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.

Milton Smith #A81091 v. Director S. A. Godinez

October 5, 2011

MILTON SMITH #A81091, PETITIONER,
v.
DIRECTOR S. A. GODINEZ, RESPONDENT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Milton Smith ("Smith") has tendered a 28 U.S.C. §2254*fn1 Petition for Writ of Habeas Corpus ("Petition"), challenging his 1983 conviction on two murder charges on which he is currently serving a 60-year custodial sentence. Although Smith has not provided all of the requisite information for the normal threshold determination as to the potential viability of a federal habeas claim on his part, what he has tendered suffices to exclude him from any relief in this District Court.

First, however, there is the matter of two documents that have accompanied the Petition: Smith's In Forma Pauperis Application ("Application") and his Motion for Appointment of Counsel ("Motion"), both submitted on Clerk's-Office-supplied forms. As for in forma pauperis status, Smith is obviously unaware that the fee for a Section 2254 petition is the modest sum of $5 rather than a full filing fee, so that he can certainly handle such a payment. Hence the Application is denied. As for the Motion, the further rulings in this memorandum opinion and order render it moot.

Given the age of Smith's conviction and sentencing, it would be extraordinarily surprising if some or all of his current claims were not barred by the one-year limitation period prescribed by Section 2244(d). And that is certainly true as to the second of Smith's current contentions, which he summarizes in this title covering that section of his Petition:

II. Milton Smith's Mittimus Erroneously Reflects Two Convictions For Murder and Should Be Corrected To Reflect Only One Conviction For First Degree Murder Because There Was Only One Decedent.

In fact, more than one reason calls for rejection of that claim, for Smith's argument there is based solely on Illinois state law and not on federal constitutional considerations.*fn2

It is equally clear that the third of Smith's asserted grounds is also fatally flawed in federal habeas terms--here is the caption for that section of the Petition:

III. THE APPELLATE COURT ERRED IN DENYING SMITH'S PROSE MOTION FOR APPOINTMENT OF BLUHM LEGAL CLINIC NORTHWESTERN UNIVERSITY SCHOOL OF LAW TO REPLACE THE OFFICE OF THE STATE APPELLATE DEFENDER WHERE ATTORNEY PATRICIA UNSINN, ATTORNEY ROBERT HIRSCHHORN, AND ATTORNEY CAROLYN R. KLARQUIST ALL TESTIFIED THAT THEIR OFFICE HAS SIXTY-FOUR FULL TIME AND NINE PART TIME ASSISTANT DEFENDERS WORKING ON CASES AND A BACKLOG OF APPROXIMATELY ONE-THOUSAND FOUR HUNDRED AND NINTY [sic] THREE UNBRIEFED CASES AT THE TIME SMITH'S BRIEF WAS DUE. THEY REQUESTED AND RECEIVED SEVERAL CONTINUANCES.

As the ensuing discussion makes plain, Smith's core claim is that he was provided ineffective assistance by appellate counsel in support of his pro-se-initiated state post-conviction proceeding. But there are two short--and fully dispositive--answers to any such contention:

1. There is no federal constitutional right to counsel in post-conviction proceedings, as contrasted with trial and direct appeal proceedings--as our Court of Appeals stated succinctly earlier this year in Lavin v. Rednour, 641 F.3d 830, 833 (7th Cir. 2011):

However, prisoners do not have the right to counsel on collateral review. See Pennsylvania v. Finley, 481 U.S. 551 (1987).

2. Relatedly the Supreme Court taught fully three decades ago in Polk County v. Dodson, 454 U.S. 312 (1981) that a public defender does not act under color of state law (and hence is invulnerable to a claim of federal constitutional deprivation) when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.

So Smith's remedy (if any) against the appellate defenders for any purported deficiencies in their representation is a state court malpractice action, not a Section 2254 petition. And that means that Smith's third ...


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.