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United States ex rel Lindsey v. Trancoso

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


November 29, 2007

UNITED STATES OF AMERICA EX REL. JERRI ROBBIN LINDSEY #B49150, PETITIONER,
v.
WARDEN CAROLYN TRANCOSO, RESPONDENT.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

Jerri Robbin Lindsey ("Lindsey") once again seeks to obtain federal habeas relief through a 28 U.S.C. §2254 Petition for Writ of Habeas Corpus ("Petition"), challenging her 1995 state court conviction on charges of first degree murder and first degree armed robbery, which resulted in a 45-year custodial sentence. Lindsey's efforts to obtain such federal relief seem to have been somewhat snake-bitten:

1. When Lindsey first sought such relief in Case No. 06 C 3213, this Court was compelled to dismiss her Petition because Lindsey's filing acknowledged that she had not yet exhausted all of her state court remedies. That disposition did not of course address the substance of any of Lindsey's claims, nor did it consider whether the Petition was already untimely in all events.

2. After Lindsey then went about successfully exhausting her state post-conviction remedies, she wrote a January 6, 2007 letter to this District Court so stating.

Unfortunately that letter was simply lodged in the Clerk's Office, without any notification to this Court of its existence or any delivery to this Court of a copy of the letter.

3. It was only when Lindsey wrote a follow-up letter directly to this Court on October 23 that this Court learned of the situation, and it promptly issued the attached November 7 memorandum order ("Order").

Now Lindsey, pursuant to the Order's directive, has refiled her Petition under the new case number shown in the caption of this memorandum order. Although this Court has previously obtained copies of the state court orders referred to in the Order, it appears that the most appropriate course of action is to require the respondent Warden to answer the Petition in accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. That answer must be filed on or before January 11, 2008, and it is expected to address the issue of timeliness or untimeliness as well as the merits of Lindsey's claims. This Court will then determine what further proceedings are called for.

Regrettably the January 6, 2007 letter that pro se petitioner Jerri Robbin Lindsey ("Lindsey") wrote to this Court, reporting that she had then exhausted all of her state post-conviction remedies,*fn1 was simply filed in the Clerk's Office without any notification to this Court of its existence or any delivery to this Court of a copy of the letter. Accordingly this Court was totally unaware that the defect in Lindsey's Petition that had led to its dismissal had been cured until Lindsey wrote a follow-up letter on October 23.

This Court has taken immediate steps to follow up on the case, including its obtaining the three unpublished orders of the Illinois Appellate Court for the First District*fn2 and the Illinois Supreme Court's November 29, 2006 denial of leave to appeal the Appellate Court's dismissal of the state post-conviction petition. Those documents confirm Lindsey's satisfaction of the exhaustion requirement and therefore call for further proceedings.

Accordingly this Court:

1. directs Lindsey to refile her Petition so that it may be assigned a new case number in place of the previously dismissed Case No. 06 C 3213;*fn3

2. will treat Lindsey's initial Motion for Appointment of Counsel as applicable to the new case and, when the new case is filed, will grant that motion, for which purpose this District Court's regularly-employed procedure for appointments from its trial bar will be followed;

3. will also order the Illinois Attorney General's Office to file, on behalf of the respondent Warden, within 49 days after the new case is filed, an answer to the new Petition in accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts.*fn4 This Court will then determine what further proceedings are necessary.

Date: November 7, 2007


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