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Nelson v. Gaetz

United States District Court, Seventh Circuit

July 8, 2013

MARK ANTHONY NELSON, Petitioner,
v.
DONALD GAETZ, [1] Respondent.

MEMORANDUM AND ORDER

David R Herndon Chief Judge

I. Introduction

Before the Court is a Report and Recommendation (R&R) (Doc. 25) of United States Magistrate Judge Donald G. Wilkerson, issued pursuant to 28 U.S.C. § 636(b)(1)(B), recommending that the Court GRANT respondent’s motion to dismiss petitioner Nelson’s § 2254 petition (Doc. 16) and thus DISMISS Nelson’s petition and DENY him a certificate of appealability (COA).

The R&R was sent to the parties, informing them of their right to file “objections” within fourteen days of service of the R&R. Since the filing of the R&R, Nelson has filed objections (Doc. 27) which respondent has addressed (Doc. 29). This Court will only undertake de novo review of specifically objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Southern District of Illinois Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court need not conduct a de novo review of the findings of the R&R for which no specific objections are made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings after review for clear error. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

II. Background

For the reasons discussed below, the Court adopts the findings of fact and recommendations of the R&R in their entirety. Thus, the Court will not fully recite the factual and procedural background of Nelson’s underlying state court proceedings. Moreover, Nelson does not object to the R&R’s findings of fact. In brief, Nelson was convicted on June 13, 1991 of armed robbery and sentenced to 40 years’ imprisonment to run consecutively to a 30 year sentence imposed on June 22, 1989. Nelson appealed his conviction to the Illinois Court of Appeals which rendered an opinion on October 23, 1992. While Nelson asserts he attempted to appeal the appellate court’s decision, he alleges that he never received a response from the Illinois Supreme Court. For a summary of Nelson’s state post-conviction and “State Habeas Corpus” petitions filed in 2003 and 2009, respectively, the Court refers the reader to the R&R.

Instantly, Nelson raises three grounds for relief:

1. Post-conviction counsel was ineffective and prevented a hearing on the merits of his claims;

2. He was penalized for exercising his right to a jury trial when he was promised that his sentences would run concurrently if he pled guilty; and

3. Ineffective assistance of trial and appellate counsel who failed to make a state speedy trial argument.

The R&R finds that Nelson’s petition is untimely and to the extent that his first claim is timely, it is not cognizable in a habeas petition. The Court agrees.

III. Objections

In construing Nelson’s objections are liberally as possible, it appears he raises three arguments as to why the Court should not adopt the R&R’s legal conclusions.

1. Ineffective Assistance of Post-Conviction Counsel

As to Nelson’s first claim, alleging that his post-conviction counsel was ineffective and prevented a hearing as to the merits of his claims, the R&R recommends that while it is arguably timely, it fails on its merits. The R&R notes that because Nelson has no Sixth Amendment right to counsel in post-conviction proceedings. Coleman v. Thompson, 501 U.S. 722, 752 (1991), there can be no constitutional claim for ineffective assistance of post-conviction counsel. Id.; Wilson v. United States, 413 F.3d 685, 687 (7th Cir. 2005). Nelson’s objection merely re-alleges his arguments surrounding his claim for ...


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