United States District Court, S.D. Illinois
DEMETRUS COLE, No. S-01875, Petitioner,
JACQUELINE LASHBROOK, Respondent.
MEMORANDUM AND ORDER
Herndon United States District Judge
Demetrus Cole, a state prisoner now
housed at Menard Correctional Center, has filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges his 2010 conviction for murder and
robbery. He is currently serving sentences totaling 52 years,
imposed by the Circuit Court of Jefferson County, Illinois,
following a jury trial in Case No. 06-CF-429. (Doc. 1, pp.
1-2). Petitioner challenges his conviction based on alleged
errors by the trial court regarding voir dire, jury
instructions, and admissibility of testimony and other
evidence; ineffectiveness of trial and appellate counsel; and
prosecutorial misconduct. (Doc. 1, pp. 19-37).
judgment of conviction was entered on March 5, 2010. (Doc. 1,
pp. 1, 39). On August 15, 2012, his conviction and sentence
were affirmed on direct appeal. (Doc. 1, pp. 2, 40). On
November 28, 2012, the Illinois Supreme Court denied his
petition for leave to appeal. Id. Petitioner did not
seek further review by the United States Supreme Court. (Doc.
1, p. 3).
December 26, 2013, petitioner filed a petition for
post-conviction relief in the trial court. (Doc. 1, pp. 3,
39). That petition was denied on March 21, 2014, and
petitioner appealed. (Doc. 1, pp. 4, 43-44). On November 29,
2016, the Illinois Appellate Court, Fifth District, affirmed
the dismissal of the post-conviction action. (Doc. 1, pp. 4,
44-59). Petitioner sought further review by the Illinois
Supreme Court, but on March 29, 2017, his petition for leave
to appeal was denied. (Doc. 1, pp. 15, 60).
instant habeas action was filed on May 1, 2017. (Doc. 1, p.
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.”
indicates that he has exhausted his state court remedies with
respect to the claims raised in his federal habeas petition;
furthermore, he appears to have filed his Petition in a
timely manner. See 28 U.S.C. § 2244(d)(1)(A);
(d)(2). Without commenting on the merits of petitioner's
claims, the Court concludes that the petition survives
preliminary review under Rule 4 of the Rules Governing
Section 2254 Cases in United States District Courts.
motion for recruitment of counsel (Doc. 2) is DENIED without
prejudice at this time as premature. Counsel may be appointed
in a habeas corpus proceeding only if an evidentiary hearing
is needed or if interests of justice so require. See
Rule 8(c) Rules Governing Section 2254 Cases. Whether the
interests of justice require appointment of counsel in this
case cannot be determined until after the Court has had an
opportunity to review and consider the Respondent's
answer to the Petition.
motion for leave to proceed in forma pauperis (Doc.
4) is DENIED AS MOOT. Petitioner has made full payment of the
$5.00 filing fee for this action.
HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this Order is entered.
This preliminary order to respond does not, of course,
preclude the State from raising any objection or defense it
may wish to present. Service upon the Illinois Attorney
General, Criminal Appeals Bureau, 100 West Randolph, 12th
Floor, Chicago, Illinois 60601 shall constitute sufficient
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 Proud for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §