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Foster v. Korte

United States District Court, S.D. Illinois

October 21, 2014

MICHAEL O. FOSTER, Petitioner,
v.
JEFF KORTE, Respondent.

MEMORANDUM and ORDER

DAVID R. HERNDON, District Judge.

This matter is before the Court on petitioner's Motion to Stay and Hold in Abeyance. (Doc. 23).

In 2004, petitioner was convicted of two counts of aggravated battery with a firearm and one count of aggravated discharge of a firearm by a jury in St. Clair County, Illinois. After filing a direct appeal and a state postconviction petition, he filed a petition for habeas relief under 28 U.S.C. ยง2254. (Doc. 1).

Petitioner raised the following grounds in his habeas petition:

1. The convictions on two counts of aggravated battery with a firearm violate the state's "one act - one crime" rule and due process.
2. Trial counsel was ineffective in failing to interview and present the testimony of alibi witnesses Dianne Foster and Venanita Ursery.
3. Trial counsel was ineffective in failing to impeach state's witness Donna Killion.
4. Trial counsel was ineffective in failing to "illustrate to the jury" that the victim, Richard Smith, was unable to see who shot him because it was dark.
5. Trial counsel was ineffective in failing to object to leading questions asked by the state's attorney of the state's witnesses.
6. Trial counsel was ineffective in failing to "illustrate to the jury" that witness Tracy Killion gave inconsistent testimony.
7. Trial counsel was ineffective in failing to "illustrate to the jury" that the state did not prove that the light at the crime scene was sufficient for the witnesses to see and identify petitioner as the shooter.
8. Appellate counsel was ineffective in failing to raise the issues set forth above on direct appeal.

Petitioner filed his Motion to Stay and Hold in Abeyance on June 25, 2014. Earlier that month, he filed a successive state postconviction petition raising a claim that trial counsel was ineffective with regard to plea negotiations. Petitioner did not file a copy of his successive state petition with this Court, and he has not elaborated on the details of this new claim. The state court promptly denied leave to file the successive petition, and petitioner appealed.[1] He asks this Court to stay his habeas petition until he can exhaust state remedies on a claim of ineffective assistance of counsel with regard to plea negotiations.

This Court has discretion to grant stay and abeyance of a "mixed petition, " i.e., a habeas petition containing both exhausted and unexhausted claims. In light of the purposes of the Antiterrorism and Effective Death Penalty Act of 1996, stay and abeyance is appropriate only where there is good cause for the failure to exhaust, the unexhausted claim is potentially meritorious, and petitioner has not ...


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