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Barnes v. Illinois Dept. of Corr.

United States District Court, S.D. Illinois

November 7, 2016

DIAMOND BARNES, #10006-424 Petitioner,
v.
ILLINOIS DEPT. OF CORR., KIMBERLY BUTLER, MENARD CORR. CTR., et al., and, UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON, UNITED STATES DISTRICT JUDGE

         Petitioner, currently incarcerated at Menard Correctional Center, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of his confinement with relation to prior state court proceedings in Illinois. Specifically, petitioner raises arguments under § 2254(d)(1) and (2), alleging in short that: his underlying conviction is not sound because Illinois law was, or is, contrary to federal law regarding the right to bear arms; and, based on his interpretations of the law, the facts presented did not support a conviction beyond a reasonable doubt. The petition was filed on July 14, 2016 (Doc. 1).

         Rule 4 of the Rules Governing § 2254 Cases in United States District Courts 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 the § 2254 petition warrants further review.

         BACKGROUND

         On May 2, 2009, Barnes was arrested and charged with first degree murder for the death of Marcus Anthony Shannon (Doc. 1 at 16). Barnes's case proceeded to a two-day jury trial, and on October 26, 2010, Barnes was convicted of first degree murder (Doc. 1 at 16). Barnes represented himself at trial, but had counsel at sentencing. (Id. at 12). On April 8, 2011 Barnes was sentenced to serve 45 years in the Illinois Department of Corrections (Id. at 16). Barnes pursued a direct appeal of his conviction, sought leave from the Illinois Supreme Court on direct appeal, and subsequently sought relief through post-conviction proceedings, which he also appealed to the Illinois Supreme Court (Doc. 1-1 at 32-39). The final ruling in his underlying state court actions was rendered on either November 4 or November 9, 2015.[1]

         The present petition is Barnes's first attempt to seek relief via federal habeas corpus mechanisms.

         HABEAS PETITION

         In his § 2254 petition, Barnes challenges his conviction on 44 separate grounds. Common themes amongst his challenges include: the duty to retreat and stand your ground laws; the full faith and credit clause; his First Amendment rights to seek redress; the right to travel; Second Amendment rights; Fifth Amendment due process rights; and, Fourteenth Amendment equal protection rights. In light of the numerous, complicated claims in the petition, the Court cannot conclude that dismissal of the petition at the preliminary stage is appropriate. Further review of the petition is necessary. For this reason, respondent will be ordered to answer the petition or otherwise file a responsive pleading.

         This Order should not be construed as a decision regarding the merits of any of the 44 counts asserted in the Petition. In addition, the Order does not preclude the State from making whatever argument it wishes to present, be it waiver, exhaustion, forfeiture, timeliness, etc. Though it appears as though the petitioner pursued many avenues of relief at the state level, it is not abundantly clear at this juncture whether he raised all of the claims he now brings in those prior proceedings. A petitioner “shall not be deemed to have exhausted the remedies available…if he has the right under the law of the state to rise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). This means that petitioner must exhaust all means of available relief under state law before pursuing habeas relief, which includes review of his claims through the entire Illinois appellate process, including the state's highest court. There is evidence to suggest he has done so, at least as to some of his claims, but again, given the number of claims, it is difficult to determine what has or has not been exhausted. A petitioner is required to present every claim included in the federal habeas petition in a petition for discretionary review to a state court of last resort. O'Sullivan v. Bourke, 526 U.S. 838, 846-47 (1999). With that said, a response shall be ordered.

         Pending Motions

         The Court notes that petitioner Barnes has submitted numerous motions along with his petition. The motions include: (a) petitioner's entry of Appearance; (b) petitioner's Motion to Proceed as a United States Veteran; (c) petitioner's Motion for Service of Process at Government Expense; (d) petitioner's Proposed Order Granting In Forma Pauperis status; (e) petitioner's Notice of Filing; (f) Petitioner's Affidavit of Service; (g) petitioner's Motion for a Writ of Habeas Corpus Ad Testificandum; and, (h) petitioner's Motion for a Writ of Habeas Corpus Ad Subjiciendum.

         To the extent that Service of Process is now ordered on the Illinois Attorney General, the Motion for Service of Process is hereby GRANTED. Ruling on Service of Process as to any other individual or entity shall be deferred until the Government's Response has been filed, or until a later time when it is appropriate and necessary to address this issue.

         To the extent that the petitioner still seeks leave to proceed in forma pauperis, he is DIRECTED to utilize the application form for the Court. The Clerk is hereby DIRECTED to mail the petitioner one copy of the form.

         As to the petitioner's other motions included with his original complaint, the Court hereby DEFERS ruling until the government has had an ...


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