United States District Court, S.D. Illinois
ANTONIO D. FLETCHER-BEY, Petitioner,
MICHAEL P. MELVIN, Respondent.
MEMORANDUM AND ORDER
R. HERNDON UNITED STATES DISTRICT JUDGE
currently incarcerated in Pontiac Correctional Center, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254
requesting that the Court reverse his state court conviction
because the state did not prove an element of the crime
beyond a reasonable doubt, or in the alternative, grant him a
new trial, or reduce his sentence because the parole statute
in effect at the time was ambiguous. (Doc. 1, p. 19).
was sentenced to 28 years' imprisonment on January 30,
2007 for aggravated kidnapping in violation of 720 ILCS
5/10-2(a)(3) after a jury trial. (Doc. 1, pp. 1-2). He
appealed on the ground that his waiver of counsel was not
voluntary; the appellate court denied his petition on May 19,
2009 and his petition for rehearing on July 27, 2009. (Doc.
1, p. 2). The Illinois Supreme Court denied his petition for
leave to appeal on November 25, 2009. (Doc. 1, p. 3).
Petitioner filed a motion seeking post-conviction relief in
the state court on December 31, 2008, which he amended on
February 19, 2009. Id. That motion raised two
issues: 1) Petitioner's sentence for aggravated
kidnapping violated the proportionate penalties clause; 2)
the state failed to prove the secrecy element of aggravated
kidnapping. (Doc. 1, p. 4). That petition was denied some
time in the spring of 2009. Id. Petitioner filed a
second petition for post-conviction relief in state court on
April 5, 2010 alleging that 1) voir dire was improper; 2) the
court failed to admonish Petitioner of his right to file
post-trial motions; 3) the prosecution failed to prove secret
confinement element of aggravated kidnapping; 4) the
prosecution made an improper closing argument; and 5)
ineffective assistance of appellate counsel. Id.
That petition was denied on May 22, 2013. Id.
Petitioner filed a third petition in the state court on June
10, 2016. (Doc. 1, p. 5). That motion argued the state
violated the hearsay exception rule and that the MSR statute
was ambiguous at the time of Petitioner's sentence.
Id. The Court of Appeals denied that petition on
November 1, 2016 and rehearing was denied on December 16,
alleges that his state court conviction was obtained without
proof beyond a reasonable doubt that the secrecy element of
aggravated kidnapping was met. (Doc. 1, p. 8). Petitioner
also argues that the state court judge did not adequately
allow him to inquire into the racial biases of the jurors,
despite the fact that Petitioner is a black man accused of
committing a crime against a white woman. (Doc. 1, p. 10).
Next, Petitioner states that his waiver of counsel was not
unequivocal, unambiguous, or voluntary. (Doc. 1, p. 12).
Petitioner also believes he is entitled to relief because he
alleges the prosecution committed reversible error during
summation. (Doc. 1, p. 14). Ground Five alleges that the
conviction was obtained in violation of the hearsay exception
rule. (Doc. 1, p. 16). Finally, Petitioner's last ground
is that a term of supervised release was imposed pursuant to
an ambiguous statute that has since been revised.
Id. Petitioner requests that his conviction be
reversed, or in the alternative, that he receive a new trial,
or have his sentenced reduced. (Doc. 1, p. 19).
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.”
allegations raise a colorable inference that his
constitutional rights may have been violated. However, there
are a number of preliminary issues the Court must address
when reviewing a Petition pursuant to § 2254. According
to § 2244(d)(1), a person convicted in state court must
file his federal habeas petition within one year of the
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
one-year statute of limitations is tolled during the pendency
of a “properly-filed” state post-conviction
petition. 28 U.S.C. § 2244(d)(2). Equitable tolling may
be available in appropriate cases, but a petitioner must show
“‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way' and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 645-649 (2010)
citing Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). The Supreme Court has emphasized that “the
circumstances of a case must be ‘extraordinary'
before equitable tolling can be applied.”
Holland, 560 U.S. at 652.
before 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);
Spreitzer v. Schomig, 219 F.3d 639, 644-45 (7th Cir.
2000). Further, “[i]f a prisoner fails to present his
claims in a petition for ...