United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
currently incarcerated in Lawrence Correctional Center,
brings this habeas corpus action pursuant to 28 U.S.C. §
2254 to challenge the constitutionality of his sentence. The
underlying Petition was filed on December 1, 2016. Petitioner
challenges his sentence on the grounds of prosecutorial
misconduct and ineffective assistance of counsel. (Doc. 1).
was sentenced to 35 years and 30 years concurrently on a
charge of First Degree Murder and Armed Robbery on July 5,
2000 in Madison County, Illinois. (Doc. 1, p. 1). He pleaded
not guilty, but a jury found him guilty. (Doc. 1, p. 2).
Petitioner appealed the judgment to the Appellate Court of
Illinois, Fifth Judicial District, which affirmed the trial
court result on June 7, 2002. Id. The Supreme Court
of Illinois denied Petitioner's appeal on October 2,
2002. (Doc. 1, p. 3). Petitioner filed a motion for
post-conviction relief on April 2, 2003. Id. That
motion is still pending. (Doc. 1, p. 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.”
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.
has affirmatively stated here that he has not exhausted his
state court remedies. He argues that the state court's
inexplicable delay in ruling on his motion for
post-conviction relief excuses the exhaustion requirement in
this case. (Doc. 2).
habeas corpus relief is not the appropriate remedy for an
allegation that a state court has inordinately delayed ruling
on a collateral attack on a conviction. Jackson v.
Duckworth, 112 F.3d 878, 881 (7th Cir. 1997) (quoting
Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir.
1996)). However, “inordinate, unjustifiable delay in a
state-court collateral proceeding excuses the requirement of
petitioners to exhaust their state-court remedies before
seeking federal habeas corpus relief.”
Jackson, 112 F.3d at 881 (citing, e.g., Lane v.
Richards, 957 F.2d 363, 365 (7th Cir.1992)). Petitioner
has alleged that he has been awaiting a ruling on his motion
for post-conviction relief for more than 13 years. At the
pleading stage, petitioner has sufficiently alleged that this
amount of time may constitute an inordinate, unjustifiable
delay that could potentially excuse the exhaustion
IT IS HEREBY ORDERED that respondent shall answer the
Petition or otherwise plead within thirty (30) days of the
date this order is entered. This preliminary order to respond
does not, of course, preclude the State from making whatever
waiver, exhaustion, or timeliness argument it may wish to
present. Service upon the United States Attorney for the
Southern District of Illinois, 750 Missouri Avenue, East St.
Louis, Illinois shall constitute sufficient service.
FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford
J. Proud for further pre-trial proceedings.
FURTHER ORDERED that this entire matter be REFERRED to United
States Magistrate Judge Clifford J. Proud for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), should all the parties consent to such a
is ADVISED of his continuing obligation to keep the Clerk
(and each opposing party) informed of any change in his
whereabouts during the pendency of this action. This
notification shall be done in writing and not later ...