The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
On October 17, 2008, following a bench trial in the Circuit Court of Cook County, Donnie Brown was convicted of burglary and sentenced to a six year prison term. Brown filed a timely notice of appeal on October 31, 2008. The Office of the State Appellate Defender was appointed as counsel for his appeal.
On May 8, 2009, Brown filed a petition for a writ of habeas corpus in this Court. Brown alleges that he was convicted of a crime he did not commit and that his incarceration therefore violates the Eighth Amendment of the U.S. Constitution. Frank Shaw, the warden of the facility where Brown is currently incarcerated, has moved to dismiss Brown's petition on the ground that Brown has not exhausted available state court remedies as required by 28 U.S.C. § 2254(b).*fn1 For the reasons below, the Court grants Shaw's motion to dismiss.
Brown was convicted of burglary and on October 17, 2008 and was sentenced to a six year prison term, with credit for 326 days already served. On October 31, 2008, Brown filed a notice of appeal. The Illinois Office of the State Appellate Defender (OSAD) was appointed to represent Brown on appeal. On April 28, 2009, an attorney from OSAD appeared in the Illinois Appellate Court on Brown's behalf and requested an extension of time to submit the trial record, which was granted until June 22, 2009. The trial record was certified on May 12, 2009 and was received by OSAD on May 26, 2009. On July 8, 2009, an OSAD attorney appeared again in the Appellate Court and requested an extension of time to file Brown's opening appellate brief, which was granted until September 2, 2009. The deadline for filing Brown's opening brief was recently extended again, to January 4, 2010.
Brown filed a petition for a writ of habeas corpus in this Court on May 8, 2009. On May 16, 2009, the Court ordered Brown to show cause why his petition should not be dismissed without prejudice for failure to exhaust state court remedies. In his response, Brown does not claim that he has exhausted his state court remedies; rather, he asks the Court to excuse the lack of exhaustion and hear his habeas corpus petition on the merits.
Brown asserts that the process of his appeal has not progressed since he filed his notice of appeal nearly fourteen months ago, on October 31, 2008. Brown states that he received a letter from OSAD explaining that it pursues cases in the order in which the office was appointed and that because of high caseloads, it would be some time before his appeal proceeded. Brown alleges that because of the long delay in his state court appeal, he is likely to be released from detention before his appeal is decided.*fn2
Brown asserts that his incarceration is unconstitutional because he did not commit the crime for which he is currently incarcerated. In support, he attached to his petition an affidavit from Yarnell Brown, who was a co-defendant in Brown's criminal case and who pled guilty to the burglary. In it, Brown states that he committed the burglary and "that Donnie Brown and Christopher Evans [another co-defendant] never had anything to do with" it.
Shaw argues that regardless of Brown's claim of innocence, he cannot pursue a habeas corpus petition in federal court because has not exhausted state court remedies. Shaw therefore asks the Court to dismiss Brown's petition without prejudice. Shaw argues that Brown's petition does not satisfy the limited exceptions that allow a federal habeas corpus petition to proceed without exhaustion of state court remedies.
Shaw further argues that the delay in Brown's appeal is attributable to Brown, not the state. Therefore, Shaw claims, there is no grounds for excusing the failure to exhaust state court remedies, independent of how long those proceedings may have been delayed.
An application for a writ of habeas corpus "shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). "Where state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim to the state courts, the exhaustion doctrine precludes a federal court from granting his relief on that claim." Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). A district court has the option of denying such a claim on its merits. 28 U.S.C. § 2254(b)(2). But if a district court does not deny the claim on the merits, the district court should typically dismiss the habeas petition without prejudice "so that the petitioner may return to state court in order to litigate the claim." Perruquet, 390 F.3d at 514.
There are limited circumstances under which a petitioner's habeas corpus petition may proceed in federal court despite a failure to exhaust state court remedies. First, a delay in the state process may be long enough to permit a district court to deem a petitioner's state court remedies exhausted and proceed to evaluate the constitutional claims raised by the habeas corpus petition. Second, a long delay may itself ...