United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon Judge.
currently incarcerated in Pinckneyville Correctional Center,
brings this habeas corpus action pursuant to 28 U.S.C. §
2254 requesting that the Court grant him relief from his
unconstitutional conviction and sentence. (Doc. 16, p. 33).
initially filed the Petition on March 28, 2016. (Doc. 1). On
April 22, 2016, the Court dismissed the Petition without
prejudice for failure to name the proper respondent and
appointed the Federal Public Defender to represent
Petitioner. (Doc. 4). The Court initially directed that an
Amended Petition be filed no later than July 5, 2016, but
after several extensions, the Amended Petition was due July
10, 2017. (Docs. 4, 7, 9, 12 & 15). The Amended Petition
was in fact filed on July 10, 2017, along with several
exhibits. (Docs. 16-19).
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.”
9, 2004, Petitioner was indicted on two counts of
solicitation of murder in violation of 720 ILCS 5/8-1.1(a);
two counts of solicitation of murder for hire in violation of
720 ILCS 5/8-1.2(a) and one count of attempted first degree
murder in violation of 720 ILCS 5/8-4 and 720 ILCS 5/9-1.
(Doc. 16, p. 1). Later that same year, a second indictment
charged Petitioner with an additional 3 counts of
solicitation of murder, 3 counts of solicitation of murder
for hire, and 3 counts of attempted first degree murder.
his state court proceedings, competency hearings were held on
December 8, 2005, January 4, 2006, and January 6, 2006. (Doc.
16, pp. 1-2). After hearing from two State experts and one
defense expert, the court found Petitioner fit to stand
trial. (Doc. 16, p. 2). Petitioner subsequently entered a
negotiated plea of guilty to four of the counts; he was
sentenced to 20 years' imprisonment on each of the
solicitation counts, to run concurrently and 10 years' on
the attempted murder count to run consecutively to the
sentence for solicitation. Id.
did not file a direct appeal. Id. He filed a
post-conviction petition in Cook County on May 21, 2009.
Id. The trial court dismissed the petition after
declining to appoint Petitioner an attorney. (Doc. 16, p. 3).
Petitioner appealed on August 12, 2009. (Doc. 16, p. 4). This
time, he was given a public defender. Id.
Regardless, the dismissal was affirmed on May 13, 2011.
Id. Petitioner filed several other documents on
February 4, 2014; these were summarily dismissed on February
11, 2014. (Doc. 16, pp. 4-5).
argues that his attorney at trial was ineffective for failing
to argue that the State's primary expert opinion on
competency was premised on a standard that did not comply
with the Supreme Court's competency standard, and for
failing to adequately investigate and present evidence at the
competency hearing regarding Petitioner's level of
functioning prior to his arrest. (Doc. 16, pp. 25-26).
Petitioner further argues that he was not actually competent
to enter a guilty plea, making his plea involuntary. (Doc.
16, p. 26).
Petitioner argues that ineffective assistance of
post-conviction counsel should excuse any procedural default.
(Doc. 16, pp. 14-17). He also believes that his mental
condition, incompetence, and other limitations are grounds
for excusing any procedural default and/or equitable tolling.
(Doc. 16, pp. 17-25).
are some indications in the Petition that it is untimely,
unexhausted, and procedurally defaulted. However, Petitioner
has raised arguments as to each of these issues. For these
reasons, the Court orders a Response so that it may consider
the issues raised by the Petition, and any other issues
Respondent would like to raise, on a more developed record.
HEREBY ORDERED that Respondent shall answer the petition 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 making whatever waiver,
exhaustion, or timeliness argument 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 service.
FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford