, two 2007 convictions for AUUW, and a 2009 conviction for felony escape. People
v. Seats, 2020 IL App (1st) 170738-U, ¶ 6. On December 12, 2012, the Circuit Court of Cook
County sentenced Seats to 20 years imprisonment for aggravated battery with a firearm, 12
years for armed habitual criminal, and 10 years for aggravated discharge of a firearm, all to run
concurrently. Id. at ¶ 7. In imposing sentence, the Honorable James B. Linn noted that, in
aggravation, Seats had a “considerable criminal background” and that “[he’d] been through the
system before” but did not directly reference the AUUW convictions. Id. at ¶ 7. In 2013, the
Illinois Supreme Court ruled that such AUUW convictions violated the Second Amendment.
People v. Aguilar, 2 N.E.3d 321 (Ill. 2013). Seats’ AUUW convictions were formally vacated
in November 2019. People v. Seats, 2020 IL App (1st) 170738-U, ¶ 6.
Seats appealed his 2012 convictions on unrelated grounds. The Illinois Appellate Court
affirmed and the Illinois Supreme Court denied Seats’ Petition for Leave to Appeal (“PLA”)
on November 25, 2015. People v. Seats, 2015 IL App (1st) 130199-U; People v. Seats, 42
N.E.3d 374 (Ill. 2015). Seats did not file a Petition for Writ of Certiorari to the United States
Supreme Court.
On December 22, 2016, Seats filed a pro se petition for post-conviction relief, asserting
that the sentencing court had improperly considered his AUUW convictions. People v. Seats,
2020 IL App (1st) 170738-U, ¶ 9. Seats’ petition was dismissed. The Illinois Appellate Court
affirmed the dismissal, finding that Seats’ AUUW convictions were “so insignificant that it did
not lead to a greater sentence,” especially given the fact that he shot another man in the face.
Id. at ¶¶ 17, 18. That court vacated Seats’ armed habitual criminal conviction, while leaving
unmodified his convictions for aggravated battery with a firearm and aggravated discharge of
a firearm. Id. at ¶ 14. The Illinois Supreme Court denied Seats’ PLA on November 18, 2020.
People v. Seats, 159 N.E.3d 955 (Ill. 2020).
Seats filed the instant § 2254 petition on October 6, 2021 (Doc. 1), arguing that he
should have been resentenced on his convictions for aggravated battery with a firearm and
aggravated discharge of a firearm given the vacating of his AUUW convictions.
Discussion
28 U.S.C. § 2244 creates a one-year limitation period for filing a Petition for Writ of
Habeas Corpus. Specifically, under 28 U.S.C. § 2244(d)(1), a person convicted in state court
must file his federal habeas petition within one year of 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.
28 U.S.C. § 2244(d)(1).
The one-year statute of limitations is tolled during the pendency of a “properly filed”
state post-conviction petition and may be subject to equitable tolling. 28 U.S.C. § 2244(d)(2);
Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling applies only if the petitioner
shows both “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Under 28 U.S.C. § 2244(d)(1)(A), Seats had one year from the date on which his
judgment became final to seek federal habeas relief. His judgment became final on February
24, 2016, when the time expired for him to file a Petition for a Writ of Certiorari to the United
States Supreme Court from the Illinois Supreme Court’s denial of his PLA on November 25,
2015. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The one-year clock ran for 302 days
until it was tolled by the postconviction petition that Seats filed on December 22, 2016. 28
U.S.C. § 2244(d)(2) (“time during which a properly filed application for State post-conviction
or other collateral review” shall not count). The clock resumed running on November 18, 2020,
when the Illinois Supreme Court denied Seats’ PLA from his postconviction petition. Pace v.
DiGugliemo, 544 U.S. 408, 410 (2005). Because Seats did not file the instant Petition within
the 63 days that remained, but instead waited another 322 days until October 6, 2021, his
Petition is untimely.
Seats asserts that the clock runs from when the sentencing decision becomes final, a
theory the Seventh Circuit Court of Appeals has rejected. See, Lozano v. Frank, 424 F.3d 554,
555-556 (7th Cir. 2005) (“[petitioners] cannot backdoor [their] way into timely federal habeas
review by characterizing [their] sentence modification as a result of the direct review
process.”). Moreover, while Seats’ habitual criminal conviction was vacated, his convictions
for aggravated battery with a firearm and aggravated discharge of a firearm were not modified
and are subject to the above timeline pursuant to 28 U.S.C. § 2244(d)(1)(A). Turner v. Brown,
845 F.3d 294, 297 (7th Cir. 2017) (“timeliness of [a] habeas petition is calculated based on the
date of the final judgment that [a] petition challenges” and unaltered convictions that were not
subject to resentencing do not receive later final judgment dates).
Disposition
For the foregoing reasons, Respondent’s Motion to Dismiss (Doc. 14) is GRANTED,
the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1) is DENIED, and this
case is DISMISSED with prejudice. The Clerk of Court is DIRECTED to close this case and
enter judgment accordingly.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court must “issue
or deny a certificate of appealability when it enters a final order adverse to the applicant.” A
certificate should be issued only where the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
For a certificate of appealability to issue, a petitioner must show that “reasonable
jurists” would find this Court’s “assessment of the constitutional claims debatable or wrong.”
See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Buck v. Davis, 137 S. Ct. 759, 773 (2017).
Where a petition is dismissed on procedural grounds without reaching the underlying
constitutional issue, the petitioner must show both those reasonable jurists would “find it
debatable whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
Here, no reasonable jurist would find it debatable whether this Court’s ruling on the
untimeliness of the Petition is correct. Accordingly, the Court denies a certificate of
appealability. Seats may reapply for a certificate of appealability to the United States Court of
Appeals, Seventh Circuit. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1).
IT IS SO ORDERED.
DATED: January 9, 2023 Aoi oe
STACI M. YANDLE
United States District Judge
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