Russell v. Mitchell

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

LASHAWN RUSSELL,

Petitioner,

v. Case No. 3:23-cv-00006-NJR

DAVID MITCHELL, Warden,

Respondent.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Petitioner LaShawn Russell, an inmate of the Illinois Department of Corrections at

Vienna Correctional Center,1 brings this habeas action pursuant to 28 U.S.C. § 2254.

Respondent filed a Motion to Dismiss Russell’s Petition. (Doc. 9). For the reasons set forth

below, Respondent’s Motion to Dismiss the Petition is granted, and Russell’s Petition is

dismissed.

BACKGROUND

In April 2021, Russell pleaded guilty to one count of Armed Robbery, in violation

of 720 ILCS 5/18-2(a)(2), and received a 24-year sentence in the Circuit Court of Jackson

County, Illinois. (Docs. 10-1; 10-3). Under the sentencing provision in Illinois’ armed

robbery statute, “[a] violation of subsection (a)(2) is a Class X felony for which 15 years

shall be added to the term of imprisonment imposed by the court.” See 720 ILCS 5/18-

2(b). For Russell, the sentencing court imposed a 9-year sentence, then added the

1 At the time he filed his Petition, Russell was incarcerated at Pinckneyville Correctional Center.

Respondent David Mitchell was the warden of Pinckneyville at the time.

compulsory 15-year enhancement for committing the offense while carrying a firearm. A

month after imposition of his sentence, Russell filed a motion to reconsider the sentence

arguing that it was excessive and that the firearm enhancement was improper. (Doc. 10-

2). On June 1, 2021, the trial court denied Russell’s motion. (Doc. 10-3). No appeal or state

postconviction action ensued. Over a year later, in July 2022, Russell asked the Illinois

Supreme Court for leave to file an original habeas corpus action in light of the Supreme

Court’s holding in United States v. Taylor, 596 U.S. 845, 142 S.Ct. 2015, 213 L.Ed.2d 349

(2022). (Doc. 10-4). The Illinois Supreme Court denied Russell’s motion for leave in

November 2022. (Doc. 10-5).

Russell then filed this habeas petition, under 28 U.S.C. § 2254, to likewise seek

relief after the Supreme Court’s decision in Taylor. (Doc. 1). In response, Respondent filed

a Motion to Dismiss the Petition arguing that it is untimely. (Doc. 9). According to

Respondent, Russell’s one-year limitations period to file a federal habeas corpus petition

had expired. (Id.). Respondent also urges that Taylor does not recognize a constitutional

right (or any right relevant to Russell) and, thus, did not trigger a fresh one-year

limitations period. (Id.).

LEGAL STANDARD

This habeas petition is subject to the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), which “modified a federal habeas court’s role in reviewing state

prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

685, 693 (2002); 28 U.S.C. § 2254. Federal habeas review serves as “a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary error

correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting

Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment))

(internal quotation marks omitted). Habeas relief is restricted to cases where the state

court determination “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d).

A one-year period of limitation applies to an application for writ of habeas corpus

by a person in custody pursuant to the judgment of a State court. 28 U.S.C. § 2244(d). The

limitation period is triggered by the latest of the following events:

(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.

Id. at § 2244(d)(1)(A)-(D). Equitable tolling “can extend the one-year period available for

filing” when an applicant experiences some extraordinary circumstance, beyond their

control, that prevents timely filing. Perry v. Brown, 950 F.3d 410, 412 (7th Cir. 2020); see

generally Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010).

DISCUSSION

Russell filed his Petition on January 3, 2023. The Supreme Court decided Taylor on

June 21, 2022. See Taylor, 596 U.S. 845 (2022). Under his interpretation of Taylor, Russell

contends that an enhancement for using a firearm in furtherance of the commission of a

crime is now deemed unconstitutional when no physical violence occurred in the

commission of the charged crime. Thus, he reasons that the Illinois statute under which

he was sentenced is now unconstitutional as it allows for a 15-year sentencing

enhancement for use of a firearm in the commission of a robbery when no physical

violence occurred. Russell also argues that he was never accused of brandishing a firearm

during the robbery, rather, he was merely found with a gun on his person. As such, he

states that the victim did not suffer physical violence, which is necessary for an

enhancement under Taylor. Lastly, Russell contends that Taylor created a new and

significant change in the law which overcomes any time limitations. Russell seeks

resentencing to remove the 15-year enhancement.

As an initial matter, Russell misunderstands the Supreme Court’s holding in

Taylor. The Taylor Court analyzed whether attempted Hobbs Act robbery, a specific

federal offense, constituted a crime of violence under 18 U.S.C. § 924(c)(3)(A), a specific

federal statute, to qualify for a sentencing enhancement. Taylor, 596 U.S. at 853-59. The

Supreme Court held that, because the government is not required to prove the use,

attempted use, or threatened use of force to substantiate any element of attempted Hobbs

Act robbery, the offense does not qualify as a crime of violence subject to a sentencing

enhancement under § 924(c). Id. at 860. In Taylor, the Supreme Court did not recognize

any constitutional right that retroactively applies to cases on collateral review. Taylor also

does not implicate, invalidate, or even graze the topic of, convictions or sentencing

enhancements for armed robbery under state law—certainly not a conviction or

enhancement under 720 ILCS 5/18-2.

Because the Taylor Court did not recognize any constitutional right (or make any

such right retroactive), the limitations period for Russell’s Petition is not triggered under

28 U.S.C. § 2244(d)(1)(C). Because there was no state-created impediment or newly

discovered information to support Russell’s claims, the Court also discards Sections

2244(d)(1)(B) and (d)(1)(D) for calculation of the limitations period. As such, Russell’s

Petition is subject to a one-year limitations period from the date on which the judgment

against him became final by the conclusion of direct review or the expiration of the

allotted time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). When a state petitioner

elects not to seek review in the State’s highest court, the judgment of conviction becomes

final when the time for seeking review expires. See Gonzalez v. Thaler, 565 U.S. 134, 150

(2012). Under Illinois Supreme Court Rule 606(b), a defendant must file a notice of appeal

within 30 days after the entry of the final judgment or “if a motion directed against the

judgment is timely filed, within 30 days after the entry of the order disposing of the

motion.” Ill. Sup. Ct. R. 606(b) (perfection of appeal in criminal cases, post-conviction

cases, and juvenile court proceedings). When judgment is entered after a negotiated plea

of guilty, the defendant must, in order to challenge his sentence as excessive, file a motion

to withdraw the plea of guilty within 30 days of the imposition of the sentence. Ill. Sup.

Ct. R. 604(d) (appeal by defendant from a judgment entered upon a plea of guilty).

Here, because Russell entered a fully negotiated guilty plea, he had 30 days from

the imposition of his sentence to file a motion to withdraw his plea to challenge his

sentence as excessive. His sentence was imposed on April 22, 2021, and, thus, his motion

to withdraw was due by May 22, 2021. On that day, the judgment of conviction became

final against Russell as his time to properly seek review expired. As such, the one-year

limitations window to file a petition for habeas corpus closed on May 22, 2022. Russell

filed his Petition on January 3, 2023, which obviously falls outside that window.

Russell did file a motion for reconsideration, which does not appear to be the

proper channel to challenge his sentence after entering a negotiated guilty plea, but even

if the Court finds that the state trial court’s disposal of that motion triggered the

limitations period, the Petition remains untimely. The state trial court denied Russell’s

motion to reconsider sentence on June 1, 2021. If Russell’s judgment became final 30 days

after disposition of the motion to reconsider, it became final on July 1, 2021. Thus, the

one-year limitations period expired on July 1, 2022. Again, even under this more generous

calculation, the Petition, filed on January 3, 2023, was untimely.

Of course, “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 Section 2244(d).

28 U.S.C. § 2244(d)(2). But Russell’s motion for leave to file an original action in the

Illinois Supreme Court was not a properly filed collateral attack. When “state law

requires pre-filing authorization” to file a motion for postconviction relief or collateral

attack, “simply taking steps to fulfill this requirement does not toll” the limitations

period. Martinez v. Jones, 556 F.3d 637, 638-39 (7th Cir. 2009). The limitations period is

tolled only if the state court grants permission to file the petition for postconviction relief

or collateral attack. Id. The Illinois Supreme Court denied Russell’s motion for leave to

file an original action, and because his motion required pre-filing authorization, the

limitations period was not tolled while the Illinois Supreme Court reviewed that motion.

Moreover, Russell does not contend, nor does the record indicate, that equitable tolling

should apply.

For the reasons set forth above, the Court agrees with Respondent that the Petition

is untimely and should be dismissed. As such, Respondent’s Motion to Dismiss (Doc. 9)

is granted.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases requires district courts to

consider whether to issue or deny a certificate of appealability when entering a final order

adverse to a petitioner. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may be

issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” To meet this standard, a petitioner “must have a constitutional

claim (or an underlying procedural argument on which a constitutional claim depends),

and he must ‘demonstrate that reasonable jurists would find the district court’s

assessment of his constitutional claims debatable or wrong.’” United States v. Fleming, 676

F.3d 621, 625 (7th Cir. 2012) (quoting Tennard v. Dretke, 542 U.S. 274, 282 (2004)) (emphasis

omitted); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that to obtain a

certificate of appealability after dismissal on procedural grounds, a petitioner must show

that reasonable jurists “would find it debatable whether the petition states a valid claim

of the denial of a constitutional right” and “whether the district court was correct in its

procedural ruling”).

Here, there is no basis for finding that reasonable jurists would debate the

correctness of this procedural ruling or that Russell presented a valid claim of the denial

of a constitutional right. Accordingly, a certificate of appealability is denied.

NOTICE OF APPELLATE RIGHTS

If Russell wishes to contest this Order, he has two options. He can ask the Seventh

Circuit to review the Order, or he can first ask the undersigned to reconsider the Order

before going to the Seventh Circuit.

If Russell chooses to go straight to the Seventh Circuit, he will only be allowed to

proceed on his appeal if he first obtains a certificate of appealability. The undersigned

District Judge has already declined to issue a certificate of appealability. So, Russell must

request a certificate of appealability from the Court of Appeals pursuant to Federal Rule

of Appellate Procedure 22 and 28 U.S.C. § 2253(c), in addition to filing his notice of

appeal. He must file a notice of appeal within 30 days from the entry of judgment or order

appealed from. FED. R. APP. P. 4(a)(1)(A). The deadline can be extended for a short time

only if Russell files a motion showing excusable neglect or good cause for missing the

deadline and asking for an extension of time. FED. R. APP. P. 4(a)(5)(A), (C). See also

Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012) (explaining the good cause and

excusable neglect standards); Abuelyaman v. Illinois State Univ., 667 F.3d 800, 807-08 (7th

Cir. 2011) (explaining the excusable neglect standard).

The current cost of filing an appeal with the Seventh Circuit is $605.00. The filing

fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e). If Russell cannot

afford to pay the entire filing fee up front, he must file a motion for leave to appeal in

forma pauperis (“IFP motion”) along with a recent statement for his prison trust fund

account. See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth the issues Russell

plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to proceed IFP

on appeal, he will be assessed an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He will

then be required to make monthly payments until the entire filing fee is paid. 28 U.S.C.

§1915(b)(2).

On the other hand, if Russell wants to start with the undersigned, he should file a

motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The

motion must be filed within 28 days of the entry of judgment, and the deadline cannot be

extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also comply with Rule 7(b)(1) and

state with sufficient particularity the reason(s) that the Court should reconsider the

judgment. Elustra v. Mineo, 595 F.3d 699, 707-08 (7th Cir. 2010); see also Blue v. Hartford Life

& Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to

amend judgment, a party must clearly establish (1) that the court committed a manifest

error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.”)

(citation and internal quotation marks omitted).

So long as the Rule 59(e) motion is in proper form and timely submitted, the 30-

day clock for filing a notice of appeal will be stopped. FED. R. App. P. 4(a)(4). The clock

will start anew once the undersigned rules on the Rule 59(e) motion. FED. R. App. P.

4(a)(1)(A), (a)(4), & (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the

28-day window or “completely devoid of substance,” the motion will not stop the clock

for filing a notice of appeal; it will expire 30 days from the entry of judgment. Carlson v.

CSX Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Martinez v. Trainor, 556 F.2d 818, 819-

20 (7th Cir. 1977). Again, this deadline can be extended only on a written motion by

Russell showing excusable neglect or good cause.

CONCLUSION

For reasons set forth above, Respondent’s Motion to Dismiss (Doc. 9) is

GRANTED, and the Petition (Doc. 1) is DISMISSED. As such, Russell’s Motion for

Status (Doc. 17) is DENIED as moot. The Court also declines to issue a certificate of

appealability. The Clerk of Court shall enter judgment accordingly and close this case.

IT IS SO ORDERED.

DATED: March 14, 2024

NANCY J. ROSENSTENGEL |

Chief U.S. District Judge

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