01-4336 Wilson v. Battles

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“Wilson relies on case law from other circuits in which courts have held that the term ‘pending’ encompasses time during which a petitioner could have sought further appellate review of a post-conviction petition. This argument is misplaced. In Wilson’s case, further appellate review was no longer available. Instead, the state supreme court rendered a final judgment on his petition. Although his petition could be resuscitated, further review by a higher state court was no longer available and therefore, his petition was no longer ‘pending.’ Fernandez, 227 F.3d at 979; see also, Gutierrez v. Schomig, 233 F.3d 490, 491 (7th Cir. 2000) (holding that the one-year limitations period is not tolled during the ninety-day period that a state post-conviction petitioner could have filed, but did not file, a petition for certiorari review in the United States Supreme Court). Habeas petitioners are not required to ask for a rehearing of the state court’s ruling in order to fulfill the exhaustion requirement. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). We agree with the district court that ‘there is [sic] difference between giving a petitioner credit for time needed to exhaust his state court remedies prior to filing a federal case . . . and continuing to toll it after the state’s highest court has ruled.’ United States ex rel. Wilson v. Battles, 2001 WL 1064536 (N.D. Ill. Sept. 10, 2001).”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Andersen, J., Bauer, J.