Espinoza v. Spiller
| Carlos Espinoza |
| Tom Spiller and Attorney General of the State of Illinois |
| 1:2015cv00888 |
| January 28, 2015 |
| US District Court for the Northern District of Illinois |
| Chicago Office |
| Cook |
| Milton I. Shadur |
| General |
| 28 U.S.C. ยง 2254 |
| None |
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Filing
9
MEMORANDUM Opinion and Order: In response to the 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus ("Petition") filedby counsel for Carlos Espinoza ("Espinoza") to challenge Espinoza's state court bench trial convicti on on charges of first degree murder, attempt first degree murder and aggravated discharge of a firearm, this Court promptly examined the Petition and found it to be untimely filed. Because untimeliness is an affirmative defense rather than a jurisd ictional bar, this Court's February 10, 2015 memorandum opinion and order ("Opinion") both set out its analysis on the timeliness front and inquired of the respondent Warden's counsel, the Office of the Illinois Attorney General, whether it wished to assert or to waive that available limitation defense.On February 20 the Assistant Attorney General assigned to the case filed this brief Statement as to Time-Bar Defense:Respondent wishes to assert the defense that petitioner 9;s 28 U.S.C § 2254 habeas petition is time-barred.That being the case, this Court dismisses both the Petition and this action as untimely filed, a dismissal that is with prejudice. Signed by the Honorable Milton I. Shadur on 2/23/2015:Mailed notice(clw, )
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Filing
5
MEMORANDUM Opinion and Order, Although it would seem highly unlikely, it is perhaps possible that the government might view the Petition's patent misreading of that statutory structure as somehow excusable (remember that the violation of a stat ute of limitations is not a jurisdictional flaw). To deal with that possibility (however remote) this Court is today transmitting a copy of this opinion to the Illinois Attorney General's Office as well as to Espinoza's counsel. This action is set for an initial status hearing at 9 a.m. February 24, 2015, at which time the Assistant Attorney General assigned to the case is ordered to advise, as stated at the outset of this opinion, whether that office wishes to assert or to waive the limitation defense as analyzed in this opinion. Signed by the Honorable Milton I. Shadur on 2/10/2015:Mailed notice(clw, ) Modified on 2/10/2015 (clw, ).
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