Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Myers v. Mueller

United States District Court, S.D. Illinois

September 19, 2016

ROBERT MYERS, No. B-86932, Petitioner,
v.
ROBERT MUELLER, Respondent.

          MEMORANDUM AND ORDER

          David R. Herndon, Judge

         Petitioner Robert Myers is currently incarcerated in the Centralia Correctional Center in Centralia, Illinois, which is located within the Southern District of Illinois. On July 25, 2016, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Illinois.

         This matter is now before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” After carefully reviewing the petition in the present case, the Court concludes that petitioner is not entitled to relief, and the petition must be dismissed.

         Background

         On December 19, 2008, Myers was convicted of a single count of attempted first degree murder after a jury returned a verdict of guilty (Doc. 1 at 1-2). Myers was sentenced to 22 years in the Illinois Department of Corrections on March 31, 2009 (Id.). Following his conviction and sentencing, Myers pursued a direct appeal wherein he alleged that he was denied a fair trial due to the trial court's failure to question prospective jurors regarding certain issues (Id. at 2). After the appellate court affirmed his conviction, he did not seek higher review (Id. at 2-3).

         In March of 2011, Myers filed a post-conviction petition with the Fifth Judicial District Appellate Court of Illinois (Id. at 3-4). In that petition, he argued that his trial counsel was ineffective for failing to call a witness to testify at his trial (Id.). He alleged that had the witness testified, she would have told the jurors that during a break in the trial she heard the victim of Myers's criminal actions saying that she was unable to identify her assailant (Id. at 3-4, 20-24). Myers alleged that the testimony would have proven exculpatory (Id.). Myers did not appeal the denial of his post-conviction petition to the state's highest court (Id. at 5). However, he did append an excerpt of the Appellate Court Order denying his petition on the merits (Id. at 20-23).

         Myers does not allege that he pursued any subsequent state law remedies. Instead, Myers filed the present petition with this Court alleging ineffective assistance of counsel.

         The Petition

         In his present petition, Myers alleges that his counsel was ineffective, causing him to reject a plea offer that contemplated a 15-year term of imprisonment. (Doc. 1 at 8). Rather than taking the plea offer, Myers alleges that he relied upon his counsel's erroneous opinion that she could beat the case (Id.). Myers was ultimately sentenced to 22 years in prison (Id. at 1). Myers also alleges that he did not raise this particular aspect of ineffective assistance of counsel in his original state post-conviction petition because his appointed counsel refused to do so (Id. at 8, 16).

         It is unclear from the present petition whether Myers is attempting to raise an ineffective assistance of counsel claim against his trial counsel or his post-conviction counsel, but regardless of which claim he intends to raise his claim fails at this juncture. The Court will discuss why his claim would fail against his trial counsel or his post-conviction counsel, in turn, below.

         Discussion

         Absent exceptional circumstances, a petitioner may not file a federal habeas petition until he has exhausted all means of available relief under state law. See 28 U.S.C. § 2254(b); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999).

         A petitioner “shall not be deemed to have exhausted the remedies available...if he has the right under the law of the state to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). Before proceeding with a review of a petition for habeas corpus on its merits

A district court must make two inquiries - whether the petitioner exhausted all available state remedies and whether the petitioner raised all his claims during the course of the state proceedings. If the answer to either of these inquiries is “no, ” the petition is barred either ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.