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Brzowski v. Austin

United States District Court, Seventh Circuit

June 24, 2013

WALTER J. BRZOWSKI, Petitioner,
v.
GLEN AUSTIN, Warden[1] Respondent.

OPINION

SUE E. MYERSCOUGH, District Judge.

Petitioner, Walter J. Brzowski, brings this habeas corpus action pursuant to 28 U.S.C. ยง 2254 challenging the constitutionality of his confinement (d/e 1). Petitioner has failed to exhaust his state court remedies and has not shown that there is an absence of available state corrective processes or circumstances that exist that would render such processes ineffective to protect his rights. Therefore, Respondent's Motion for Leave to File Motion to Dismiss (d/e 28) is GRANTED, and Petitioner's petition for writ of habeas corpus is DISMISSED without prejudice (d/e 1).

I. BACKGROUND

Petitioner, identified as prisoner M29120, is incarcerated at the East Moline Correctional Center in East Moline, Illinois. He is in the custody of Respondent Tod Van Wolvelaere.

On May 27, 2012, Petitioner was convicted in the Circuit Court of Will County, Illinois of violating an order of protection and was later sentenced to three years in prison.

On July 10, 2012, instead of properly filing a notice of appeal from his conviction in the Illinois Third District Appellate Court, Petitioner filed a pro se motion for reinstatement of bond and immediate release. In the motion, Petitioner argued that the Will County Circuit Court improperly denied Petitioner's motion to substitute Judge Robert P. Livas for cause. The Third District Appellate Court denied the motion without reaching the merits of Petitioner's argument.

Since Petitioner filed his first pro se motion on July 10, 2012, he has filed two more pro se motions that raise similar arguments to that raised in his first pro se motion. The Third District Appellate Court has dismissed both motions without reaching the merits of Petitioner's arguments.

On August 1, 2012 Petitioner, represented by the Office of the State Appellate Defender, appealed his conviction for violation of an order of protection. The appeal remains pending in the Illinois Third District Appellate Court with Petitioner's appellant's brief due on July 22, 2013.

Shortly after filing his notice of direct appeal, Petitioner filed a pro se motion for leave to file a petition for writ of habeas corpus in the Illinois Supreme Court. Along with this motion, Petitioner filed a memorandum that argued the Will County Circuit Court improperly denied Petitioner's motion to substitute Judge Livas for cause; Petitioner was not given proper notice of the order of protection; no evidence supported issuance of an order of protection; the Cook and Will County courts lost jurisdiction over Petitioner after Petitioner properly removed to federal court; and Petitioner's ex-wife is currently in a void and bigamous marriage. On November 28, 2012 the Illinois Supreme Court denied the motion without reaching Petitioner's arguments on the merits.

On December 17, 2012, Petitioner filed the instant federal habeas petition. The petition argues that the Will County Circuit Court improperly denied Petitioner's motion to substitute Judge Robert P. Livas for cause; Petitioner was forced to proceed at trial pro se because he lacked competent counsel; bail was excessive; the Cook County and Will County trial courts had no jurisdictional power over Petitioner after he filed federal removal cases; and Petitioner's ex-wife is currently in a void and bigamous marriage.

On January 31, 2013 this Court issued a text order requiring Respondent to address the issues raised in Petitioner's petition. On April 9, 2013, Respondent filed a Motion for Leave to File a Motion to Dismiss (d/e 28). Respondent also attached a memorandum arguing for dismissal of Petitioner's petition because he has failed to exhaust his state court remedies. See d/e 28, Ex. 1. Respondent's motion is now before the Court.

II. ANALYSIS

A. Filing Three Pro Se Motions in the Illinois Third District Appellate Court Does Not Exhaust Petitioner's State Court Remedies

On August 1, 2012, Petitioner appealed his conviction for violation of an order of protection. This appeal remains pending before the Illinois Third District Appellate Court. Petitioner insists that, despite the ongoing proceeding in the Illinois Third District Appellate ...


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