Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Robert W. Gettleman than Assigned Judge
Petitioner's motion to stay these proceedings (Dkt. No. 3), is granted. The case is stayed until the completion of petitioner second state post-conviction proceedings including an appeal to the Supreme Court of Illinois. The parties are instructed to submit a written report detailing the status of petitioner's state court proceedings on or before January 21, 2013. The Clerk is instructed to correct respondent's name on the caption to Michael P. Atchison, Warden, Menard Correctional Center. The Attorney General of the State of Illinois is dismissed as a respondent because petitioner is not in her custody. Rumsfeld v. Padilla, 542 U.S. 426, 425 (2004).
O[ For further details see text below.] Docketing to mail notices.
Pro se petitioner Roberto Mata, a prisoner at the Menard Correctional Center, has brought a habeas corpus petition pursuant to 28 U.S.C. § 2254. He is serving a life sentence for murder from the Circuit Court of Cook County. (Dkt. No. 20-2 at 1). Petitioner has a pending motion to stay these habeas corpus proceedings so that he can pursue a presently pending second post-conviction petition in the Illinois courts. (Dkt. No. 3). The motion is granted.
Petitioner's conviction arises from a shooting on March 16, 2002. (Dkt. No. 20-2 at 1). The State's theory was that the victims had a fight with petitioner's friend. (Id. at 1-2). Petitioner's friend called out for help and petitioner responded by shooting the victims. (Id. at 2). The State's evidence was that the original fight had ended, and the victims were attempting to retreat when petitioner shot them. (Id.) Petitioner argued that he was acting in self-defense, or alternatively, that he had an unreasonable belief that deadly force was necessary to protect his friends. (Id.).
Petitioner's present federal habeas corpus petition raises claims of: (1) ineffective assistance of trial and appellate counsel regarding counsel's failure to litigate a motion to suppress his statements to the police; and, (2) ineffective assistance of counsel for failing to investigate a eyewitness, William Rivera. The Rivera ineffective assistance claim is at issue in the present stay motion.
Petitioner believes that Rivera had helpful testimony in support of his self-defense and mitigation arguments, and his attorneys were ineffective for failing to locate Rivera and bring him to trial. Petitioner has not fully exhausted this claim in the Illinois courts. It was not presented on direct appeal or his first post-conviction proceeding - petitioner is presently exhausting the claim, along with a claim that he was not proven guilty beyond a reasonable doubt due to the mitigation issue, in a second state post-conviction petition.
(Dkt. No. 20-3 at 28-42). The state trial court denied petitioner's second post-conviction petition on June 15, 2012. (Dkt. No. 20-3 at 102).
Petitioner is required to present all federal habeas corpus claims (including the Rivera ineffective assistance of counsel claim) to the Illinois state courts including in a petition for leave to appeal to the Supreme Court of Illinois. Bland v. Hardy, 672 F.3d 445, 449 (7th Cir. 2012) (citing O'Sullivan v. Boerckel, 526 U.S. 838 (1999)). Petitioner requests a stay of these proceedings until he has completed his exhaustion efforts in the Illinois courts.
A petitioner seeking a stay is not automatically entitled to that relief, but must show "good cause" for the failure to raise the claim in the state court in the first instance, the unexhausted claim is not "plainly meritless," and he has not engaged in intentional dilatory litigation tactics. Rhines v. Weber, 544 U.S. 269, 277-78 (2005); see also Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008); Arrieta v. Battaglia, 461 F.3d 861, 866 (7th Cir. 2006); Dolis v. Chambers, 454 F.3d 721, 724-25 (7th Cir. 2006). The decision whether to stay the present federal habeas corpus case is a question of the proper exercise of the Court's discretion. Rhines, 544 U.S. at 276 (citing Clinton v. Jones, 520 U.S. 681, 706 (1997)).
Respondent argues that the stay request should be denied because the petitioner's claim is plainly meritless. (Dkt. No. 21). He characterizes petitioner's claim as alleging that the state failed to disprove the existence of sudden provocation as a mitigating factor. (Id. at 2). A state's failure to disprove mitigation does not raise a question of federal law, and so petitioner argues that there is need to stay these proceedings to allow petitioner to exhaust that plainly meritless non-cognizable claim. (Id. at 2 (citing Patterson v. New York, 432 U.S. 197, 210 (1977)).
But, respondent does not address petitioner's claim of ineffective assistance of counsel as to William Rivera. The Court's understands petitioner to be raising an ineffective assistance of counsel claim and that is is certainly cognizable on federal habeas corpus review. Cullen v. Pinholster, 131 S. Ct. 1388, 1404-06 (2011); Harrington v. Richter, 131 S. Ct. 770, 788-89 (2011); Strickland v. Washington, 466 U.S. 668 (1984). There is significant discussion of self-defense and mitigation in petitioner's federal and ...