United States District Court, S.D. Illinois
ROBERT MYERS, No. B-86932, Petitioner,
ROBERT MUELLER, Respondent.
MEMORANDUM AND ORDER
R. Herndon, Judge
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.
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.
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
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).
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.
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).
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.
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
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 ...