The opinion of the court was delivered by: Herndon, Chief Judge:
I. Introduction and Background
This matter comes before the Court on Magistrate Judge Wilkerson's November 2, 2011 Amended Report and Recommendation ("the Report") recommending that the Court dismiss without prejudice for failure to exhaust the habeas corpus petition and grant respondent's motion to dismiss (Doc. 21). Reeves filed objections to the Report (Docs. 22 & 23). Based on the following the Court ADOPTS the Report in its entirety.
On November 1, 2010, petitioner, pro se, filed petition for writ of habeas corpus in this Court (Doc. 1). In his petition, Reeves raised the following issues: (1) that his Illinois conviction violated the Interstate Agreement on Detainers because he was not tried within 180 days; (2) his Illinois conviction violated the Interstate Agreement on Detainers because 651 days passed between his return to Illinois and his trial; (3) the state of Illinois did not have jurisdiction to remove him from Nevada to Illinois; and (4) that he was denied sentencing credit for time spent in custody before his trial. On April 7, 2011, the Court conducted its initial screening of the petition and ordered respondent to file an answer (Doc. 9).
In response, respondent filed a motion to dismiss arguing that Reeves failed to exhaust his state court remedies before filing his federal habeas petition (Doc. 14). In the motion, respondent asserted that oral argument of the direct appeal of petitioner's conviction was held on October 27, 2010 but that as of the date of the motion (April 19, 2011), the Illinois Appellate Court had not issued a decision on that appeal. In response to the motion, petitioner argued that the Court should review his petition on the merits and in support he included a copy of the order of the Illinois Supreme Court denying his petition for leave to appeal in 5-07-0625, the state court habeas case (Doc. 16).
On July 18, 2011, Magistrate Judge Wilkerson entered a Report and Recommendation recommending that the Court deny respondent's motion to dismiss because the record did not contain enough information as to whether Reeve's had fully exhausted his remedies (Doc. 17). Instead of filing objections, respondent filed a motion to reconsider arguing that petitioner had not met his burden to show that he complied with the state's exhaustion requirements prior to filing his federal habeas petition (Doc. 18). In support, respondent attached a copy of the Illinois Appellate Court's docket sheet and copies of the briefs filed in the appellate court by the parties. After reviewing those documents, Magistrate Judge Wilkerson granted the motion to reconsider and issued the Report on November 2, 2011 (Docs. 20 & 21, respectively). Reeves filed objections to the Report on November 16, 2011 and November 22, 2011 (Docs. 22 & 23). Respondent responded to the objections the next day (Doc. 24).
Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.
II. Underlying Background
Here, petitioner was convicted after a jury trial in the circuit court of Massac County, Illinois of three counts of aggravated criminal sexual assault and one count of aggravated kidnaping. The circuit court sentenced him to 52 years imprisonment.*fn1 Reeves appealed his sentence and conviction raising the following:
(1) that he was denied his constitutional right to a speedy trial; (2) that one count of aggravated criminal sexual assault must be reversed because the evidence was insufficient to prove the element of penetration beyond a reasonable doubt.
On October 6, 2004, after the Illinois Appellate Court's remand for new trial and prior to the retrial, Reeves filed a pro semotion to dismiss the indictment in the circuit court claiming that Illinois failed to bring him to trial within 180 days as required in the Interstate Agreement on Detainers. Thereafter, with the assistance of counsel, Reeves filed an amended motion to dismiss on February 17, 2005. The circuit court denied this motion on October 11, 2006.
Also, while awaiting retrial, he filed a complaint for state habeas corpus relief under 735 ILCS 5/10-101, et seq. See Doc. 1-4 at 5, 23-24. The state trial court denied habeas relief; petitioner appealed; and the appeal was docketed in the Illinois Appellate Court as case No. 5-07-0625. Id. The Illinois Appellate Court affirmed the denial of habeas relief, and the Illinois Supreme Court denied discretionary review. See Doc. 1 at 5; Reeves v. Gaetz, 938 N.E.2d 530 (Table) (Ill. 2010).
On November 14, 2011, the Illinois Appellate Court affirmed his conviction and sentence. People v. Reeves, ...