United States District Court, S.D. Illinois
PAUL DONNELL TAYLOR, No. N-72159, Petitioner,
STEPHEN DUNCAN, Respondent.
MEMORANDUM AND ORDER
R. Herndon, Judge
a state prisoner currently incarcerated in Lawrence
Correctional Center, brings this habeas corpus action
pursuant to 28 U.S.C. § 2254 to challenge the
constitutionality of his confinement.
petition was filed on July 22, 2016. Petitioner challenges
his Cook County conviction in Case No. 14-CR-13669 for
criminal damage to government property, for which he received
an extended term sentence of six years. Petitioner was found
guilty following a jury trial, and sentence was imposed on
October 30, 2015 (Doc. 1, p. 1).
notes that he filed an appeal from the judgment of
conviction, docketed with Case Number “15-1-1557,
” and that he is “still awaiting” a result
from the appellate court (Doc. 1, p. 2; see also Doc. 1, p.
9). He raised issues of ineffective assistance of counsel and
excessive sentence. He also states that he filed a
post-conviction or habeas corpus challenge regarding his
sentencing, and is waiting for action on that matter (Doc. 1,
p. 3). Additional issues raised by petitioner in one or more
of those proceedings include that the trial judge did not
appoint counsel for him, after having allowed petitioner to
represent himself because of the ineffectiveness of prior
appointed counsel (Doc. 1, p. 4). It may be that this denial
of counsel refers to a request for counsel to represent him
in the post-conviction challenge, which petitioner references
later in his pleading (Doc. 1, p. 7). However, that issue is
not clear from the pleading.
the status of his state-level challenges to the conviction
and sentence, petitioner notes that his appeal to the highest
state court is “still in process” (Doc. 1, p. 5).
He later adds, “I am attempting to go to the Supreme
Court of Ill. However, the circuit court will not render a
decision” (Doc. 1, p. 7).
grounds petitioner raises in this action include: (1) Actual
innocence, because an officer beat him and kept him cuffed in
the police lockup for three hours (Doc. 1, p. 8); and (2)
Misconduct of the trial judge, who refused to appoint counsel
for petitioner, would not reconsider the decision, and would
not recuse himself (Doc. 1, pp. 10-11). He also references
“reasonable doubt” and claims that in the
proceeding where he represented himself, he was not informed
he would be subject to an extended term (Doc. 1, p. 13). He
includes correspondence in which he complained about having
been handcuffed in the courtroom because of an argument with
his public defender (Doc. 1, p. 14). Also attached is a
partial transcript of the proceeding in which petitioner
requested, and was granted permission, to represent himself
(Doc. 1, pp. 15-18).
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
petitioner is not entitled to relief, and the petition must
a habeas action may be heard in federal court, a petitioner
is required to exhaust his available remedies in state court,
or else show cause and prejudice for the failure to exhaust.
28 U.S.C. § 2254(b)(1); McAtee v. Cowan, 250
F.3d 506, 508-09 (7th Cir. 2001). To exhaust his remedies, a
state prisoner must fairly present his claim in each
appropriate state court including a state supreme court with
powers of discretionary review. Byers v. Basinger,
610 F.3d 980, 985 (7th Cir. 2010); Baldwin v. Reese,
541 U.S. 27, 29 (2004); see also O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (holding that state
prisoners “must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process”); Spreitzer v. Schomig, 219
F.3d 639, 644-45 (7th Cir. 2000). A prisoner need not pursue
all separate state remedies that are available to him but
must give “the state courts one fair opportunity to
pass upon and correct the alleged violations.”
McAtee, 250 F.3d at 509. Further, “[i]f a
prisoner fails to present his claims in a petition for
discretionary review to a state court of last resort, those
claims are procedurally defaulted.” Rodriguez v.
Scillia, 193 F.3d 913, 917 (7th Cir. 1999); see also
O'Sullivan, 526 U.S. at 848.
own description, petitioner's appeal of his conviction is
still pending before the state appellate court. In the event
his appeal does not succeed, he will have the opportunity in
the future to seek review from the Illinois Supreme Court.
Additionally, he may have a pending motion for
post-conviction relief. If petitioner were to obtain relief
from the state courts on the issues he has raised on appeal,
review by this Court would be unnecessary. In any case, it is
premature to bring his claims in federal court at this time.
Until petitioner fully completes the state appellate review
process, his claims remain unexhausted. Further, petitioner
has not made any showing of cause and prejudice for the
failure to exhaust his state court remedies on this matter.
reasons stated above, the instant habeas petition is
DISMISSED without prejudice. If necessary, petitioner may
re-file his claims raised herein after his state court
remedies are fully exhausted, so long as he does so within
the applicable time limits. See 28 U.S.C. §
pending motions are DENIED AS MOOT.
petitioner wishes to appeal this dismissal, he may file a
notice of appeal with this court within thirty days of the
entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
leave to appeal in forma pauperis should set forth
the issues petitioner plans to present on appeal.
See Fed. R. App. P. 24(a)(1)(C). If petitioner does
choose to appeal and is allowed to proceed IFP, he will be
liable for a portion of the $505.00 appellate filing fee (the
amount to be determined based on his prison trust fund
account records for the past six months) irrespective of the
outcome of the appeal. See Fed. R. App. P. 3(e); 28
U.S.C. § ...