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December 2, 2005.

TIMOTHY BELL, Petitioner,
BRADLEY J. ROBERT, Respondent.

The opinion of the court was delivered by: MARK FILIP, District Judge

Petitioner, Timothy Bell ("Petitioner" or "Bell"), seeks a writ of habeas corpus against Respondent, Bradley J. Robert, Warden of the Centralia Correctional Center ("Centralia") in Centralia, Illinois. For the reasons stated below, Bell's petition for a writ of habeas corpus ("Petition") is respectfully dismissed without prejudice.


  Petitioner is imprisoned pursuant to a judgment of the Illinois courts. That judgment followed a bench trial in April 2003 in which Bell was convicted of criminal sexual assault, for which he later was sentenced to a prison term of eight years. (D.E. 8 (amended habeas petition) at 1; D.E. 13 at 1.)*fn1 Bell states that he is due to be released from Centralia on March 2, 2006, and that he could be released sooner if he is awarded good-time credits. (D.E. 14 at 6.)

  On July 31, 2003, Bell filed a timely notice of appeal from his conviction in the Illinois courts. (D.E. 14, Ex. B at 6.) For the appeal, Bell initially retained the same private attorney who represented him at trial, but, according to Bell's filings in state court, he was unable to make payments to his retained attorney, who then halted work on his appeal. (D.E. 13, Ex. B at 1.) Bell states, in an unsworn statement, that he contacted the "Law office of the public Defender" on March 3, 2004 (or over seven months after he filed his notice of appeal) to assist him in obtaining new counsel. (Id. Ex. B at 3, ¶ 7.) Bell also states that he submitted a letter dated March 12, 2004, addressed to the appellate court, that requested appointed counsel (specifically the Appellate Defender) because his retained counsel was ineffective at trial. (D.E. 14, Ex. D at 2.) This letter was not stamped "Received" by the appellate court (see id.), nor does it appear on the docket sheet. (See id., Ex. B.) Petitioner states that he filed a motion for appointment of counsel on June 1, 2004 (D.E. 14 at 4); the appellate court denied the motion on June 9, 2004.*fn2 (Id., Ex. B at 7.)

  On June 10, 2004, the appellate court dismissed Bell's appeal for want of prosecution, explaining that he had violated Illinois Supreme Court Rule 326, in that he failed to file the record on appeal within the prescribed time period. (D.E. 13, Ex. C.) On June 30, 2004, Petitioner filed a petition for rehearing in the appellate court, asking that his appeal be reinstated and that the court appoint him new counsel. (Id., Ex. B.) On July 16, 2004, the appellate court granted Bell's petition for rehearing, reinstated his appeal, and appointed the Office of the State Appellate Defender ("Appellate Defender") to represent Bell. (Id., Ex. D.) Petitioner also filed a motion for transcripts that appears to have been filed on July 23, 2004, and that was denied on July 28, 2004. (D.E. 14, Ex. B at 7.)

  On September 7, 2004, the Appellate Defender requested that the Clerk of the Circuit Court of Cook County (the "Clerk") prepare the record and ordered transcripts from 23 days of trial proceedings. (D.E. 13, Ex. E at 1, 3-4.) The common law record was delivered to the Appellate Defender on September 14, 2004. (D.E. 14, Ex. B at 7.) The Court Reporter filed the trial transcripts with the Clerk on May 2, 2005. (D.E. 13, Ex. G at 3.) In the interim, the Appellate Defender filed five motions for extension of time; the appellate court ultimately granted all five motions. (Id., Ex. F.) Although the transcripts were filed on May 2, 2005, it appears that the Clerk certified the transcripts on August 13, 2005. (D.E. 13 at 3.) As is the Appellate Defender Office's policy, once the transcripts were certified, the Appellate Defender assigned Bell an attorney, who began analyzing the record and identifying issues for appeal. (See, e.g., D.E. 14, Ex. F at 3.)

  Petitioner also filed a request for an investigation of his appointed counsel with the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois (the "Commission"). This request was denied on March 17, 2005; the Commission concluded that "there is not a sufficient basis for this agency to pursue charges of professional misconduct." (Id., Ex. C at 1.)*fn3

  In June 2005 and August 2005, Petitioner filed a pro se petition for a writ of habeas corpus and an amended petition for writ of habeas corpus in federal court, pursuant to 28 U.S.C. § 2254. (D.E. 1, 8.) The gravamen of the petitions was that Illinois had unduly delayed the adjudication of Bell's direct appeal, combined with a request that the federal courts instead adjudicate in the first instance those claims that otherwise would proceed in the Illinois appellate courts. (E.g., D.E. 1 at 5; D.E. 8 at 3.) At the Court's direction, the State was ordered to promptly file a limited answer, addressing only the exhaustion issue. (D.E. 10.) The State answered in late August. (D.E. 13.) Bell filed a lengthy response to the State's answer (D.E. 14), and the State replied to that filing. (D.E. 15). The parties' filings reflect that in the time since the habeas petitions were filed, the Appellate Defender appointed an attorney who has reviewed the record and filed an appellate brief. (E.g., D.E. 15 at 2-3.) The filings also explain that the appeal has been given top priority by the Appellate Defender pursuant to its uniform office policy, which prioritizes the oldest cases first. (E.g., D.E. 13 at 3; D.E. 14, Ex. F at 1; D.E. 15 at 3.) Since the time when the limited answer was filed, the appellate court has set a briefing schedule for Bell's appeal. Petitioner filed his opening brief for the direct appeal on October 11, 2005, and the response brief is due December 27, 2005.*fn4 In the Illinois Court of Appeals, reply briefs are typically due 14 days after the filing of response briefs, so the briefing cycle in the case should be completed within the next several weeks. See Ill. Sup. Ct. R. 343, 612.

  1. Standard of Review

  A district court typically may not provide habeas relief unless the petitioner has exhausted his available remedies in state courts, 28 U.S.C. § 2254(b), and any petition containing unexhausted claims must be dismissed or stayed. See, e.g., Rhines v. Weber, ___ U.S. ___, 125 S. Ct. 1528, 1535 (U.S. Mar. 30, 2005). Exhaustion occurs when the petitioner has fairly presented his claim to the state courts by arguing both the federal legal principles and the salient and operative facts of the claim, thereby giving the state courts a "meaningful opportunity to pass upon the substance of the claims later presented in federal court." Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001) (collecting cases) (internal quotation marks and citation omitted). Exhausting all state remedies includes presenting each claim on appeal to the Illinois appellate court and in a petition to the Illinois Supreme Court for discretionary review. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir. 2003) (holding that the rule applies for purposes of habeas corpus under Section 2254).

  Exhaustion is not required, however, when the state does not make a corrective process available, or when the available process is ineffective to protect a petitioner's rights. 28 U.S.C. § 2254(b); Sceifers v. Trigg, 46 F.3d 701, 703 (7th Cir. 1995). A sufficiently undue or inordinate delay in the state proceedings may make the available state remedies ineffective. See id.; Jenkins v. Gramley, 8 F.3d 505, 508 (7th Cir. 1993). Caselaw reflects that there is no bright line as to what constitutes undue or inordinate delay, and that a case-sensitive assessment is required, including, at times, a hearing to explore sufficiently undue and unexplained delays. See generally Lane v. Richards, 957 F.2d 363, 365 (7th Cir. 1992) (declining to require hearing where one was not required to evaluate material issues).

  If a petitioner has not exhausted the available state remedies, the district court typically dismisses "his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim." Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). The rule against successive petitions does not bar a petitioner from refiling once he exhausts his available state remedies. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1993) (stating that no cases hold that "a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition"); see id. ("[a] court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition").

  Dismissal is the typical response to a petition filed prior to exhausting the available state remedies; however, the Court may, in the interest of comity or judicial economy, deny a habeas petition on the merits. 28 U.S.C. § ...

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