The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Tuesday, 15 March, 2011 02:54:25 PM
Clerk, U.S. District Court, ILCD
Now before the Court is Respondent's Motion to Dismiss without Prejudice or, in the Alternative, Hold in Abeyance, Petitioner's Petition for a Writ of Habeas Corpus. For the reasons set forth below, Respondent's Motion to Dismiss [#12] is GRANTED and Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [#1] is DISMISSED WITHOUT PREJUDICE.
On June 25, 1998, Petitioner Robert D. Jones ("Jones") was found guilty by a jury of first degree murder in the Circuit Court of Sangamon County, Illinois.*fn1 Jones was sentenced to 85 years in prison on September 4, 1998. He filed a direct appeal of his conviction in the Illinois Appellate Court, Fourth District, and it affirmed his conviction. People v. Jones, 734 N.E.2d 207, 214 (Ill. App. 2000). Jones' petition for leave to appeal to the Illinois Supreme Court was granted on November 29, 2000. The Illinois Supreme Court remanded the case to the Circuit Court for a hearing on Jones' argument that the trial court improperly ruled on a motion for substitution of judge, retained jurisdiction, and did not reach the other issues he raised on appeal. People v. Jones, 757 N.E.2d 464, 466 (Ill. 2001). The Circuit Court denied the motion for substitution of judge, and the Illinois Supreme Court thereafter ruled upon all six of the claims Jones made on appeal. On January 20, 2006, the Illinois Supreme Court affirmed Jones' conviction. People v. Jones, 845 N.E. 2d 598, 617 (Ill. 2006). Jones' petition for writ of certiorari to the United States Supreme Court was denied on October 2, 2006.
While Jones' direct appeal was pending, he filed a post-conviction petition in the Circuit Court of Sangamon County on January 11, 2001, raising thirty-eight claims. That state post-conviction petition remains pending. On May 10, 2010, Jones commenced an action pursuant to the Illinois Habeas Corpus Act, 735 ILCS 5/10-101. Jones is proceeding pro se in that action, and it too remains pending.
On August 12, 2010, Jones filed the instant § 2254 petition raising forty-eight claims. In his petition, Jones indicates that the first thirty-eight claims are the same he raised in his pending state post-conviction petition, claim thirty-nine is pending in his state habeas proceedings, and the remaining claims were presented on direct appeal. He argues that the Court should proceed to rule on his claims, even if unexhausted, because there is an absence of available state corrective process. Respondent filed the instant Motion to Dismiss arguing that the Court should dismiss Jones' petition without prejudice because he has not exhausted his available state court remedies for forty of his claims, and the Court should not stay the case pending Jones' exhaustion of state court remedies. Jones filed a Supplemental Answer to the Motion to Dismiss [#15] in which he requests waiver of the exhaustion requirement due to the "misconduct of State Authorities." This Order follows.
Before considering the merits of a petition for writ of habeas corpus brought under 28 U.S.C. § 2254, a district court must consider whether the petitioner has exhausted all available state remedies. If the answer to this question is "no," the petition is barred for failure to exhaust state remedies. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.), cert. denied, 112 S.Ct. 387 (1991); Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988), cert. denied, 109 S.Ct. 1648 (1989). In other words, if a petitioner fails to give the state courts a full and fair opportunity to review his claims, then his petition must fail. Bocian v. Godinez, 101 F.3d 465, 468-69 (7th Cir. 1996).
Section 2254 provides that "[a]n application for a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State . . . ." 28 U.S.C. § 2254(b). Exhaustion occurs when federal claims have been presented to the highest state court for a ruling on the merits or when the claims could not be brought in a state court because no remedies remain available at the time the federal petition is filed. Farrell, 939 F.2d at 410; Boerckel v. O'Sullivan, 135 F.3d 1194, 1196 (7th Cir. 1998), rev'd on other grounds, O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1730 (1999) (a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement). Section 2254(c) further provides that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
In the case at bar, it is clear that Jones has failed to exhaust his available state law remedies as to the vast majority of his claims, because they are included in his currently pending post-conviction petition. He also represents that his state petition for writ of habeas corpus is pending before the Circuit Court of Sangamon County. Nevertheless, Jones asks the Court to waive the exhaustion requirement pursuant to § 2254(b), which provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . .there is an absence of available State corrective process; or . . . circumstances exist that ...