Atkins v. Wills

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UNITED STATES DISTRICT COURT                            
             FOR THE NORTHERN DISTRICT OF ILLINOIS                       
                       EASTERN DIVISION                                  

WILLIAM ATKINS, N-52198         )                                        
                                )                                        
               Petitioner,      )  Case No. 1:18-cv-07559                
                                )                                        
          v.                    )  Judge Sharon Johnson Coleman          
                                )                                        
ANTHONY WILLS,1                 )                                        
                                )                                        
               Respondent.      )                                        

               MEMORANDUM OPINION AND ORDER                              

    Petitioner William Atkins brings his petition for writ of habeas corpus pursuant to
28 U.S.C. 
§ 2254
.  In his petition, initially filed pro se and represented on reply, Petitioner petitions the Court to 
vacate his conviction of the January 1981 murder of Elvio Mercuri, for which he was sentenced to life 
imprisonment in January 2009.  Because Petitioner’s habeas petition is untimely and equitable tolling 
is inapplicable, Petitioner’s habeas petition is dismissed as untimely.   
Background                                                                

    Unless otherwise noted, the following facts are drawn from the state appellate court opinion 
on direct review following Atkin’s second trial, People v. Atkins,
2011 IL App (1st) 090740-U
, available 
at Dkt. 19, Ex. A.  See Thompkins v. Pfister,
698 F.3d 976, 983
(7th Cir. 2012) (“The state court’s factual 
determinations are entitled to a presumption of correctness, and the petitioner has the burden of 
overcoming this presumption by clear and convincing evidence.”).  Because Petitioner’s habeas 
petition is untimely, the Court focuses on the procedural background of the petition.   

1 Respondent Jacqueline Lashbrook is no longer the Warden at Menard Correctional Center.  The Court substitutes the 
current Warden, Anthony Wills, as respondent.  See Fed. R. Civ. P. 25(d). 
    A. Trial and direct appeal                                           
    In 2003, Petitioner and his codefendant, Ivory Lloyd, were charged with the 1981 murder of 

Elvio Mercuri.  As set forth in the state court proceedings, at 1:30am on January 4, 1981, Mercuri and 
his girlfriend T.C. were parked in front of T.C.’s home after finishing a date.  Petitioner and Lloyd, 
who was armed with a pistol, forced their way into Mercuri’s car, struck Mercuri in the face, pushed 
Mercuri into the backseat of the car, and drove away.  Petitioner drove the car while Lloyd proceeded 
to rape T.C.  At one point, the car stopped, and Petitioner and Lloyd pulled Mercuri from the back 
seat and threw him the trunk of the car.  Mercuri was then shot once in the neck, killing him.  Petitioner 
and Lloyd then returned to the car, this time with Lloyd driving while Atkins raped T.C.  After driving 
further, Petitioner and Lloyd left the car, which allowed T.C. to drive away and get help.   
    In 2009, following a jury trial, Petitioner was found guilty of murder and sentenced to life 
imprisonment.  On direct appeal, Petitioner argued that his trial counsel provided ineffective assistance 
by failing to request a Frye hearing before the admission of fingerprint evidence.  Frye v. United States,
293 F. 1013
(D.C. Cir. 1923).  The appellate court affirmed his conviction, finding that Petitioner 

could not establish any prejudice in support of his claim that the failure to request a Frye hearing 
amounted to ineffective assistance of counsel.  The judgment of the appellate court was entered on 
October 11, 2011.  Petitioner then filed a petition for leave to appeal (PLA) to the Illinois Supreme 
Court, which denied that appeal on January 25, 2012.                      
    B.  Postconviction investigation                                     
    Before the appellate court affirmed the judgment of the trial court, Petitioner and his family 
began preparing for the possibility of filing postconviction motions.  Petitioner alleges that on March 
3, 2011, his brother, Toby Gross, paid his attorney, Herb Goldberg, to file his postconviction motions 
by October 23, 2012.  (Dkt. 3.)2  In the interim, Petitioner drafted a pro se postconviction motion.  
(Dkt. 3, Ex. C.)  In May 2012, Petitioner states that he was coordinating with another attorney to file 
his pro se postconviction motion pro bono when Gross told him that Goldberg would file a 
postconviction motion on his behalf.
Id.
Gross then called the pro bono attorney and told her that 
they would no longer require her assistance.
Id.
Up to and after the October 23 deadline passed without Goldberg filing his motion, Petitioner 

states that he tried “numerous times” to contact Goldberg.  (Dkt. 3.)  When he was able to contact 
Goldberg, Goldberg advised Petitioner that “he’d be filing an actual innocence claim on Petitioner’s 
behalf and further stated that there was no time limit on [an] actual innocence claim.”
Id.
As such, 
Petitioner claims that he “had no other recourse except to wait on Attorney Goldberg to file an actual 
innocence claim in which he was supposed to challenge his alleged confession.”
Id.
Still, on October 
31, 2012, Petitioner filed a motion in the Cook County Circuit Court for an extension of time to file 
his postconviction petitions.  (Dkt. 3, Ex. C.)  This motion was denied by the Court on November 6, 
2012.  (Dkt. 3, Ex. D.)                                                   
    After his motion for an extension was denied, Petitioner does not say whether he took action 
to file his postconviction motion pro se before the statutory deadline, which was April 24, 2013.  
Petitioner did, however, file a complaint against Goldberg to the Illinois Attorney Registration and 
Disciplinary Commission (ARDC) for failing to file his postconviction motion.   

    Goldberg’s response to the ARDC’s investigation tells a different story than Petitioner’s 
narrative.  In his letter, Goldberg states that in May 2011, he was paid by Gross to conduct a review 

2 On November 14, 2018, Petitioner filed his writ of petition for habeas corpus.  (Dkt. 1.)  At that time, Petitioner also 
filed a pro se motion to stay the proceedings during the pendency of his actual innocence petition and to allow equitable 
tolling of his petition.  (Dkt. 3.)  While the Court denied this motion for being premature and duplicative of Petitioner’s 
habeas petition, the motion included several unlabeled attachments relevant to Petitioner’s habeas petition.  The Court 
refers to these attachments as follows: Exhibit A—Receipts of payments to Goldberg for postconviction investigation; 
Exhibit B—Statement by Goldberg to ARDC regarding Petitioner’s complaint; Exhibit C—Letter by Petitioner to ARDC 
in response to Goldberg Statement; Exhibit D—Denial of Petitioner’s Motion for Extension of time to file Post-
Conviction Petition.                                                      
of Petitioner’s files for “possible Post Conviction relief.”  (Dkt. 3, Ex. B.)  From that point on, 
Goldberg says that he had “numerous three way conversations” with Gross and Petitioner regarding 
the possibility of filing a petition on behalf of Petitioner.
Id.
In June 2012, Goldberg received the final payment from Gross for his investigation.  At that 
point, Goldberg stated the following on a receipt for this payment:       
       Toby Gross has paid $2500 to Herb Goldberg as final portion due for Atkins 

       Post Conviction Investigation.  The issue found to exist is the validity of Mr. 
       Atkins statements.  If it can be established that said confession was coerced 
       by police then a post-conviction petition will be filed on his behalf.  The only 
       costs due would be the costs of transcripts, investigators, filing fees. 
(Dkt. 3, Ex. A.)  Sometime after this payment, Goldberg states that he told Petitioner and his family 
that the only viable issues he could find were related to the validity of Petitioner’s confession, and that 
“the petition would be predicated upon his ‘actual innocence.’”
Id.
Goldberg then states that he 
informed Petitioner and his family that he would only be filing a petition of actual innocence.3 
    C.  Postconviction proceedings                                       

    On October 9, 2015, Petitioner filed a pro se postconviction petition before the Cook County 
Circuit Court.  (Dkt. 19, Ex. M.)  The court denied the petition on January 6, 2016, which was affirmed 
by the appellate court on appeal on April 27, 2018.  (Dkt. 11.)  On June 13, 2016, Petitioner filed a 
petition for actual innocence in the Cook County Circuit Court.4  On May 29, 2018, Petitioner filed a 
PLA of the appellate court’s decision, which was denied by the Supreme Court on September 26, 


3 Petitioner does not include any more details or documentation regarding the outcome of the ARDC investigation.  A 
review of the ARDC database showed no public record of discipline and pending proceedings for Goldberg.  See “Herbert 
Louis Goldberg,” ARDC of the Supreme Court of Illinois, https://www.iardc.org/Lawyer/Search (last visited Nov. 18, 
2024).                                                                    
4 As of January 18, 2024, this petition is still pending before the circuit court.  (Dkt. 57.) 
2018.  Petitioner then filed the present habeas petition before the Court on November 14, 2018, which 
was entered on the docket on January 15, 2019, after Petitioner paid the filing fee.   
    The Court now turns to this petition.                                
Discussion                                                                

    A. Timeliness of Petitioner’s petition                               
    As  a  threshold  matter,  Petitioner  concedes  that  his  § 2254  petition  is  untimely.    The 
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
110 Stat. 1214
, sets a 1-year statute 
of limitations for seeking federal habeas corpus relief from a state-court judgment.  Lawrence v. Florida,
549 U.S. 327, 331
,
127 S. Ct. 1079
,
166 L. Ed. 2d 924
(2007);
28 U.S.C. § 2244
(d)(1).  This limitations 
period is tolled while a state prisoner seeks postconviction relief in state court.  In cases such as the 
present case where the petitioner was not impeded from filing an application by unconstitutional State 

action, § 2244(d)(1)(B), and the petitioner is not basing his petition on a right newly recognized by the 
Supreme Court, § 2244(d)(1)(C), or the discovery of new evidence, § 2244(d)(1)(D), the limitations 
period begins on the date on which the judgment became final by “the conclusion of direct review or 
the expiration of the time for seeking such review.”  § 2244(d)(1)(A).  The Supreme Court has 
construed this statutory language as meaning that direct review concludes when the availability of 
direct appeal to the state courts and to the Supreme Court has been exhausted.  Jimenez v. Quarterman,
555 U.S. 113, 119
,
129 S. Ct. 681
,
172 L. Ed. 2d 475
(2009).              
    Here, the Illinois appellate court affirmed Petitioner’s conviction on October 11, 2011, (Dkt. 
19, Ex. A.), and the Illinois Supreme Court denied his PLA on January 25, 2012.  (Dkt. 19, Ex. F.)  
Supreme Court Rule 13 provides that a petition for a writ of certiorari seeking review of a judgment 
of a state court must be filed within 90 days of entry of judgment to be timely.  Sup. Ct. R. 13.  As 
such, Petitioner’s judgment became final on April 24, 2012, and his petition for postconviction relief 
was therefore due one year later by April 24, 2013.  Because Petitioner filed his petition for 
postconviction relief on October 9, 2015, and the instant § 2254 petition on November 14, 2018, his 
petition is indeed untimely.                                              
    B.  Applicability of equitable tolling                               

    Even though his petition is untimely, Petitioner argues that equitable tolling of the statute of 
limitations should be applied to his petition because his prior counsel—Goldberg—failed to file the 
necessary postconviction motions in state court.  (Dkt. 32; Dkt. 57.)  Equitable tolling is “an 
exceptional remedy” available to a habeas petitioner who shows: “(1) that he has been pursuing his 
rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely 
filing.”  Taylor v. Michael,
724 F.3d 806, 810
(2013) (quoting Holland v. Florida,
560 U.S. 631
, 649,
130 
S. Ct. 2549
,
177 L. Ed. 2d 130
(2010).  Petitioners bear the burden of proving that they qualify for 
equitable tolling.  Ray v. Clements,
700 F.3d 993, 1007
(7th Cir. 2012); see also Pace v. DiGuglielmo,
544 
U.S. 408, 418
,
125 S. Ct. 1807
,
161 L. Ed. 2d 669
(2005).                 
    Petitioner argues that his case meets both prongs of the test set forth in Holland.  As to the 

first prong, Petitioner argues that he was under the impression that Goldberg had filed the necessary 
postconviction motions in state court, and that it was “not until recently” that he learned that 
Goldberg did not file these motions.  (Dkt. 57.)  Once he learned that his postconviction motions had 
not been filed, Petitioner states that he “acted diligently, and to the best of his ability, researched and 
prepared the necessary state court filings followed by the petition in this case.”  (Id.)  As to the second 
prong, Petitioner argues that his “abandonment by counsel,” his limited education, and his limited 
access to the prison law library combine to present extraordinary circumstances that prevented him 
from timely filing his petition and therefore warrant equitable tolling.  (Dkt. 57.)   
    The Supreme Court’s opinion in Holland sets a high bar that petitioners must meet to show 
that they diligently pursued their rights in the face of extraordinary circumstances in the habeas 
context.  Taylor,
724 F.3d at 810
.  There, Holland, an inmate on death row, repeatedly sought assurance 
from his attorney that his claims would be preserved for federal habeas review and that the statutory 
deadlines for his filings would be met, to which his attorney would respond in an irregular and delayed 
manner.
Id.
at 810–11.   When Holland learned that the state supreme court had denied his 
postconviction petition for relief and that his AEDPA time limit had expired twelve days later, 
Holland immediately wrote his own pro se federal habeas petition using the prison library and mailed 

it to the district court just five weeks later.
Id. at 811
.  Supported by extensive records of his attempts 
at communicating with his attorney, the Supreme Court ultimately found that Holland’s actions 
satisfied the due diligence requirement for equitable tolling, “emphasizing that ‘reasonable diligence’ 
rather than ‘maximum feasible diligence’ was the standard.”
Id.
(quoting Holland, 560 U.S. at 653).   
    Petitioner’s argument that he acted diligently to file his postconviction petitions both fail to 
meet the standard set forth by Holland and are contradicted by his filings in support of his petition.  
Contrary to his statement that he did not learn until recently that his postconviction motions had not 
been filed, both Petitioner and Goldberg state that on or around October 23, 2012, Petitioner and his 
family were aware that Goldberg was not going to file a postconviction petition and instead was going 
to file a petition for actual innocence.  At that point, Petitioner had just over 180 days to file his already 
drafted pro se postconviction motion or to arrange with another attorney to file his petition on his 
behalf.  But Petitioner did not file his postconviction petition until October 9, 2015—approximately 

three years after learning that Goldberg would not be filing one on his behalf.  Instead, Petitioner filed 
and pursued an ARDC complaint against Goldberg for his alleged failure to file his postconviction 
petition.                                                                 
    Whether Petitioner “misunderstood his attorney’s advice, or his attorney gave him bad 
advice,” Taylor,
724 F.3d at 811
, Petitioner still waited three years to file his postconviction motion.  
This delay cannot support a finding of reasonable diligence, nor does it show that “extraordinary 
circumstances” prevented Petitioner from filing.  See Griffith v. Rednour,
614 F.3d 328, 331
(7th Cir. 
2010) (‘It may be negligent to wait until what is by a lawyer’s own calculation the last possible day, 
because such a calculation could be wrong.  But this kind of negligence 1s not ‘extraordinary’ by any 
means.  Such a blunder does not extend the time for filing a collateral attack.”). 
     “When an inmate, despite roadblocks thrown in his way, has reasonable time remaining to file 
a habeas petition in a timely manner, the circumstances cannot, as a definitional matter, be said to 
have prevented timely filing, as the standard requires.”  Taylor,
724 F.3d at 812
.  Because Petitioner 
failed  to  show that he  acted  diligently to  file his  postconviction petition and  that extraordinary 
circumstances prevented him from timely filing this petition, equitable tolling is inapplicable and his 
petition is therefore untimely. 
Conclusion 

     Because  Petitioner’s  habeas  petition  is  untimely  and  equitable  tolling  is  inapplicable, 
Petitioner’s petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254
is dismissed as untimely 
[11].  ‘The Court declines to issue a certificate of appealability under Rule 11 of the Rules Governing 
Section 2254 cases in the United States District Courts because there is no substantial showing of a 
denial of a constitutional right in this case.  See Davis v. Borgen,
349 F.3d 1027, 1028
(7th Cir. 2003) 
(setting forth requirements for a certificate of appealability).  Petitioner may request a certificate of 
appealability from the Seventh Circuit Court of Appeals.  ‘The Clerk is instructed to: (1) terminate 
Respondent Lashbrook;  (2)  add Petitioner’s  present custodian, Anthony Wills, Warden, Menard 
Correctional Center, and (3) alter the case caption to _Afkins v. Wills. 
IT IS SO ORDERED. 
Date: 11/18/2024                               AL LOO 
                                   Entered:                         
                                          SHARON  JOHNSON COLEMAN 
                                          United States District Judge