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United States of America Ex Rel. v. Marcus Hardy

November 28, 2011

UNITED STATES OF AMERICA EX REL. RAMON MONTAGUE, PETITIONER,
v.
MARCUS HARDY, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Petitioner Ramon Montague, an inmate incarcerated at the Stateville Correctional Center, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Marcus Hardy has filed a motion to dismiss the petition as time-barred. For the following reasons, the court grants respondent's motion to dismiss and declines to issue a certificate of appealability.

BACKGROUND

After a jury trial in the Circuit Court of Cook County, petitioner was convicted of murder, attempted murder, and home invasion. The jury declined to impose the death penalty, and the court sentenced petitioner to a term of natural life imprisonment on the murder charge, 30 years to be served concurrently for attempted murder, and 30 years (also concurrent) for home invasion. The court arrived at that sentence based on its finding that the "murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty," which under Illinois law allowed the court to impose a term of natural life imprisonment. Ill. Rev. Stat. Ch. 38, par. 1005-8-1(b).

Petitioner appealed, and the Illinois Appellate Court affirmed. Order, People v. Montague, No. 1-93-4252 (Ill. App. Ct. Apr. 25, 1989). Petitioner filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court, which was denied. Order, People v. Montague, No. 81504 (Ill. Oct. 5, 1989). Petitioner did not file a petition for a writ of certiorari.

Petitioner next filed a pro se post-conviction petition under 725 Ill. Comp. Stat. 5/122-1, et seq., in the Circuit Court of Cook County. Finding that it was "patently without merit," the Circuit Court dismissed the petition. See Transcript at B-3, People v. Montague, 84 CR 4012 (Cook Cty. Cir. Ct. Sept. 30, 1993).

Petitioner appealed, arguing that the petition had "alleged sufficient facts demonstrating constitutional violations to warrant an evidentiary hearing," and the Illinois Appellate Court affirmed. Order at 1, People v. Montague, No. 1-93-4252 (Ill. App. Ct. Apr. 30, 1996). Petitioner filed a PLA, which the Illinois Supreme Court denied. Order, People v. Montague, No. 81504 (Ill. Oct. 2, 1996). Again, petitioner did not file a petition for a writ of certiorari to the United States Supreme Court.

In March 1997, petitioner filed a pro se petition for a writ of habeas corpus with this court. United States ex rel. Montague v. DeTella, No. 97 C 2033 (N.D. Ill. March 24, 1997). The next month, petitioner filed a successive pro se petition under case number 97 C 2872. United States ex rel. Montague v. DeTella, No. 97 C 2872 (N.D. Ill. Apr. 23, 1997).

The court then granted petitioner's motion to voluntarily dismiss the first petition without prejudice, Dkt. 15, United States ex rel. Montague v. DeTella, No. 97 C 2033 (N.D. Ill. June 27, 1997). The court granted petitioner's motion to incorporate his pro se petition in the second case into a counseled petition, Dkt. 9, United States ex rel. Montague v. DeTella, No. 97 C 2872 (N.D. Ill. Sept. 25, 1997), and granted petitioner leave to file an amended petition limited to the issue of ineffective assistance of counsel, Dkt. 17, United States ex rel. Montague v. DeTella, No. 97 C 2872 (N.D. Ill. Aug. 27, 1998). The court instructed the parties to conduct discovery on an ineffective assistance of counsel issue, after which time the court stated that it would set a schedule for petitioner to file an amended petition. Dkt. 17, United States ex rel. Montague v. DeTella, No. 97 C 2872 (N.D. Ill. Aug. 27, 1998).

Petitioner eventually filed that amended petition on April 14, 2000, but then requested additional time for investigation before filing another amended petition, which the court permitted. Dkts. 32--35, United States ex rel. Montague v. DeTella, No. 97 C 2872 (N.D. Ill. Apr. 14, 2000--May 30, 2000). In August 2000, petitioner filed another amended petition, which the court "treated as a motion to amend the petition by asserting a new claim," along with a "memorandum re: evidentiary hearing," which the court "treated as a motion to hold an evidentiary hearing." Dkt. 41, United States ex rel. Montague v. DeTella, No. 97 C 2872 (N.D.Ill. Aug. 23, 2000).

Respondent answered, and on November 16, 2000, this court dismissed the petition without prejudice. Dkt. 44, United States ex rel. Montague v. DeTella, No. 97 C 2872 (N.D. Ill. Nov. 16, 2000). The court explained that petitioner "asked to amend his habeas corpus petition to add a newly-available claim under the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000)," but had not exhausted his state court remedies on that claim. Id. The court granted petitioner's request to add that claim to his habeas petition, but then dismissed the petition without prejudice. Finally, the court provided that "[a]fter exhausting his state court remedies, petitioner may request that this case be reinstated if such action would be warranted." Id.

On November 27, 2000, respondent filed a motion for reconsideration, arguing that any new post-conviction petition he filed in state court would be time-barred, and in any event, the state courts were unlikely to consider his Apprendi claim. (At the time, the Illinois Appellate Courts were split on whether Apprendi should be applied retroactively.) The court denied petitioner's motion, finding that "in the interest of comity," the state court, not this federal court, should be the first" to determine whether Apprendi was retroactively applicable to otherwise time-barred petitions. Dkt. 52, United States ex rel. Montague v. DeTella, No. 97 C 2872 (N.D.Ill. June 6, 2001).

While petitioner's reconsideration motion was pending in this court, he filed a second post-conviction petition. Post-conviction Petition, People v. Montague, No. 84 CR 4012 (Cook Cty. Cir. Ct. Jan. 2, 2001). Petitioner then filed a counseled post-conviction petition and, a day later, a motion for postjudgment relief, which he later sought to consolidate. Post-conviction Petition, People v. Montague, No. 84 CR 4012 (Cook Cty. Cir. Ct. Feb. 27, 2001); Motion for Postjudgment Relief, People v. Montague, No 84 CR 4012 (Cook Cty. Cir. Ct. Feb. 28, 2001); Motion to Consolidate, People v. Montague, No 84 CR 4012 (Cook Cty. Cir. Ct. Dec. 11, 2002). Petitioner subsequently filed a supplemental post-conviction petition. Supplemental Post-conviction Petition, People v. Montague, No. 84 CR 4012 (Cook Cty. Cir. Ct. July 11, 2003). The Circuit Court of Cook County dismissed all of these petitions, finding that Illinois law foreclosed petitioner's Apprendi claim. Transcript, People v. Montague, No. 84 CR 4012 (Cook Cty. Cir. Ct. Apr. 30, 2004).

Petitioner appealed, and the Illinois Appellate Court affirmed. Order, People v. Montague, No. 1-04-1394 (Ill. App. Ct. Apr. 21, 2006). Petitioner filed a PLA, which the Illinois Supreme Court denied. Order, People v. Montague, No. 102877 (Ill. Sept. 27, 2006). Petitioner then filed a petition for a writ of certiorari to the United States ...


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