United States District Court, N.D. Illinois
March 31, 2004.
MICHAEL GILYARD, Petitioner,
JERRY L. STERNES, Warden, Respondent.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Michael Gilyard filed his petition for habeas corpus
relief in 2001. The case comes now before the Court on several motions
the Petitioner has filed: (1) Petitioner's Motion for Leave to Conduct
Discovery; (2) Petitioner's Motion for Summary Judgment; (3) Petitioner's
Motion for Sanctions; and (4) Petitioner's Motion for Judgment on the
Pleadings and Release on Personal Recognizance. For the reasons set forth
below, all four of Petitioner's motions are denied.
I. PROCEDURAL BACKGROUND OF THIS HABEAS CASE
While most habeas cases that arrive in federal district court have a
complicated procedural background from the state courts, they usually
follow a straight-forward path in the federal courts; not so, with
Petitioner Gilyard. Petitioner Michael Gilyard ("Petitioner" or
"Gilyard") filed his petition for habeas corpus relief with this Court in
August 2001, and it was received in this Court on August 22, 2001. On
August 27, 2001, the Court issued Petitioner a rule to show cause as to
why his petition was not time-barred under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). After granting the
Petitioner an extension of time, when he failed to respond to the rule to
show cause, the Court summarily dismissed the Petition as time-barred on
October 16, 2001.
Petitioner appealed the dismissal to the Seventh Circuit. The Seventh
Circuit granted Gilyard a Certificate of Appealability on April 9, 2002
on two of the constitutional questions presented in his petition.
Additionally, Petitioner argued that his petition was not time-barred
pursuant to Smith v. Walls. 276 F.3d 340 (7th Cir. 2002) (per curiam), a
case that was decided after his petition was dismissed. Respondent
agreed, and urged the Seventh Circuit that this Court's judgment "must be
reversed." (Resp. Br. on Appeal, at 7). On January 16, 2003, in a one
page order, the Seventh Circuit recognized that the "respondent . . .
conceded error" and "reverse[d] the district court judgment and
remand[ed] the case for further proceedings." Gilyard v. Sternes, No.
02-1063, Order of Jan. 16, 2003 (7th Cir. 2003) (unpublished order).
That order was docketed in this Court on February 11, 2003.
On March 11, 2003, the Respondent filed its Answer to the habeas corpus
petition. Subsequently, the Petitioner filed the motions that are
presently pending before the Court. On December 8, 2003, before this
Court ruled on those motions or on Petitioner's habeas petition,
Petitioner filed a Notice of Appeal in the Seventh Circuit. On December
19, 2003, the Seventh Circuit recognized in an order that the habeas
case was still pending in this Court. Petitioner's efforts to establish
that the Seventh Circuit had appellate jurisdiction were unavailing and
on March 4, 2004, the Court dismissed his appeal.
One of Petitioner's asserted grounds for filing the premature appeal
listed above was that he did not feel this Court was proceeding to a
judgment on the merits in his habeas petition in an
expeditious fashion. Although premature notices of appeal do not
divest the district court of jurisdiction, see King v. Gibbs.
876 F.2d 1275, 1278 (7th Cir. 1989), the pendency of the appeal does cast some
doubt on the district court's role in the case. Rather than speeding the
plow, then, Petitioner's decision to file the appeal actually delayed
disposition of this case. With both appeals resolved, the Court will now
issue its decision on Petitioner's motions. Provided there are no further
premature appeals, both parties can expect a written decision on the
issues in Gilyard's underlying habeas petition in the near future.
II. PETITIONER'S MOTION FOR LEAVE TO CONDUCT DISCOVERY
Petitioner seeks leave to conduct discovery in this habeas case.
Rule 6 of the Rules Governing § 2254 Cases gives the District Court
discretion to grant leave for discovery upon a showing of good cause.
Petitioner's Motion requests that the Respondent furnish him with a copy
of a laboratory report prepared by forensic expert Robert Wilson relating
to the weapon that was used in this case. Petitioner's Motion asserts
that the investigative report would demonstrate that the gun was prone to
misfire. In Petitioner's view, this would corroborate his version of the
facts supporting his conviction, to wit, that he lacked the requisite
intent to commit the crime. In light of the presumption of correctness
that is afforded to state court findings of fact, the Court finds that
Petitioner has not shown good cause for this discovery to issue.
Consequently his motion is denied.
III. PETITIONER'S MOTION FOR SUMMARY JUDGMENT
Shortly after the Seventh Circuit reversed this Court's denial of his
habeas petition on timelieness grounds, Petitioner filed his Motion for
Summary Judgment. Petitioner's Motion asserts that Respondent waived the
procedural default defenses it presently asserts to ground two
(ineffectiveness of counsel relating to jury instruction issues)
and ground five (unconstitutionally vague underlying felony conviction
cannot support felony-murder) of his Petition when Respondent failed to
present those arguments to the Seventh Circuit on appeal.
When this case went to the Seventh Circuit on appeal (the first time),
the Seventh Circuit was reviewing the judgment of this Court, which was
limited to the issue of whether Gilyard's habeas petition was timely
filed. While it is true that the Seventh Circuit can affirm the district
court on any ground that the record presents, where a case has been
disposed of on timeliness alone, due process concerns counsel strongly
against an affirmal based on anything other than the statute of
limitations question. Both parties are entitled to one full and fair
round of litigation in the federal district court on the issues
Petitioner's habeas petition presents. Consequently, the Respondent's
failure to assert procedural default arguments to the Seventh Circuit on
appeal will not act as a waiver of its ability to present those
arguments in response to the merits of Gilyard's habeas petition.
Additionally, summary judgment motions are not required or encouraged
in habeas cases. The issues presented in habeas petitions rarely require
further factual development outside of the state court record, which the
Respondent is obliged to file with its Answer. Consequently, summary
judgment motions in habeas cases do not narrow and isolate factual
issues for trial as they do in other civil cases. Although there is no
strict prohibition on filing summary judgment motions, they are
certainly uncommon, especially in this district. See United States ex
rel. Brookhouse v. Ahiton, No. 97-C-642, 1997 WL 445936, at *4 n.2 (N.D.
Ill., Aug. 1, 1997) (describing summary judgment motions as
inappropriate in habeas cases) but sec Randle v. Scott. 43 F.3d 221, 225
(5th Cir. 1995) (summary judgment motions are permissible in habeas
For these reasons, the Court denies Petitioner's Motion for Summary
III. PETITIONER'S MOTION FOR SANCTIONS
Petitioner has filed a Motion for Sanctions against Respondent for
asserting procedural defenses to two of the grounds for relief in his
habeas petition. Petitioner's Motion for Sanctions is without merit.
Respondent's procedural defenses are arguably warranted by existing law
and there is no indication that have they been asserted for an improper
litigation purpose. Petitioner's Motion for Sanctions is consequently
IV. PETITIONER'S MOTION FOR JUDGMENT ON THE PLEADINGS AND RELEASE
ON PERSONAL RECOGNIZANCE
Petitioner filed a Motion for Judgment on the Pleadings and Release on
Personal Recognizance, and recently filed a renewed Motion seeking the
same relief. In the renewed Motion, Petitioner asserts that he has
recently been diagnosed with a tumor in his abdomen that will require
surgery. He seeks release on his personal recognizance in part so that he
could "get at least a second opinion and hospitalization at any Veterans
Medical Center by virtue of him having been honorably discharged from the
Navy." (Pet. Renewed Motion at 5, ¶ 10). While the Court is
sympathetic to Plaintiffs medical needs, it finds that release on
personal recognizance while the habeas petition is still pending is not
The portion of the motion seeking an entry of judgment on his habeas
petition is also denied. As noted above, the Court will issue its ruling
on the underlying issues in Gilyard's habeas petition in the near
For the reasons set forth above, Petitioners' Motions are denied.
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