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Killion v. Nester

United States District Court, S.D. Illinois

July 24, 2017

ANTOINE D. KILLION, #42054-177 Plaintiff,
v.
GREG NESTER, MADELYN DALEY, OFFICER JENKS, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT United States District Judge.

         Plaintiff, Antoine D. Killion, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 while he was incarcerated at Big Muddy Correctional Center. Plaintiff has since been released on parole. In his First Amended Complaint (Doc. 8), Plaintiff alleges Greg Nester and Madelyn Daley, both employed by the Public Defender's Office in St. Clair County, Illinois provided ineffective assistance of counsel in relation to Plaintiff's criminal case. Additionally, Plaintiff alleges that Officer Jenks violated his constitutional rights by delaying the filing of Plaintiff's ineffective assistance of counsel motion. In connection with these claims, Plaintiff seeks monetary damages.

         This case is now before the Court for a preliminary review of the First Amended Complaint (Doc. 8) pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening - The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

         An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         This action does not survive preliminary review under the above standard.

         First Amended Complaint

         In June 2015, Plaintiff was charged with multiple counts of aggravated battery. See St. Clair County Case No. 15-CF-736 (Illinois v. Killion). The First Amended Complaint indicates that, after a bench trial, Plaintiff was found guilty and was sentenced on February 8, 2016. (Doc. 8, pp. 6-10). Assistant Public Defender Nester served as Plaintiff's counsel through the sentencing hearing on February 8, 2016. (Doc. 8, pp. 1, 6-10). Plaintiff contends that Nester provided him with ineffective assistance of counsel. (Doc. 8, pp. 6-10). Specifically, Plaintiff contends Nester failed to request a hearing on a video recording used as evidence in Plaintiff's case (Doc. 8, p. 8); failed to request a preliminary hearing on other matters (Doc. 8, pp. 8, 10); forced Plaintiff to agree to a bench trial (Doc. 8, p. 10); and mishandled Plaintiff's sentencing hearing (Doc. 8, pp. 8, 10).

         Plaintiff's sentencing hearing was held on February 8, 2016. (Doc. 8, p. 6). Prior to the sentencing hearing, Plaintiff gave Officer Jenks, the officer responsible for transporting Plaintiff, an ineffective assistance of counsel motion. Id. The motion objected to Nester's handling of Plaintiff's case. Id. Plaintiff expected the motion to be filed and heard before the sentencing. Id. The motion was not filed or heard. Id. On February 11, 2016, after Plaintiff was sentenced, Officer Jenks returned the motion to Plaintiff with a “sticky” note that read: “You want this filed right?” Officer Jenks told Plaintiff that Nester had taken the motion off of Officer Jenks' desk, but the motion was never filed. Id. Plaintiff wrote a second ineffective assistance of counsel motion and mailed the motion to the court (attaching the unfiled motion as an exhibit). Id.

         On April 7, 2016, a hearing was held on Plaintiff's ineffective assistance of counsel motion. Id. The court concluded that Plaintiff's claims were unfounded. Id. Nevertheless, the court directed Nester “to tell the head public defender John O' Gara to switch public defenders.” Id. Thereafter, Madelyn Daley, an assistant public offender, was appointed to handle Plaintiff's post-trial matters, including representing Plaintiff at his motion to reconsider sentencing. Id.

         Plaintiff also contends that Daley provided him with ineffective assistance of counsel. (Doc. 8, pp. 6-9). Plaintiff contends that Daley failed to consult with him prior to his hearing on the motion to reconsider sentencing and otherwise mishandled the hearing. (Doc. 8, pp. 6-9). Additionally, Plaintiff contends that Daley failed to follow Krankel ...


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