CHRISTOPHER J. HOWARD, Prisoner #B86767, Petitioner,
MICHAEL ATCHISON, Respondent.
MEMORANDUM AND ORDER
DAVID R. HERNDON, District Judge.
Petitioner Christopher J. Howard ("Howard"), currently incarcerated at Menard Correctional Center, brings this habeas corpus action pursuant to 28 U.S.C. Section 2254 challenging his conviction for first degree murder (Doc. 1). Respondent has answered (Doc. 88) and petitioner replied (Doc. 92). For the following reasons, the petition is DENIED and the case is DISMISSED with prejudice.
Following a jury trial in the Circuit Court of St. Clair County, Howard was found guilty of first degree murder and was sentenced on December 18, 2008, to forty-one years of imprisonment. On January 6, 2009, petitioner filed a pro se notice of appeal and, on April 6, 2009, the Illinois Court of Appeals dismissed the appeal for lack of jurisdiction.
Also on April 6, 2009, the trial court denied petitioner's motion to reconsider and petitioner's remaining pending pro se motions. Petitioner, again pro se, filed a notice of appeal regarding these judgements. Later obtaining counsel, Howard directed his attorney to file a motion to dismiss the appeal thereafter granted by the appellate court. The case was dismissed in November 2010.
Contemporaneously, on July 9, 2009, petitioner filed an amended post-conviction petition claiming that he was tried in violation of his speedy trial rights. The petition was dismissed on May 16, 2011 and petitioner did not appeal.
On January 12, 2011, petitioner filed a pro se document with the trial court, later construed to be an amended post-conviction petition. In that petition, Howard argued a single ground for relief, that the circuit court violated the due process clause of the Fourteenth Amendment when he was not given notice nor present in court for a September 8, 2008 motion hearing. The State filed a motion to dismiss the case and the Court granted the State's request on May 16, 2011. Petitioner did not appeal.
On December 10, 2009, petitioner filed a federal habeas petition challenging his conviction for failure to comply with his speedy trial rights. The undersigned dismissed the claim without prejudice on June 15, 2010 because petitioner's post-conviction claim was still pending in state court.
On March 30, 2011, petitioner filed the current action. The petition raises the same issue presented in the January 12, 2011 post-conviction action, that the Circuit Court violated the due process clause of the Fourteenth Amendment when Howard was not given notice nor present in court for a September 8, 2008 motion hearing. On May 17, 2011, respondent filed a motion to dismiss arguing that the petitioner had not exhausted his state court remedies. The case was dismissed on July 21, 2011 for failure to pay the filing fee.
Petitioner subsequently paid the filing fee and the Court vacated its dismissal on March 8, 2012. On April 19, 2012, the Court directed respondent to file a supplement addressing whether any claims remained unexhausted and respondent did so on April 25, 2012. Respondent attached petitioner's St. Clair County docket sheet (Doc. 73-1) showing that petitioner had not filed an appeal. The Court then directed respondent, on May 2, 2012, to file a response to the petition.
On August 9, 2012, respondent filed an answer to petitioner's claim (Doc. 88) arguing that petitioner's claim is procedurally defaulted. Specifically, respondent argues petitioner failed to present his claim to one complete round of state court proceedings. Further, respondent asserts that the Court should decline to issue a certificate of appealability because reasonable jurists would not find it debatable that petitioner's claim is procedurally defaulted.
In his reply, Howard asserts that the Court has "original jurisdiction over federal question cases. As such, petitioner has shown why his claim is not barred from receiving federal habeas relief" (Doc. 92, p 2). The Court construes petitioner's reply ...