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Hawkins v. Montgomery

October 7, 2010

MARIO D. HAWKINS, PETITIONER,
v.
JESSE MONTGOMERY, DIRECTOR OF THE ILLINOIS DEPARTMENT OF CORRECTIONS' PAROLE DIVISION RESPONDENT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

Pending before this court is respondent Jesse Montgomery's motion to dismiss petitioner Mario D. Hawkins's amended § 2254 petition for failure to exhaust available state court remedies (Dkt. No. 24), as well as Hawkins's "Motion for Order to Show Cause for a Preliminary Injunction and a Temporary Restraining Order" (Dkt. No. 4), Hawkins's "Motion to Amend Proceedings" (Dkt. No. 23), and Hawkins's "Motion for an Order of Preliminary Injunction and/or to Show Cause" (Dkt. No. 29). For the reasons set forth below, Respondent's motion is granted in part and Hawkins's amended § 2254 petition is stayed pending the conclusion of Hawkins's post-conviction proceedings in state court; Hawkins's motions are each denied.

PROCEDURAL HISTORY

On December 3, 2009, petitioner Mario D. Hawkins ("Hawkins") filed his "Petition Under 28 USC § 2254 for Writ of Habeas Corpus by a Person in State Custody" in federal court.

(Dkt. No. 1.) In his original petition, Hawkins noted that he was scheduled to be released from Logan Correctional Center on December 15, 2009, pursuant to a term of mandatory supervised release ("MSR"). (Id. ¶ 17(b).)

Two weeks later, on December 17, 2009, Hawkins filed a "Motion for Order to Show Cause for a Preliminary Injunction and a Temporary Restraining Order" (Dkt. No. 4), in which he requested the court to order respondents Warden Austin S. Randolph, Jr. and IDOC Director Michael P. Randle to show cause why a preliminary injunction should not issue against them that would enjoin them "from ordering inmates to serve time on MSR after these inmates have served their sentences." (Id. at 2.) Hawkins also specifically sought to enjoin the respondents "from ordering petitioner to serve any MSR-TERM, that has not been properly admonished to the petitioner during sentencing." (Id.) On January 15, 2010, Hawkins's 2254 petition was transferred to this court in light of Hawkins's new place of residence. (Dkt. No. 6.) Thereafter, Hawkins's December 17, 2010 motion remained pending before this court. (Id. at 2 n.1.)

On January 26, 2010, the court ordered Hawkins to confirm his interest in pursuing this litigation and, if appropriate, to file an amended habeas petition in accordance with the court's order. (Dkt. No. 8.) Hawkins filed his amended habeas petition on March 29, 2010, and the court sua sponte named Jesse Montgomery, the Director of the Illinois Department of Corrections' Parole Division, as the proper respondent. (Dkt. No. 16 ("Hawkins's Am. Pet."); see also Dkt. No. 17.) The filing of Hawkins's amended petition had the effect of mooting Hawkins's December 17, 2009 motion.

In his amended petition, Hawkins asserts that habeas relief is warranted because (1) he was arrested without a valid warrant and denied the opportunity to appear before a judge within 48-hours of his arrest; (2) his trial counsel was constitutionally ineffective for failing to file a timely notice of appeal; (3) his appellate counsel on initial appeal of his post-conviction petition was constitutionally ineffective for "fail[ing] to allow plaintiff to bring forth other issues/claims"; (4) his MSR term was imposed without proper admonishment by the trial court; (5) his MSR term is an "excessive" sentence; and (6) unidentified persons or agencies caused inordinate delays that prejudiced Hawkins's ability to seek collateral relief in the state court. (Hawkins's Am. Pet. ¶ III.1.)

On May 18, 2010, while awaiting the filing of respondent's answer, Hawkins filed a "Motion to Amend Proceedings" (Dkt. No. 23) requesting the reinstatement of respondent Michael P. Randle and the addition of respondents Juan Baltierres and "Agent Morris." Meanwhile, on May 26, 2010, respondent Jesse Montgomery filed a "Motion to Dismiss Without Prejudice" seeking the dismissal of Hawkins's § 2254 petition in light of a pending appeal in state court of the January 5, 2010 dismissal of Hawkins's post-conviction petition. (Dkt. No. 24.) The court set a briefing schedule for both motions on May 25, 2010.

While the parties were in the process of briefing the two motions described above, on June 17, 2010, Hawkins also filed a "'Motion for an Order of Preliminary Injunction and/or to Show Cause" (Dkt. No. 29), in which he appears to seek relief from a new condition of his MSR. Hawkins alleges that "he is now being threatened by the implementation of the imposed conditions of the defendants, only an (8) hour movement for either day of Saturday or Sunday, [not] both days." (Id. ¶ 4.) Although Hawkins does not explicitly draw the connection, Hawkins's argument appears to be that this condition "has made it somewhat difficult for plaintiff to continue researching his case(s) and to also be able to exercise his religious rights under the Religious Restoration Act." (Id. ¶ 2.)

These three motions (Dkt. Nos. 23, 24, and 29) are now fully-briefed and ripe for adjudication by this court.

ANALYSIS

1. Motion to Dismiss

Section 2254 requires prisoners to "exhaust[ ] the remedies available in the courts of the State" before seeking relief from the federal courts, unless "there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. 2254(b)(1). Respondent has argued that Hawkins's pending petition for habeas corpus relief must be dismissed because Hawkins failed to exhaust his state ...


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