The opinion of the court was delivered by: Richard Mills, U.S. District Judge
This case is before the Court on the Petitioner's amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Also pending is the Respondent's motion to dismiss for failure to exhaust, the Petitioner's motion to appoint counsel, and the motion of Assistant Attorney General Russell K. Benton to substitute as counsel for the Respondent.
The Court will DENY the Petitioner's motion to appoint counsel. There is no constitutional right to the assistance of counsel in post-conviction proceedings. See Jenkins v. Gramley, 8 F.3d 505, 508 (7th Cir. 1993). The motion of attorney Russell K. Benton to substitute as counsel for the Respondent will be ALLOWED.
On September 1, 1993, Petitioner Patrick O'Connor pled guilty but mentally ill in the Circuit Court of Cook County to first degree murder and aggravated criminal sexual assault. The Petitioner was sentenced to serve concurrent prison terms of 50 years for murder and 20 years for aggravated sexual assault. The Petitioner's counsel on direct appeal filed a motion for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). On February 6, 1995, the motion was granted by the Illinois Appellate Court, First District, and that court affirmed the judgment of the circuit court. People v. O'Connor, No. 1-94-0651 (unpublished order under Supreme Court Rule 23).
On May 22, 1995, the Petitioner filed a post-conviction petition under 730 ILCS 5.122-1, et seq. On September 2, 1998, he filed a supplemental petition, wherein he argued that the trial court should have conducted a fitness hearing because he was taking psychotropic medication when he pled guilty, counsel was ineffective in failing to request a fitness hearing, and retrospective fitness hearings were insufficient to protect his due process rights. On December 2, 1998, the State filed an amended motion to dismiss, which was granted by the trial court on March 12, 1999.
In his appeal, the Petitioner alleged that the trial court erred as a matter of law in dismissing his post-conviction petition when he did not receive a fitness hearing, despite there being a bona fide doubt concerning his fitness. The Petitioner also argued that the case should not be remanded for a retrospective fitness hearing under People v. Burgess, 680 N.E.2d 357 (Ill. 1997), because: (1) Burgess should not be applied retroactively to his case; (2) his case did not fall into the category of cases in which a retroactive fitness hearing was appropriate; and (3) retrospective fitness hearings were insufficient to protect the due process right to a fair trial. On January 19, 2001, the state appellate court reversed and remanded for an evidentiary hearing, determining that the Petitioner's post-conviction petition should not have been summarily dismissed. The court also instructed that, if on remand the circuit court determined that the trial court of conviction erred in failing to conduct a fitness hearing, then a retrospective hearing under Burgess would be appropriate. People v. O'Connor, No. 1-99-1339 (unpublished order under Supreme Court Rule 23).
On remand, the state post-conviction trial court ordered a retrospective fitness hearing on October 3, 2002. On March 24, 2003, the court issued a special order finding that Petitioner would have been unfit at the time of his original plea. A new fitness hearing was held and on July 28, 2004, the Petitioner was found fit for trial.
On October 26, 2005, the Petitioner again pleaded guilty but mentally ill to murder and aggravated criminal sexual assault. He was sentenced to serve 44 years imprisonment for murder, and a consecutive term of 6 years for aggravated criminal sexual assault.
The Petitioner filed a post-conviction petition on March 30, 2006, contending: (1) his guilty but mentally ill plea was coerced; (2) he was denied his right to a speedy trial; (3) counsel was ineffective for allowing his constitutional rights to be violated; (4) he was arrested without probable cause; (5) no probable cause determination was made within 48 hours of his warrantless arrest; (6) he was convicted under an unconstitutional statute; (7) the prosecution destroyed key blood and DNA evidence, and counsel was ineffective for failing to raise the issue; (8) the prosecution used the statements of a paid witness to establish probable cause for Petitioner's arrest, and neither the court nor defense counsel was informed of the payment; and (9) his new sentence was illegal since he began to serve his original 50-year sentence on August 29, 1991, and thus should be released.
On June 12, 2006, the Circuit Court of Cook County dismissed the post-conviction petition, finding that the claims were waived, that the Petitioner had not shown he was entitled to file a successive post-conviction petition, and that the petition was frivolous and patently without merit. The Petitioner filed a motion to reconsider, which was denied. On July 18, 2006, the Petitioner appealed, and that appeal is pending before the Illinois Appellate Court, First District as case No. 1-06-2090.
On November 28, 2006, the Petitioner filed his amended petition for habeas corpus relief in this Court, which alleges that: (1) he was unjustly arrested; (2) counsel did not file an appeal; (3) his post-conviction petition should have been heard in 90 days, but is still pending after 14 years; (4) he was denied his Fourth Amendment and due process rights when a probable cause determination for his warrantless arrest was not made within 48 hours of that arrest; (5) due process requires that motions for continuances be made in writing, but over 169 oral motions for continuances were granted in state court, allowing the State to delay his case indefinitely; (6)counsel coerced Petitioner into pleading guilty but mentally ill, and appellate counsel failed to make any argument on his behalf; (7) the prosecution withheld blood and DNA evidence and appointed counsel failed to raise any issue regarding this behavior; (8) the State coerced Petitioner into pleading guilty but mentally ill by holding him at jail without bond in deplorable conditions; (9) he was denied his right to a speedy trial; (10) the Petitioner's sentence violated double jeopardy, and he has already served his original sentence; and (11) the prosecution withheld the fact that it used the testimony of a paid witness to inflame the court during sentencing.
The basis of the Respondent's motion to dismiss is that the Petitioner has a collateral appeal pending in the state appellate court from the dismissal of his post-conviction petition. The post-conviction petition in state court contains many of the same claims that Petitioner raises on federal habeas review. Accordingly, the Respondent asks ...