United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON, District Judge
Floyd Robinson, an inmate who is currently incarcerated in
Lawrence Correctional Center, brings this habeas corpus
action pursuant to 28 U.S.C. § 2254, in order to
challenge certain actions taken by the Fifth District
Appellate Court of the State of Illinois. (Doc. 1). 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 shall be DISMISSED.
2012, Petitioner pleaded guilty to charges of retail theft
and escape and was sentenced to 3 years and 10 years for
these offenses, with the terms to run concurrently. (Doc. 1,
at 1). Petitioner moved pro se to withdraw his
guilty plea on May 2, 2012, and his original defense counsel
also filed a motion to reconsider and a motion to withdraw
Petitioner's guilty plea on May 11, 2012. (Id.
at 1-2). Petitioner's original defense counsel was
removed from the case on July 31, 2012, and new defense
counsel was assigned to Petitioner's case and directed to
file an amended motion to withdraw guilty plea. (Id.
at 2). Without Petitioner's knowledge, his new counsel
filed an amended motion to withdraw his guilty plea and
vacate judgment on October 17, 2010, and it was denied the
same day. Id. Petitioner tendered a post-conviction
petition on November 6, 2012 with the 20th Judicial Circuit
Court of the State of Illinois. Id. He was appointed
counsel, who filed an amended petition on August 13, 2013.
Id. Petitioner's petition was dismissed on
August 8, 2014 following a hearing. Id. After his
motion to reconsider in response to the dismissal was
ignored, Petitioner filed a notice of appeal. Id.
requested and was granted leave to proceed pro se on
appeal. (Id. at 3). When he filed his appellate
brief, it was rejected because of its excessive length.
Id. He sought leave to exceed the page limit, but
his request was denied. Id. He then requested an
extension of time to file his brief and was given a
“final deadline” of November 16, 2015 pursuant to
an order entered on September 16, 2015. Id. He then
submitted another request to the appellate court for an
extension of the briefing deadline to December 16, 2015.
presented his brief to a guard for mailing on November 13,
2015. Id. The appellate court denied
Petitioner's request for an extension and dismissed his
appeal for want of prosecution on November 17, 2015.
Petitioner filed several motions seeking reconsideration of
the decision arguing that his brief was timely filed.
(Id. at 4). One such motion was denied on December
11, 2015, and the rest were ignored. Id.
sent a notice of appeal to the appellate court and a petition
for leave to appeal to the Illinois Supreme Court on January
7, 2016. Id. Petitioner was denied leave to appeal
on March 30, 2016, and his efforts to move for
reconsideration were unavailing. (Id. at 5). On May
4, 2016, the Illinois Supreme Court issued a mandate to the
appellate court, and the appellate court dismissed
Petitioner's appeal on May 13, 2016. Id.
Petitioner filed a notice of appeal to the Illinois Supreme
Court on September 9, 2016, signaling his intention to appeal
to this federal court. Id.
challenges the Fifth District Appellate Court's decision
dated November 17, 2015. There, the state appellate court
dismissed his appeal from the circuit court's decision to
deny his post-conviction petition in Case No. 11-CF-825.
(Id. at 2-3). Petitioner alleges that his appellate
brief was timely submitted under the “mailbox rule,
” and the appellate court erred in dismissing the
appeal for want of prosecution. (Id. at 4).
Petitioner does not challenge the constitutionality of his
conviction, sentence, or present confinement. Instead, he
seeks to “have his timely filed brief heard in the
Fifth District Appellate Court on the Merits.”
(Id. at 6).
does not seek a determination that his custody violates the
Constitution, laws, or treaties of the United States, as is
the purview of § 2254. Petitioner instead asks this
Court to order the state appellate court to hear
Petitioner's claims. Such a request may be appropriate
for an appeal to the state supreme court or a petition for
leave to appeal in the United States Supreme Court. However,
this Court is not authorized to grant the relief Petitioner
now seeks under § 2254. The Court may “entertain
an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” See 28 U.S.C. § 2254(a)
this Court had authority to grant the relief Petitioner now
seeks under § 2254, it cannot grant this relief against
the “People of the State of Illinois.” Petitioner
has failed to name the proper respondent. Rule 2 of the Rules
Governing § 2254 Cases in United States District Courts
provides that the petition must name as respondent the state
officer who has custody of the Petitioner. Since Petitioner
is incarcerated in Lawrence Correctional Center, the proper
respondent is the warden of that facility rather than the
“People of the State of Illinois.”
HEREBY ORDERED that the Petition is summarily DISMISSED
without prejudice. This dismissal is without prejudice in
case Petitioner exhausts all state court remedies and
eventually seeks to argue “that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254.
Petitioner desire to appeal this Court's ruling
dismissing his petition for a writ of habeas corpus, he must
first secure a certificate of appealability, either from this
Court or from the Seventh Circuit Court of Appeals.
See Fed. R. App. P. 22(b); see also 28
U.S.C. § 2253(c)(1). Pursuant to 28 U.S.C. § 2253,
a certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” This requirement has been
interpreted by the Supreme Court to mean that an applicant
must show that “reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). While a Petitioner need not show that
his appeal will succeed, Miller-El v. Cockrell, 537
U.S. 322, 337 (2003), he must show “something more than
the absence of ...