The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
On June 3, 2005, the Court denied Jones's petition for writ of
habeas corpus in part because his claims were procedurally
defaulted and in part because his claims lacked merit. (See
6/3/05 Mem. Op. and Order.) Jones now moves for reconsideration
and, pursuant to 28 U.S.C. § 2253(c) and Federal Rule of
Appellate Procedure 22(b), seeks a certificate of appealability
("COA") on the procedurally defaulted claims. For the reasons
stated below, Jones's motion for reconsideration is denied and
Jones's motion for COA is also denied.
Jones requests reconsideration and a COA, stating this Court
should have dismissed claims two and four of his habeas petition
("claims two and four") without prejudice, instead of with
prejudice, so that Jones could file a petition for discretionary
review in state court. We begin with Jones's motion for
reconsideration. Rule 60(b) allows a court to reconsider a final
judgment on the grounds of mistake, inadvertence, surprise or
excusable neglect; newly discovered evidence, fraud, a void
judgment, a judgment satisfied, or "any other reason justifying
relief." Fed.R.Civ.P. 60(b). Under rule 60(b), relief is "an extraordinary remedy and is
granted only in exceptional circumstances." McCormick v. City of
Chicago, 230 F.3d 319, 327 (7th Cir. 2000). The Seventh Circuit
has found that where a claimant has not yet exhausted all
available avenues in state court, his claim is unexhausted and a
district court can properly dismiss the claim without prejudice.
Dixon v. Page, 291 F.3d 485, 487 (7th Cir. 2002) (affirming
that district court properly dismissed an unexhausted claim
without prejudice); 28 U.S.C.S. § 2254(c). To have fully
presented a claim, or to have exhausted a claim and be eligible
for federal review, an individual must have cycled through "one
complete round of the State's established appellate review
process, meaning he must have "present[ed] his claims to a state
supreme court [via] a petition for discretionary review."
O'Sullivan v. Boerckel, 526 U.S. 838, 839-40, 845 (1999). While
exhaustion pertains to issues that may still be raised in state
court but have not yet been presented there, procedural default
refers to issues that could have been presented, but were not,
and therefore may no longer be raised. Resnover v. Pearson,
965 F.2d 1453, 1458 (7th Cir. 1992). Further, if a petitioner is not
granted relief from the Illinois Supreme Court, the "federal
court will consider the petitioner's claims to be technically
exhausted." Resnover v. Person, 965 F.2d 1453, 1458 (7th Cir.
1992). Unless the petitioner can, with a showing of good cause,
establish why he did not present an issue when the opportunity
was available, federal review will not be possible. Norris v.
U.S., 687 F.2d 899, 901 (7th Cir. 1982).
Here, the Court determined that Jones's second and fourth
claims of his habeas petition were procedurally defaulted.
Although those claims could have been raised in Jones's appellate
and post-conviction proceedings, he failed to do so and was
consequently precluded from having those claims considered in
federal review. Jones has exhausted all of his opportunities with
the Illinois state courts. He appealed the circuit court decision
and contrary to his contentions, Jones did file a petition for leave to appeal on April 4, 2001, and was denied on
December 19, 2001. In March 20, 2003, he filed leave to file
instanter with the Illinois Supreme Court. He was granted leave
to file and his motion was subsequently denied on June 4, 2003.
There has been no mistake, neglect or newly surfaced evidence
that will enable us to reconsider the decision. Jones has not
presented any exceptional circumstances to prove that he has
unexhausted avenues to pursue in state court, nor has he shown
good cause as to why he did not include his contested issues in
the state appellate proceedings. Therefore, because claims two
and four are considered exhausted, their dismissal with prejudice
We next address Jones's motion for COA. Jones rehashes his
reconsideration arguments to support his request for COA. He also
contends that this Court incorrectly determined that, despite
their procedural deficiencies, the merits of claims two and four
may not be addressed. He states that the Court should have been
able to reach the merits of the claims because he has shown cause
and a fundamental miscarriage of justice. To obtain a COA, Jones
must prove that there was a "substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2).
First, Jones has not offered any support to demonstrate that
his own failure to raise issues in his leave to appeal to the
Illinois Supreme Court was based on a denial of his
constitutional rights or that this Court denied him any
constitutional rights in its decision that the claims were
procedurally defaulted. In the same vein, Jones did not
articulate any barriers or obstacles that may have infringed upon
his constitutional rights and precluded him from filing. In
short, Jones has not made a substantial showing that the Court
denied him of any right in its prior determination. Therefore as
to his first issue, Jones motion for COA is denied. Second, in our previous order, this Court determined that Jones
had not presented an objective factor that proved he was unable
to present his issues in state court and concluded that he did
not establish cause to allow us to reach the merits of his
procedurally defaulted claims. Furthermore, quoting Murray v.
Carrier, 477 U.S. 478, 496 (1986), the Court also concluded that
a fundamental miscarriage of justice applies only in
"extraordinary cases, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent . . ." and that Jones did not present new evidence to
establish his innocence. We found that Jones's case does not fall
within the narrow exception articulated in Murray, and there is
no showing that despite the default, Petitioner's claim should be
reviewed due to prejudice or a miscarriage of justice. Jones
simply reargues issues previously raised and decided in his
habeas petition. Jones has not made a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
Therefore his motion for COA on the second issue is also denied.
For the reasons set forth above, Jones's motion for
reconsideration is denied. Jones's motion for COA is also denied.
© 1992-2005 VersusLaw ...