The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Wednesday, 23 February, 2011 09:28:09 AM Clerk, U.S. District Court, ILCD
On February 25, 2002, Petitioner, Percy Lee Jones, filed a pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (#1).*fn2 Astonishingly, this case is still open, though stayed, almost nine years later. This court concludes, based upon the applicable law from the United States Supreme Court, that continuing the stay in this case cannot be justified. This case is therefore dismissed without prejudice, with leave to reinstate if Petitioner ever manages to complete the exhaustion of his state law remedies.
Petitioner is currently serving a term of imprisonment of 60 to 100 years based upon a 1977 conviction of murder, and other offenses, in DeWitt County. See People v. Jones, 379 N.E.2d 301 (Ill. App. Ct. 1978) (affirming Petitioner's DeWitt County convictions). Petitioner is also serving a term of imprisonment of 75 to 150 years based upon a 1977 murder conviction in Champaign County. See People v. Jones, 383 N.E.2d 239 (Ill. App. Ct. 1979) (affirming Petitioner's Champaign County conviction and sentence). Both murders occurred in February 1977 and were part of a crime spree which began in Chicago and ended in Peoria. See Jones, 379 N.E.2d at 302-03; Jones, 383 N.E.2d at 240-41. One murder victim was found dead in Clinton, Illinois, and the other murder victim was found dead in Champaign, Illinois. See Jones, 379 N.E.2d at 302; Jones, 383 N.E.2d at 240.
As noted, Petitioner filed his habeas Petition (#1) in February 2002. On March 28, 2002, the case was assigned to United States District Judge Jeanne E. Scott. On April 19, 2002, Judge Scott entered an Order (#14) and dismissed the Petition. Judge Scott determined that Petitioner had previously filed a Petition under 28 U.S.C. § 2254, which was dismissed by United States District Judge Joe Billy McDade on April 27, 2001. Judge Scott therefore found that Petitioner's Petition was a second or successive habeas petition so Petitioner was required to obtain authorization from the Seventh Circuit Court of Appeals before filing the petition. Petitioner appealed from the dismissal of his Petition.
On October 7, 2002, the Seventh Circuit Court of Appeals issued its Mandate (#29) and remanded the case for further proceedings. In its Order, the Seventh Circuit stated that, because Petitioner is a state prisoner, his current collateral attack necessarily arose under 28 U.S.C. § 2254. The court then determined that the district court improperly found that the current petition was second or successive. The court noted that Petitioner had filed a habeas petition in December 2000 which was dismissed by the district court as time-barred or, alternatively, for failure to exhaust state-court remedies. The court stated that this earlier petition did not challenge his convictions and sentences but rather challenged the procedures used to determine his parole eligibility. The court determined that this claim did not arise under 2254 but should have been brought under 42 U.S.C. § 1983. The court then stated that Petitioner's current petition challenged his convictions and sentences but also attacked the parole eligibility procedures. The court went on to state:
One resolution of the case, and perhaps the most efficient, would be to simply deny a certificate of appealability on the ground that Jones's claims are meritless. His Apprendi argument is patently frivolous--he seems to argue that his indictment should have alleged that his crimes were "particularly brutal and vicious"--and Apprendi, in any event, is not retroactive. Curtis v. United States, 294 F.3d 841 (7th Cir. 2002). And Jones's ineffective assistance claim is plainly untimely. But we cannot decide the underlying merits of a habeas corpus petition where, as here, the district court erroneously believed that it lacked jurisdiction. See Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000) ("The essential point is that a prisoner is entitled to one unencumbered opportunity to receive a decision on the merits" of his collateral attack.); Shepeck v. United States, 150 F.3d 800, 801 (7th Cir. 1998) (a prisoner "is entitled to prosecute one collateral attack on the judgment.")
The Seventh Circuit vacated the district court's judgment and remanded the case "with instructions to dismiss the claim attacking the parole procedures as improperly brought under § 2254, and for further proceedings on the remaining claims."
Following the Seventh Circuit's Order, the case was reopened. Petitioner filed a Motion to stay or hold proceedings in abeyance (#27). Petitioner asked that the case be stayed while he presented his claims to the state court. On December 27, 2002, Petitioner filed a Motion Requesting § 2254 Petition to be Dismissed without Prejudice (#32). Petitioner stated that he was in the process of exhausting his state court remedies and asked that his petition be dismissed without prejudice so that he could refile it after the state court remedies were completed. On March 11, 2003, Judge Scott, by minute entry, denied Petitioner's Motion to Dismiss. Judge Scott stated, with no explanation, that "[i]f the Court dismissed Petitioner's case, he will be unable to refile it." Judge Scott then granted Petitioner's Motion to Stay. Judge Scott stated, "Petitioner is directed to inform the Court within fourteen (14) days after the adjudication of Petitioner's claims in state court, and set out any amendments to his Petition at that time."
On January 13, 2005, Petitioner filed a document (#35) which set out the status of his proceedings in state court. Beginning in 2006, both Petitioner and Respondent provided status reports to the court.*fn3 On January 4, 2007, Respondent filed a Status Report (#40) which stated that Petitioner's case in DeWitt County remained ongoing. Respondent attached a copy of the DeWitt County docket report which showed that, on June 28, 2005, the Illinois Appellate Court allowed Petitioner's motion to remand his post-conviction petition for further proceedings under the Illinois Post-Conviction Act. Respondent stated that Petitioner was allowed until January 24, 2007, to file an amended post-conviction petition. Respondent stated that Petitioner's case remained ongoing in state court and the district court should continue to stay the proceedings.
On June 21, 2007, Respondent filed another Status Report (#42). Respondent stated that the circuit court of DeWitt County dismissed Petitioner's pro se post-conviction petition on May 16, 2007. Petitioner further stated that Petitioner filed a notice of appeal and the case was pending before the Fourth District Appellate Court. Respondent stated that the case remained ongoing in state court and the stay should continue. Respondent filed additional Status Reports on January 10, 2008, and September 18, 2008. Both Status Reports (#44, #47) just stated that the state court proceedings remained ongoing. On May 28, 2009, Respondent filed another Status Report (#50). Respondent stated that he called the circuit clerk of DeWitt County and was told that Petitioner's state proceedings remained ongoing. Respondent stated that the clerk reported that, on February 5, 2008, the Appellate Court reversed the dismissal of Petitioner's post-conviction petition on timeliness grounds and remanded the case to the circuit court of DeWitt County for further proceedings. Respondent recommended that the case remain stayed. Additional Status Reports were filed by Respondent on December 18, 2009 (#52), and June 17, 2010 (#54). Both Status Reports stated that the case remained ongoing and the last docket entry in the DeWitt County circuit court was the Illinois Appellate Court's order of February 5, 2008.
On July 29, 2010, this case was reassigned to this court due to the retirement of Judge Scott. On December 10, 2010, Respondent filed a Status Report (#56). Respondent again stated that Petitioner's post-conviction proceedings in DeWitt County remained active and the last docket entry was the Illinois Appellate Court order of February 5, 2008. Petitioner filed a Status Report (#57) on December 21, 2010. Petitioner essentially restated the information provided by Respondent and asked this court to continue to stay the proceedings. Notably, Petitioner provided no information regarding any efforts he had made to achieve the resolution of his post-conviction petition which was remanded to the DeWitt County circuit court on February 5, 2008. On December 28, 2010, this court entered a text order and stated, "[t]he Court has reviewed ...