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United States ex rel Edwards v. Austin

December 27, 2007

UNITED STATES OF AMERICA EX REL. XAVIER EDWARDS, PETITIONER,
v.
DAN AUSTIN, ET AL., RESPONDENTS.



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

MEMORANDUM ORDER

Xavier Edwards ("Edwards") has filed a Notice of Appeal, accompanied by a Motion for Certificate of Appealability, an In Forma Pauperis Application ("Application") and other related documents, seeking to appeal from this Court's December 27, 2007 memorandum opinion and order ("Opinion")*fn1 that dismissed Edwards' 28 U.S.C. §2254*fn2 Petition for Writ of Habeas Corpus - Person in State Custody ("Petition") because it was insufficient as a matter of law. Because Edwards has asserted that he is entitled to a certificate of appealability on the mistaken premise that this Court found the Petition barred by limitations, and also because in substantive terms the Petition clearly failed to identify any federal constitutional violation that could provide Edwards with Section 2254 relief, this Court finds and certifies that his appeal "is not taken in good faith" within the meaning of Section 1915(a)(3), so that no certificate of appealability should issue.

But before this Court turns to those issues, Section 1915(b)(1) requires Edwards to pay the full $455 in appellate filing fees "[n]otwithstanding subsection (a)." This Court has accordingly made the calculation called for by that statutory provision, and it finds that the average monthly deposits to Edwards' trust fund account at Pinckneyville Correctional Center ("Pinckneyville," where he is serving his prison term) during the relevant six-month period came to $163.03, so that his required initial payment on account of those filing fees is $32.60 (20% of that average figure). Accordingly Edwards is assessed that initial fee of $32.60, and the Pinckneyville trust fund officer is ordered to collect that amount from Edwards' trust fund account there and to pay it directly to the Clerk of Court ("Clerk"):

Office of the Clerk

United States District Court 219 South Dearborn Street Chicago IL 60604 Attention: Fiscal Department After such payment, the trust fund officer at Pinckneyville (or at any other correctional facility where Edwards may hereafter be confined) is authorized to collect monthly payments from his trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments collected from the trust fund account shall be forwarded to the Clerk each time the amount in the account exceeds $10 until the full $455 filing fee is paid. Both the initial payment and all future payments shall clearly identify Edwards' name and the notation "Appeal from District Court Case No. 07 C 7196." To implement these requirements, the Clerk shall send a copy of this order to the Pinckneyville trust fund officer.

Now back to Edwards' claims referred to earlier. As to the first of those, Opinion at 2 expressly held that Edwards' "current filing [is brought] within the one-year period of limitations specified in Section 2244(d)(1)(A)." And as for Edwards' substantive claims, Opinion at 2-4 explains this Court's view that Edwards does not possess even a colorable claim that is viable in Section 2254 terms.

Accordingly this Court finds that no certificate of appealability should issue. Edwards is advised that he may present his request for a certificate of appealability to the Court of Appeals.

Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Xavier Edwards ("Edwards") has filed a 28 U.S.C. § 2254*fn3 Petition for Writ of Habeas Corpus - Person in State Custody ("Petition"), seeking relief from his conviction and sentence of 20 years for second degree murder and 10 years for aggravated battery with a firearm. This Court has reviewed the Petition in accordance with Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts ("Rule 4"), and it finds the Petition insufficient as a matter of law. But before this memorandum opinion and order turns to that subject, two procedural matters should be addressed.

First, Edwards has accompanied the Petition with an In Forma Pauperis Application ("Application"), apparently unaware of the modest $5 fee that applies to Section 2254 petitions. On that score a copy of this memorandum opinion and order is being sent to the Pinkneyville Correctional Center, where he is now in custody, with a direction that a check for the $5 fee payable to the Clerk of the United States District Court be transmitted forthwith to the Clerk's office (with the check to bear a reference to this Case No. 07 C 7196):

Office of The Clerk

United States District Court 219 S. Dearborn Street, Chicago, IL 60604 Attention: Fiscal Department Next, the Petition has been submitted more than a year after November 29, 2006, when the Illinois Supreme Court denied leave to appeal from Edwards' unsuccessful effort to obtain reversal on his direct appeal before the Illinois Appellate Court for the First District.*fn4 But because the 90 days after that denial within which Edwards could have applied to the United States Supreme Court for a writ of certiorari is added to the November 29 date (Andersen v. Litscher, 281 ...


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