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U.S. EX REL. RODRIGUEZ v. BOWEN

United States District Court, Northern District of Illinois


March 25, 2003

UNITED STATES EX REL. GUADALUPE RODRIGUEZ (IDOC #R10896)
v.
EDWIN R. BOWEN, WARDEN

The opinion of the court was delivered by: Philip G. Reinhard, United States District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Guadalupe Rodriguez filed this habeas corpus petition on February 3, 2003, challenging multiple convictions for criminal sexual assault entered on February 14, 2002, in the Fifteen Judicial Circuit Court for Jo Daviess County, Illinois. It appeared from the petition and exhibits that petitioner had filed a motion in the Illinois Appellate Court, Second District, that the Appellate Court had understood as a motion to dismiss petitioner's pending direct appeal of his conviction, and that petitioner had filed a "Petition For Rehearing" dated December 9, 2002, attempting to reinstate the appeal.

In an order dated March 12, 2003, the court directed the respondent to inform the court whether petitioner's appeal had been reinstated, On March 21, 2003, respondent informed the court that petitioner' s appeal has been reinstated and is presently pending.

As stated in the court's prior order, a federal court may not grant a petition for habeas corpus brought by a person in custody pursuant to a state-court judgment unless the petitioner has exhausted any remedies that may be available in the state courts. 28 U.S.C. § 2254 (b)(1), (c). Further, a petitioner's failure to present a constitutional claim to the highest state court to which it may be appealed, in the manner required by state law, results in a procedural default that may prevent a federal court from deciding it, O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Except in a very unusual case, this requirement would not be satisfied if a petitioner bypassed trial and appellate courts and attempted to put his claims directly before the Illinois Supreme Court. See Castille v. Peoples, 489 U.S. 346 (1989). Unless petitioner follows established state procedures, he may forfeit any right to present his claims in federal court.

This petition is accordingly dismissed without prejudice for failure to exhaust state remedies. Petitioner may file a new petition after the state courts have addressed his claims. Petitioner's motion for appointment of counsel is denied as moot.

20030325

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