The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by Chief United States District Judge G. Patrick Murphy pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion to Dismiss (Doc. 9), construed by the Court as a motion for summary judgment, filed by Plaintiff Teague on October 16, 2006. For the reasons set forth below, it is RECOMMENDED that the motion be GRANTED, that this case be DISMISSED,and that the Court adopt the following findings of fact and conclusions of law:
Petitioner, while incarcerated at the Menard Correctional Center, brought this habeas corpus action pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of his confinement. He filed his Petition (Doc. 1) on July 31, 2006. In the Court's August 29, 2006 Order (Doc. 4), the Court ordered that Respondent Uchtman "shall, within twenty-three (23) days of receipt of this application for Writ of Habeas Corpus, answer and show cause why the writ should not issue." (Doc. 4 at 1). Within twenty-three days of receiving the application, on September 28, 2006, Respondent Uchtman filed the instant Motion to Dismiss Petition for Writ of Habeas Corpus as Successive (Doc. 9), which the Court now construes pursuant to Federal Rule of Civil Procedure 12(d) as a motion for summary judgment.
In the Motion for Summary Judgment (Doc. 9), Respondent asserts that judgment as a matter of law is warranted because Petitioner's 28 U.S.C. § 2254 habeas petition is barred as a successive petition since it was filed without authorization from the United States Court of Appeals for the Seventh Circuit, as required by 28 U.S.C. § 2244(b)(3)(A). That section provides that the petitioner must "move in the appropriate court of appeals for an order authorizing the district court to consider" a successive habeas petition.28 U.S.C. § 2244(b)(3)(A).
Respondent states that Petitioner pled guilty on October 10, 2000, to a charge of armed robbery and was sentenced to twenty-three years of imprisonment (Doc. 9 at ¶ 2). Respondent then provides documentation that shows Petitioner previously filed a federal habeas corpus petition in this district on January 7, 2002, in case number 02-cv-14-MJR, pursuant to 28 U.S.C. § 2254. In that 2002 petition, Petitioner challenged his November 10, 2000, state court conviction for armed robbery (Doc. 9-2 at 1). Petitioner's case was dismissed by United States District Judge Michael J. Reagan because Petitioner failed to exhaust his administrative remedies, in that he filed a post conviction relief motion in state court that was still pending on the date of the Court's September 19, 2002 Order (Doc. 9-2 at 2).
The Court also made a finding, however, that even if Petitioner had exhausted his administrative remedies, his case would still be dismissed as it was not filed within the 1-year limitations period codified in 28 U.S.C. § 2244(d)(1). Accordingly, the Court dismissed the action with prejudice (Doc. 9-2 at 3). In the present action, Petitioner again brings a § 2254 habeas petition challenging the conditions of his confinement for the same underlying conviction at issue in his previous § 2254 petition (Doc. 1). He alleges that his post conviction relief motion filed in state Court is still pending (Doc. 1 at 3).
On July 24, 2007, this Court issued a Notice and Order to Respond (Doc. 12), which advised Petitioner regarding how to respond to Respondent's summary judgment motion and further warning of the consequences of failing to respond. The Court stated, "Unless you respond to this motion with sworn statements which contradict important facts claimed by Defendant in its materials, the Court will accept Defendant's uncontested facts as true." (Doc. 12 at 3). The Court then stated, "More importantly, you will lose this lawsuit, in whole or in part, if the Court determines that, under those unchallenged facts, Defendant is entitled to judgment under the law." (Doc. 12). The Court then granted Petitioner thirty days to file a response, and ordered him to respond on or before August 24, 2007 (Doc. 12-3). Petitioner failed to file a timely response.
Although Petitioner failed to respond to the motion, Petitioner briefly alleges in his Petition that this new petition is not barred procedurally because (1) he is now challenging the validity of a statute and, therefore, exhaustion is not required, (2) the statute of limitations should be equitably tolled since his state habeas corpus petition was never ruled upon, and (3) failure to grant him relief would constitute a fundamental miscarriage of justice (Doc. 1 at 16-18).
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only if it is demonstrated "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999); Dempsey v. Atchison, Topeka and Santa Fe Railway Company, 16 F.3d 832, 836 (7th Cir. 1994). The burden is upon the moving party to establish that no material facts are in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999). A fact is material if it is outcome determinative under applicable law. Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999); Smith v. Severn, 29 F.3d 419, 427 (7th Cir. 1997); Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1173 (7th Cir. 1997). Even if the facts are not in dispute, summary judgment is inappropriate when the information before the court reveals a good faith dispute as to inferences to be drawn from those facts. Plair v. E.J. Brach & Sons, Incorporated,105 F.3d 343, 346 (7th Cir. 1997); Lawshe v. Simpson, 16 F.3d 1475, 1478 (7th Cir. 1994); Dempsey, 16 F.3d at 836. Finally, summary judgment "will not be defeated simply because motive or intent are involved." Roger v. Yellow Freight Systems, Inc., 21 F.3d 146, 148 (7th Cir. 1994). See also, Miller,168 F.3d at 312; Plair, 105 F.3d at 347; Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261 (7th Cir. 1993); Lac Du Flambeau Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249, 1258 (7th Cir. 1993).
In deciding a motion for summary judgment, the trial court must determine whether the evidence presented by the party opposed to the summary judgment is such that a reasonable jury might find in favor of that party after a trial.
The inquiry performed is the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.
[T]his standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can ...