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.

Nitz v. Sigler

March 31, 2010

RITA JO NITZ, N/K/A RITA JO BROOKMYER, PETITIONER,
v.
MARY SIGLER, RESPONDENT.



The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

In April 1997, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking relief from the "natural life" sentence imposed for the 1988 murder of Michael D. Miley. The petition, which was filed in the United States District Court for the Central District of Illinois, was transferred to this District. In December 1997, United States District Judge Paul E. Riley, Sr., dismissed without prejudice the petition with leave to reinstate after resolution of state post-conviction proceedings. In December 2000, attorney Paul G. Christenson entered his appearance on behalf of Petitioner and filed, on her behalf, a motion to reinstate. The case then was reassigned to United States District Judge William D. Stiehl, who granted the motion to reinstate. An amended petition was filed in May 2001. In March 2004, Judge Stiehl granted Petitioner's second request to dismiss without prejudice the petition with leave to reinstate after resolution of additional state post-conviction proceedings. In November 2006, Petitioner was granted leave to reinstate, and she filed a second amended petition in January 2007. Since October 2006, Petitioner has been proceeding pro se. In December 2008, United States Magistrate Judge Clifford J. Proud issued a Report and Recommendation (Doc. 60), which recommends that the petition be denied in all respects. Petitioner timely filed objections thereto (Doc. 62).*fn1 The case was reassigned to the undersigned district judge on May 7, 2009.

Where timely objections are filed, this Court must undertake a de novo review of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court "may accept, reject or modify the magistrate judge's recommended decision." Harper, 824 F. Supp. at 788. In making this determination, the Court must look at all of the evidence contained in the record and "give 'fresh consideration to those issues to which specific objections have been made.'" Id., quoting 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part) (emphasis added). However, where neither timely nor specific objections to the Report and Recommendation are made, pursuant to 28 U.S.C. § 636(b), this Court need not conduct a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).

The Report and Recommendation clearly outlines the basic factual and procedural background of this case and the arguments presented. Therefore, this Court will address only those facts to which Petitioner has lodged a specific objection. While her objections are couched as factual objections, they are really objections to the conclusions drawn from the facts. The Court will refer to Petitioner's arguments as enumerated in the Report and Recommendation (see Doc. 60, pp. 6-9).

After conducting a lengthy, detailed, and thorough analysis of the arguments, Magistrate Judge Proud recommends that a majority of Petitioner's arguments be dismissed as time barred -- specifically, Issues 5(f), 5(g), 5(i); Issue 6; Issues 7(a), 7(b), 7(c); Issues 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g), 8(h); Issue 9; Issue 10; Issue 11; Issue 13; and Issue 14. He recommends that several other arguments be dismissed because they assert errors of state law, which are not cognizable on federal habeas review -- specifically, Issues 4(c), 4(d); Issues 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g), 8(h);*fn2 and Issues 12(a), 12(b), 12(c). He further recommends that some claims be dismissed because they are procedurally defaulted, either because they were not fully and fairly presented to the state court (lack of fair presentment) or because the state court's decision rested on a state law ground that was independent of the federal question and adequate to support the judgment (procedural bar). Specifically, Magistrate Judge Proud concludes that Issue 3(b); Issue 5(h); Issue 6; Issues 7(a), 7(b), 7(c); Issues 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g), 8(h); Issue 11; Issue 12(a); Issue 13; and Issue 14 were not fully and fairly presented and that such procedural default cannot be excused. He concludes that Issue 4(a); Issues 5(f), 5(g), 5(i); Issue 9; and Issue 10 are procedurally barred because their dismissal was based on an independent and adequate state law ground and that such procedural default cannot be excused.*fn3 With respect to the merits of the remaining claims -- specifically, Issue1; Issue 2; Issue 3(a); Issue 4(b); and Issues 5(a), 5(b), 5(c), 5(d), 5(e) -- Magistrate Judge Proud concludes that the state court rulings were not contrary to, or did not involve an unreasonable application of, clearly established federal law; nor did they result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

Petitioner's objections maintain a consistent theme throughout: the 10-day statutory time frame for filing objections is inadequate because of Dwight Correctional Center's policies of storing inmate's legal documents in the personal property department and requiring inmates to send a written request with 7 days notice to access such documents. Despite this argument, Petitioner has filed a comprehensive brief outlining her various objections.

Petitioner first objects to specific factual findings and concludes that such findings are the result of ineffective assistance of trial counsel and "a biased judge." She claims that had the jury heard about her "very ugly divorce" from Richard Nitz, the result would have been different. She claims that she did not socialize with Richard and his friends and simply was not involved in any way with the murder for which she was convicted. Rather, she contends that the testimony of her babysitter, Betty Boyer, was "pure fantasy" motivated by the State's "scare tactics." She further contends that the testimony of her cellmate, Barbara Winkler, "was so ridiculous that only the extreme mentally deficient would believe" (see Doc. 62). But in making these protestations, Petitioner misconstrues the basis of Magistrate Judge Proud's findings and, more basically, the role of federal habeas relief.

Petitioner insists that "constitutional issues may be raised at any time." She challenges Magistrate Judge Proud's conclusion that most of her claims are either time barred or procedurally defaulted, or both, because she "believed that by raising an issue such as ineffective assistance of counsel or judicial prejudice in her original Habeas Corpus petition she was preserving such issues for further definition" (Doc. 62, p. 9).

The standard for determining whether a claim is time barred is clear. In this case, Petitioner's original petition was filed in 1997 -- on the last day of the one year time period provided by 28 U.S.C. § 2244(d) for convictions that became final before the Antiterrorism and Effective Death Penalty Act became effective. See generally Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir. 2000). A newly-raised claim relates back to the original timely filing when the new claim arises out of the "conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Mayle v. Felix, 545 U.S. 644, 656 (2005). A habeas corpus petitioner must specify all available grounds for relief and state the facts supporting each ground. Id. at 661, citing Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts. The Court has carefully reviewed the newly added claims and fully agrees with Magistrate Judge Proud's analysis. Issues 5(f), 5(g), 5(i); Issue 6; Issues 7(a), 7(b), 7(c); Issues 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g), 8(h); Issue 9; Issue 10; Issue 11; Issue 13; and Issue 14 do not relate back to the original petition; consequently, they are time barred.

The standard for determining whether a claim is procedurally defaulted is well-established.

A petitioner may seek federal habeas corpus relief only if he has exhausted all available state court remedies and, in doing so, has fairly presented his constitutional claims to the state's courts. State law controls whether a claim is forfeited for the purposes of habeas relief. In other words, whether the petitioner has procedurally forfeited any of his habeas claims depends on whether he has failed to present a claim at the time and in the way required by state law.

We will not review a question of federal law decided by a state court if that decision rests on state law grounds that are independent of the federal question and adequate to support the judgment. The independent and adequate state ground doctrine applies to "bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." That is because "[f]ederal habeas relief is available only when a petitioner has given the state courts a full and fair opportunity to review a claim, when there is cause and prejudice for the failure to raise the claim in state court, or when the default would lead to a fundamental miscarriage of justice." State court decisions are not adequate to bar federal habeas review unless they rest upon firmly established and regularly followed state practice. Additionally, the state rule at issue "must have been 'firmly established and regularly followed' by the time as of which it is to be applied."

Franklin v. Gilmore, 188 F.3d 877, 881-82 (7th Cir. 1999) (internal citations omitted). After conducting a thorough analysis, Magistrate Judge Proud concludes that on many claims, the state courts did not have a full and fair opportunity to review the claim. On many other claims, the state court's decision was based on independent and adequate state law grounds. Petitioner has failed to show sufficient cause for her many procedural defaults. Her argument that she did the best she could and cannot be held accountable for her lawyers' failure to follow her instructions oversimplifies the issue. Petitioner was convicted over 20 years ago, and she has been challenging her conviction ever since. In arguing that this Court should excuse any default because she "submitted her claims of constitutional violations within the state courts but each court refused to hear the issues" (Doc. 62, p. 13), Petitioner misconstrues the parameters of federal habeas corpus review. Likewise, her allegations of actual innocence are insufficient to excuse the procedural default of the various issues. See generally House v. Bell, 547 U.S. 518, 536-37 (2006) (to overcome procedural default by extraordinary assertion of actual innocence, petitioner must establish that, in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt). Consequently, the Court agrees with Magistrate Judge Proud's conclusion that Issue 3(b); Issue 4(a); Issues 5(f-i); Issue 6; Issues 7(a-c); Issues 8(ah); Issue 9; Issue 10; Issue 11; Issue 12(a); Issue 13; and Issue 14 are procedurally defaulted.*fn4

Specifically, Petitioner failed to exhaust Issue 3(b); Issue 5(h); Issue 6; Issues 7(a), 7(b), 7(c); Issues 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g), 8(h); Issue 11; Issue 12(a); Issue 13; and Issue 14 by fully and fairly presenting these issues to the state court. Further, Issue 4(a); Issues 5(f), 5(g), 5(i); Issue 9; and Issue 10 are procedurally barred because the state court's dismissal of those claims was based on an independent and adequate state law ground -- ...


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.