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United States ex rel Bell v. Mathy

January 14, 2009

UNITED STATES OF AMERICA EX REL. TIMOTHY BELL #B-70669, PETITIONER,
v.
JOE MATHY, ACTING WARDEN, ET AL., RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

Timothy Bell ("Bell") is an inmate at Pontiac Correctional Center ("Pontiac"), serving a four-year sentence on a conviction for aggravated battery to a peace officer. This pro se 28 U.S.C. §2254 ("Section 2254") action, however, challenges Bell's adjudication as a Sexually Violent Person following his unsuccessful pro se opposition to a petition for such an adjudication--opposition that extended beyond trial to an unsuccessful effort at an appeal.*fn1 Respondent Acting Warden Joe Mathy has timely complied with this Court's order that required an Answer to Bell's Petition.*fn2

Bell's Section 2254 claims are four in number, charging that the state trial court:

1. lacked subject matter and personal jurisdiction over Bell when it adjudicated him a Sexually Violent Person;

2. denied Bell the opportunity to question and impeach the state's witnesses during that proceeding;

3. denied Bell the opportunity to "challenge" evidence presented during the trial of the issue; and

4. "hand-picked" the jury and denied Bell the opportunity to eliminate biased jurors.

Because disposition of those claims depends in substantial part on Bell's failure to have exhausted all available state remedies, a threshold look will first be taken at Bell's attempted appeal from the Sexually Violent Person adjudication.

After that adjudication by the state trial court was made on October 18, 2007, Bell did not launch a timely appeal. Instead, nearly four months later he filed a February 5, 2008 motion seeking leave to initiate an otherwise time-barred appeal. That belated effort was twice rejected by the Illinois Appellate Court, initially on March 3, 2008 and then via an April 9 denial of Bell's motion for reconsideration of the initial rejection.*fn3

Bell seeks to explain--indeed to justify--that tardiness by asserting that his effort to appeal earlier was stymied by the state trial court, the result of a mixup in case numbers that was only caught later by the Clerk of the Illinois Supreme Court when Bell sought leave to appeal there. But this Court has obtained from the Illinois Appellate Court copies of Bell's motion for leave to file a late appeal and his motion for reconsideration of that court's denial (documents that Bell had not tendered to this Court), and it has reviewed those papers in conjunction with Bell's motion for leave to appeal to the Illinois Supreme Court on June 11, 2008.

What the state court documents reflect is that the Illinois Appellate Court twice turned Bell away for an independent and adequate state ground. And even if Bell were to be given the benefit of the doubt by viewing that twofold rejection as somehow suspect because of some confusion as to case numbering, Bell cannot escape the consequences of the Illinois Supreme Court's having thereafter denied leave to appeal on September 24, 2008, after that case numbering question had been cleared up. There is no possible basis for arguing that the Supreme Court's action rested on anything other than an independent and adequate state law footing.

Bell's failure to have raised his claims at each level of the state court system via direct appeal on a timely basis bars those claims as procedurally defaulted, making Section 2254 federal habeas relief unavailable. As the examples cited and quoted in respondent's Answer illustrate, our Court of Appeals may vary the precise language it employs in that respect, but the message is always the same:

"Under 28 U.S.C. §2254, before a state habeas petitioner is allowed to pursue his claims in federal court, he must exhaust his remedies in the state courts" (Guest v. McCann, 474 F.3d 926, 929 (7th Cir. 2007)).

"Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in the federal habeas proceeding does it make sense to speak of the exhaustion of state remedies" (Lewis v. Sternes, 390 F.3d 1019, 1025 (7th ...


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