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Cuahutemoc Hernandez (#R-02414 v. Warden Gerardo Acevedo

United States District Court, Northern District of Illinois


November 23, 2011

CUAHUTEMOC HERNANDEZ (#R-02414)
v.
WARDEN GERARDO ACEVEDO

Name of Assigned Judge or Magistrate Judge REBECCA R. PALLMEYER Sitting Judge if Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT:

Petitioner's motions for leave to file only one copy of his habeas petition [#5] and to file a petition exceeding page limitations [#6] are granted. Pursuant to Petitioner's request [#9] and Rule 2(a) of THE RULES GOVERNING SECTION 2254 CASES, Joseph Yurkovich is substituted as Respondent. Respondent is ordered to answer the petition or otherwise plead within twenty-one days of the date of this order. Petitioner's motion for appointment of counsel [#4] is denied as premature.

O [For further details see text below.] Docketing to mail notices.

STATEMENT

Cuahutemoc Hernandez, a state prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions for murder and attempted murder on the grounds that:

(1) he was denied a speedy trial; (2) the State engaged in misconduct, both by knowingly eliciting perjured testimony and by fabricating a police report that was introduced into evidence; (3) the jury instructions were improper; and (4) trial and appellate counsel were ineffective. Petitioner has paid the statutory filing fee, as directed. See Minute Order of October 5, 2011.

Petitioner asserts that he has exhausted state court remedies with respect to the claims raised in his federal habeas petition; furthermore, he appears to have filed his petition in a timely manner. Accordingly, Respondent is ordered to answer the petition or otherwise plead within twenty-one days of the date of this order. This preliminary order to respond does not, of course, preclude the State from making whatever waiver, exhaustion or timeliness arguments it may wish to present. Pursuant to Petitioner's request and Rule 2(a) of THE RULES

GOVERNING SECTION 2254 CASES, Joseph Yurkovich, the current warden of the Hill Correctional Center, is substituted as Respondent.

Petitioner is instructed to file all future papers concerning this action with the Clerk of Court in care of the Prisoner Correspondent. Petitioner must provide the court with the original plus a judge's copy (including a complete copy of any exhibits) of every document filed. In addition, Petitioner must send an exact copy of any court filing to the Chief, Criminal Appeals Division, Attorney General's Office, 100 West Randolph Street, 12th Floor, Chicago, Illinois 60601. Every document filed by Petitioner must include a certificate of service stating to whom exact copies were sent and the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded by the court or returned to Petitioner.

Petitioner's motions for leave to file only one copy of his habeas petition, and to file a petition exceeding page limitations, are granted. However, Petitioner's motion for appointment of counsel is denied at this time as premature. Counsel must be appointed in a habeas corpus proceeding only if an evidentiary hearing is needed or if interests of justice so require. See Rule 8(c), RULES GOVERNING SECTION 2254 CASES. Whether the interests of justice require appointment of counsel in this case cannot be determined until after the court has had an opportunity to review and consider Respondent's answer to the petition.

20111123

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