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Schoffner v. Hulick

August 9, 2007

CLEODIOUS SCHOFFNER, JR., PETITIONER,
v.
DON HULICK, RESPONDENT.



The opinion of the court was delivered by: David RHerndon United States District Judge

MEMORANDUM and ORDER

HERNDON, District Judge

I. Introduction and Background

Pending before the Court is a Report and Recommendation ("the Report") submitted by Magistrate Judge Clifford J. Proud recommending that the Court dismiss with prejudice as untimely Schoffner's petition for writ of habeas corpus (Doc. 17). Schoffner filed objections to the Report (Doc. 18). Based on the following, the Court adopts the Report in its entirety.

On August 14, 2006, Cleodious Schoffner, Jr., an inmate within the Illinois Department of Corrections housed at Menard Correctional Center, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Schoffner's petition alleges: (1) ineffective assistance of trial counsel; (2) trial court erred when it refused to grant a change of venue; (3) the prosecutor erred in delivering his opening statement; (4) he was not proven guilty beyond a reasonable doubt; (5) ineffective assistance of appellate counsel; (6) his sentence violated Apprendi; (7) the theory of accountability was not charged, but that the jury was instructed and he was convicted under the theory of accountability; (8) trial court erred when it imposed a sentence of natural life imprisonment; (9) the statute on first degree murder under the theory of accountability is unconstitutional; and (10) his first 2-1401 collateral attack was not untimely. On November 17, 2006, Respondent filed a motion to dismiss arguing that Schoffner's petition for writ of habeas corpus is untimely (Doc. 10). Schoffner filed a reply to the motion to dismiss on December 12, 2006 (Doc. 14) and a minor correction on January 26, 2007 (Doc. 15). On June 20, 2007, Magistrate Judge Proud entered a Report pursuant to 28 U.S.C. § 636(b)(1)(B) (Doc. 17). The Report recommends that the Court grant Respondent's motion to dismiss and dismiss with prejudice Schoffner's petition for writ of habeas corpus as time-barred.

The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" within ten days of service of the Report. To date, Schoffner filed objections to the Report (Doc. 18). Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P.72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.

II. Procedural History

On March 3, 1998, after being convicted by a jury, Schoffner was sentenced to natural-life imprisonment for two murders that occurred during the armed robbery of a convenience store committed by Schoffner and his cousin, Glen Schoffner. He was also convicted of armed robbery, aggravated battery with a firearm and aggravated kidnaping, for which he was sentenced to 10 years imprisonment, to run consecutive to the life sentence. On December 6, 1999, the Illinois Appellate Court, Fifth District, denied his appeal. Schoffner did not file a petition for leave to appeal with the Illinois Supreme Court.

On July 22, 1999, Schoffner filed a pro se post conviction petition pursuant to 725 ILCS 5/122-1. On July 17, 2001, the circuit court dismissed the petition, finding that "most if not all of the issues raised" were "res judicata and/or waived," and the other issues were not meritorious. On April 23, 2004, the Illinois Appellate Court, Fifth District, affirmed the circuit court's dismissal. Thereafter on October 7, 2003, the Illinois Supreme Court denied Schoffner's petition for leave to appeal.

On June 30, 2004, Schoffner, again proceeding pro se, filed a second collateral attack upon a void judgment pursuant to 735 ILCS 5/2-1401. Another (seeming identical) petition was filed on October 27, 2004. On March 1, 2005, the circuit court denied the collateral attacks finding that no new judicable issues were presented and the petition was untimely. On January 26, 2006, the Illinois Appellate Court, Fifth District, affirmed the circuit court holding that the petition was out of time and that Schoffner's arguments had no merit. On May 24, 2006, the Illinois Supreme Court denied Schoffner's petition for leave to appeal.

On September 20, 2004, Schoffner filed a petition for writ of habeas corpus pursuant to § 2254 in this judicial district, Schoffner v. Hinsley, 04-cv-0673-MJR (Doc. 1). On November 5, 2004, District Judge Michael J. Reagan dismissed without prejudice Schoffner's petition because Schoffner acknowledged in his petition that he had not exhausted all of his issues through the state court process. Id. (Doc. 4).

On October 26, 2005, Schoffner filed another petition for relief from judgment pursuant to 735 ILCS 5/2-1401. It appears from the record that this collateral attack is still pending.

III. Analysis

With regard to the Report and petition at issue here, th Court determines that Magistrate Judge Proud made a correct analysis and that Schoffner's objections only demonstrate a misunderstanding of the law. The Court finds ...


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