Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thomas v. Austin

May 15, 2008

TOMMY THOMAS, PETITIONER,
v.
DANIEL AUSTIN, WARDEN, CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Wayne R. Andersen, District Judge Pinckneyville

MEMORANDUM OPINION AND ORDER

This matter comes before the court on respondent Daniel Austin's motion to dismiss the petition for writ of habeas corpus filed by Tommy Thomas. For the following reasons, the motion to dismiss [25] is granted.

BACKGROUND

Petitioner Tommy Thomas (K-67563), a state prisoner incarcerated at Pinkneyville Correctional Center, filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 14, 2007, challenging his 1998 conviction for murder on a variety of state law and constitutional grounds. He was sentenced to a term of 55 years imprisonment, which he currently is serving. Thus far, petitioner has filed five federal habeas petitions for relief, two based on his 1998 conviction and three based on a 1996 conviction for unlawful use of a weapon. Only the instant habeas petition remains pending before the court.

On August 28, 2007, petitioner filed a motion for the recusal of the judge pursuant to 28 U.S.C. § 455 and a motion for an order to show cause on October 1, 2007, both of which were denied. After filing motions for a extensions of time to respond the motion to dismiss, petitioner was given a final extension until April 11, 2008 to respond to the motion. Petitioner still has not filed any response. The court now will address the merits of respondent's motion to dismiss the petition as untimely.

PROCEDURAL HISTORY

In 1998, a jury in the Circuit Court of Cook County convicted petitioner of first-degree murder in the shooting death of James Walker, attempted first-degree murder, and aggravated discharge of a firearm in Case No. 95-CR31444. On August 26, 1998, the trial court sentenced him to 55 years in prison. Petitioner appealed to the Illinois Appellate Court, raising ten claims of error. The Appellate Court affirmed on June 21, 2001. Petitioner filed a petition for rehearing, which was denied on August 14, 2001. Petitioner later filed a another motion regarding his direct appeal on September 13, 2001, which was denied on September 20, 2001. Petitioner did not file a petition for leave to appeal in the Illinois Supreme Court.

Sometime in November 2000, petitioner filed a state habeas complaint in the Circuit Court of Cook County pursuant to 735 ILCS 5/10-101, arguing that in his 1998 case: (1) the prosecutor knowingly relied on false testimony; (2) the prosecutor failed to disclose impeachment evidence; and (3) his conviction violated the Double Jeopardy Clause. After it was dismissed, petitioner appealed to the Illinois Appellate Court. A Cook County public defender was appointed to represent him, but the public defender subsequently moved to withdraw asserting that petitioner's arguments lacked merit. The Appellate Court ultimately granted counsel's motion and affirmed petitioner's conviction on October 3, 2001.

On October 23, 2003, petitioner filed another state habeas complaint in the Circuit Court of Knox County challenging his 1998 conviction. Thomas v. Hulick, No. 03-MR-61. The state court dismissed the complaint on November 8, 2004. Petitioner did not appeal this dismissal.

On or about November 17, 2005, petitioner filed a petition for relief from judgment in the Circuit Court of Cook County pursuant to 735 ILCS 5/2 1401, arguing that his 1996 conviction for unlawful use of a weapon was invalid and that the prosecutor used perjured testimony to introduce this 1996 conviction into evidence at his sentencing hearing in 1998. People v. Thomas, No. 95-CR-31444. On January 13, 2006, the trial court dismissed the petition as frivolous and patently without merit and assessed court fees and costs against petitioner. Petitioner appealed. People v. Thomas, No. 1-06-0552. In a brief filed January 19, 2007, petitioner argued that: (1) the trial court violated due process by dismissing his petition for post judgment relief without notice and a hearing; and (2) the trial court's assessment of court fees and costs violated due process and equal protection. This appeal currently is pending.

Petitioner filed another petition for relief from judgment in the Circuit Court of Cook County on August 23, 2006, claiming that his 1998 conviction violated his constitutional rights because the trial court did not advise him at sentencing that he would serve three years of mandatory supervised release in addition to his prison term. People v. Thomas, 95-CR-31444. The petition was denied on September 18, 2006, and petitioner again appealed to the Illinois Appellate Court. People v. Thomas, No. 1-06-3196. This appeal also is pending.

Petitioner has filed five federal petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254(d) challenging both his 1996 and 1998 convictions. Four petitions have been dismissed thus far: three challenging his 1996 conviction, which were dismissed with prejudice; and one challenging the 1998 conviction, which was dismissed without prejudice.

On January 4, 2005, petitioner filed a habeas corpus petition in the Northern District of Illinois, Thomas v. Hulick, No. 05-C-0042, challenging his 1996 conviction for the unlawful use of weapons. This court dismissed the petition as time-barred on March 17, 2005. Subsequently, petitioner filed two additional habeas petitions in the Northern District of Illinois that were successive to his initial petition in Case No. 05-C-0042. First, he filed a petition in Thomas v. Flagg, No. 06-C-1844, which again challenged his 1996 conviction for unlawful use of weapons. The court dismissed the petition as successive on May 3, 2006. Petitioner filed a motion to vacate, which was denied on May 1, 2007. On March 1, 2007, petitioner filed another habeas petition in Thomas v. Walker, No. 07-C-2412, again challenging his 1996 conviction. The court dismissed that petition as successive on June 18, 2007.

On May 19, 2005, petitioner filed a petition for writ of habeas corpus in the Southern District of Illinois, challenging his 1998 conviction for murder. Thomas v. Evans,No. 05-359-MJR. On June 1, 2005, the Southern District of Illinois transferred the case to this court, which was re-designated No. 05-C-3359. This court ordered petitioner to pay the filing fee or move to proceed in forma pauperis. He did ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.