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UNITED STATES EX REL. GEORGE FERNANDEZ (#B70201 v. GUY PIERCE

November 29, 2010

UNITED STATES EX REL. GEORGE FERNANDEZ (#B70201), PETITIONER,
v.
GUY PIERCE, WARDEN, PONTIAC CORRECTIONAL CENTER,*FN1 RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve United States District Judge

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Before the Court is Petitioner George Fernandez's motion for reconsideration of the emergency judge's denial of his Emergency Motion to Request Immediate Medical and Psychiatric Care. For the following reasons, the Court denies Fernandez's motion for reconsideration. Furthermore, the parties must file an agreed upon proposed course of action for this habeas proceeding by no later than December 20, 2010.

BACKGROUND

In 2001, after a jury trial in the Circuit Court of Cook County, a jury convicted Fernandez of aggravated vehicular hijacking and the Circuit Court sentenced him to an eighteen year term of imprisonment. In May 2007, Fernandez filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254(d). On December 8, 2009, the Court appointed Fernandez counsel. In February 2010, Fernandez's appointed counsel filed a motion for a fitness examination for the purposes of determining whether Fernandez is mentally fit to assist and direct counsel in the present habeas matter.

On February 11, 2010, Respondent filed its response to Fernandez's motion for a fitness examination. In its response, Respondent did "not object to petitioner's request that he be evaluated regarding whether he is competent to assist his attorneys in pursuing the instant habeas petition." (R. 77, Resp., at 2.) Respondent further stated that: if petitioner is found unfit, then the question of whether he must be fit to assist counsel in a non-capital habeas proceeding would be ripe and could be litigated at that point. To the extent petitioner might, in the future, seek to have a guardian appointed, or to change the conditions of his confinement, such proceedings should first be resolved in state court. See, e.g., 405 ILCS 15/1, et seq. (procedures to be followed and standards required regarding placing Illinois prisoners in Department of Human Services facilities for mental treatment). (Id. at 2-3.)

Also on February 11, 2010, Fernandez's counsel filed a reply to the motion for a fitness examination asking the Court to enter an order granting the motion. The Court then entered the following unopposed order on February 12, 2010:

The State of Illinois shall promptly make available to Petitioner's counsel for copying (at the expense of Petitioner's counsel) all medical and related records respecting George Fernandez, #B70201, in the possession of the State of Illinois Department of Corrections, which Petitioner's counsel shall in turn make available to each psychiatrist who will examine George Fernandez; Petitioner's counsel shall promptly make available to the State of Illinois for copying (at the expense of the State of Illinois) all medical and related records respecting George Fernandez that are currently in the possession of George Fernandez and/or his mother, Valerie Beesley, including any records that are obtained from third parties;

All medical and related records in the possession of the State of Illinois and Petitioner's counsel shall be made available to the qualified forensic psychiatrist hired by Petitioner's counsel to examine George Fernandez, as well as to any qualified forensic psychiatrist that the State of Illinois may engage to examine George Fernandez;

Each forensic psychiatrist who examines George Fernandez shall prepare a brief report summarizing the psychiatrist's examination, diagnosis, and conclusions regarding George Fernandez's current mental competence to assist in and direct his attorneys in the present habeas proceeding brought under 28 U.S.C. § 2254(d), and if George Fernandez is found to be incompetent, providing recommendations as to whether his competency is likely to be restored with appropriate treatment and medication within a reasonable period of time, and providing any appropriate recommendations as to what treatment and medication should be provided to George Fernandez to stabilize his condition and restore his mental competency; and The parties shall promptly file with the Court any report prepared in accordance with the preceding paragraph, and in light of such report or reports, recommend to the Court a proposed course of action in this proceeding.

(R. 79, 2/12/2010, Minute Order.)

On March 19, 2010, Fernandez filed a motion for an extension of time to amend his

petition for a writ of habeas corpus that the Court granted on March 22, 2010. In his motion for an extension of time, Fernandez explained that two experts, Dr. Keenan Ferrell, a licensed clinical psychologist, and Mr. William Woods, a psychological examiner, were engaged to perform the ...


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