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El-Bey v. Johnson

December 29, 2009

AARON DOYLE PINKSTON EL-BEY, PETITIONER,
v.
YOLANDA JOHNSON, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is before the Court on Petitioner, Aaron Doyle Pinkston El-Bey's, Motion to Proceed In Forma Pauperis and Petition for Writ of Habeas Corpus. For the reasons set forth below, the Motion to Proceed In Forma Pauperis [#2] is DENIED, and his Petition for Writ of Habeas Corpus must be DISMISSED FOR LACK OF JURISDICTION.

Background

On February 28, 1978, Petitioner was convicted of Armed Robbery, Aggravated Battery, and Aggravated Assault in the Circuit Court of Livingston County, Illinois. He was sentenced to concurrent terms of 30-90 years for armed robbery, 3-10 years for aggravated battery, and 3-10 years for aggravated assault. On appeal to the Illinois Appellate Court, his convictions and sentences were affirmed. The Illinois Supreme Court denied leave to appeal on November 28, 1978. According to the Petition, Petitioner unsuccessfully pursued post-conviction relief, which was denied on May 5, 1980.

Following the denial of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in 1986, Petitioner filed a second petition for post-conviction relief on August 31, 1992, but that petition was summarily denied as untimely. A third post-conviction petition, filed as a Motion for New Trial, was filed in 2006. The order dismissing the petition was entered on May 10, 2006, and the dismissal was affirmed on appeal on August 24, 2007.

Petitioner has now filed the present § 2254 Petition in an attempt to collaterally attack his 1978 conviction in Livingston County, Illinois. In this Petition, he claims: (1) the trial court failed to advise him of the availability of a third sentencing system under which he would have served less time; (2) he was denied equal protection in his post-conviction proceeding as a result of his attorney pursuing the wrong subsection of the insanity defense; and (3) he was not advised of his right to appeal his post-conviction ruling. This Order follows.

Discussion

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214 (April 24, 1996) (the "Act"), amended the law as it pertains to the filing and processing of habeas corpus petitions, including the treatment of second or successive petitions. The current law concerning second and successive habeas petitions is found in 28 U.S.C. § 2244(b)(2), which provides:

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless --

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

* * * (3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a ...


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