United States District Court, S.D. Illinois
MARK J. ANDERSON, Petitioner,
KAREN JAMIET, Respondent.
MEMORANDUM AND ORDER
R. Herndo United States District Judge
Mark J. Anderson is in the custody of the Illinois Department
of Corrections, housed at Pickneyville Correctional Center.
Petitioner brings this action pursuant to 28 U.S.C. §
2254. (Doc. 1). A jury found petitioner guilty of 2 counts of
predatory criminal sexual assault and 1 count of aggravated
sexual abuse. (Doc. 1, p. 1). Petitioner was sentenced to 2
terms of 10 years' imprisonment on the predatory criminal
sexual assault charges, and a term of 3 years'
imprisonment on the aggravated sexual abuse charge, all to
run consecutively for a total of 23 years. Id.
Petitioner alleges that his state court proceedings were
impermissibly tainted by 1) inadmissible hearsay statements;
2) the introduction of petitioner's illegally obtained
confession; 3) lack of corroborating evidence; 4) lack of DNA
testing; and 5) ineffective assistance of counsel. (Doc. 1,
pp. 8-12). Petitioner also alleges that he is actually
innocent. (Doc. 1, p. 11).
was adjudged guilty on June 30, 2003. (Doc. 1, p. 1). He was
sentenced on December 12, 2003. Id. Petitioner
appealed; his conviction was affirmed and the Illinois
Supreme Court rejected his petition for leave to appeal on
August 8, 2011. (Doc. 1, p. 3). The Supreme Court denied
certiorari on June 4, 2012. Id. Petitioner also
filed a post-conviction petition on April 26, 2006.
Id. That petition was denied on February 15, 2008.
(Doc. 1, p. 4). Petitioner filed a request for DNA testing,
which was denied on July 18, 2012. Id. He filed
another petition for post-conviction relief on December 11,
2012. (Doc. 1, p. 5). That petition was initially denied.
Id. The Illinois Supreme Court denied a PLA on that
petition on March 30, 2016. (Doc. 1, p. 6).
of the Rules Governing Section 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.”
petition suggests that petitioner has been diligently
pursuing his state court remedies since the time of his
conviction and sentencing. It further raises several grounds
of error in the state court proceedings. The state court
record is not available to the Court at present. At this
stage, the Court cannot conclude that dismissal is
appropriate. Further review of the petition is necessary.
Respondent will be ordered to answer the petition or
otherwise file a responsive pleading.
Order shall not be construed as an opinion on the merits of
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 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
this is only a preliminary review. 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).
that said, a response shall be ordered.
HEREBY ORDERED that the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 shall proceed past
FURTHER ORDERED that respondent shall answer the petition
within 30 days of the date this Order is entered. This Order
to respond does not preclude the state from making whatever
waiver, exhaustion, or timeliness arguments it may wish to
present. Service upon the Illinois Attorney General, Criminal
Appeals Bureau, 100 West Randolph, 12th Floor, Chicago,
Illinois, shall constitute sufficient service.
ALSO ORDERED that, pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to Magistrate Clifford J. Proud for further
FURTHER ORDERED that this entire matter be REFERRED to
Magistrate Judge Clifford J. Proud for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §