United States District Court, S.D. Illinois
NATHANIEL JOHNSON, No. B84311, Petitioner,
CRAIG FOSTER Defendant.
MEMORANDUM AND ORDER
DAVID R. HERNDON, UNITED STATES DISTRICT JUDGE.
Nathaniel Johnson, an inmate in the custody of the Illinois
Department of Corrections and currently housed at Graham
Correctional Center, brings this action for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner is
challenging an Illinois state court conviction. The Petition
was filed on August 25, 2017.
matter is now before the Court for a preliminary review of
the § 2254 Petition pursuant to Rule 4 of the Rules
Governing § 2254 Cases in United States District Courts.
Rule 4 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
- Illinois Courts
August 2003, the State of Illinois charged Petitioner with
one count of first-degree murder and one count of aggravated
arson. The charges stemmed from a fire allegedly set by
Petitioner in Centreville on January 17, 2003, that resulted
in the death of 10-year-old Treyveon Barnes, the son of
Petitioner's estranged wife. Id. On December 16,
2004, Petitioner entered a negotiated plea of guilty to an
amended charge of aggravated arson, filed that day, in
exchange for, inter alia, the State dropping the
charge of first-degree murder. Id. Petitioner
received the joint recommended maximum sentence of 30 years
in prison. Id.
January 2005, Petitioner filed a motion for reduction of
sentence that was ultimately unsuccessful. In April 2006,
Petitioner filed a pro se postconviction petition.
Id. An amended postconviction petition was filed by
counsel on June 1, 2010. Id. The postconviction
petition was dismissed and Petitioner appealed to the
Illinois Appellate Court. Id. On May 7, 2014, the
Illinois Appellate Court issued an order affirming the
circuit's court's dismissal of the amended
postconviction petition. Id. The Illinois Supreme
Court denied leave to appeal on September 24, 2014.
then filed a request for leave to file a successive petition
for postconviction relief with the state trial court. The
request was denied on August 13, 2015. Petitioner timely
appealed the trial court's decision to the state
appellate court. According to the Petition, that appeal is
still pending (hereinafter, “2015 Appeal”). (Doc.
1, p. 14 (stating that Petitioner's 2015 Appeal is
“currently awaiting appointment of counsel to prepare
and file necessary briefs; No. 5-15-0381.”)).
December 21, 2015, Petitioner filed an action for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254
(“original Petition”). See Johnson v.
Polley, 3:15-cv-1387-DRH. At the time of filing,
Petitioner's 2015 Appeal was pending in the Illinois
Appellate Court. Johnson v. Polley,
3:15-cv-1387-DRH, Doc. 6. Accordingly, the undersigned judge
dismissed the action, without prejudice, for failure to
exhaust state court remedies. Id. On August 1, 2017,
Petitioner filed a Motion to Reinstate Petition, claiming he
had exhausted his state court remedies. Johnson v.
Polley, 3:15-cv-1387-DRH, Doc. 19. The Court denied the
motion, explaining that, if Petitioner's state court
remedies had been exhausted, the proper course of action is
to file a new § 2254 petition. Johnson v.
Polley, 3:15-cv-1387-DRH, Doc. 20.
2254 generally requires state prisoners to exhaust available
state court remedies before seeking habeas review in federal
court.” Gacho v. Butler, 792 F.3d 732, 735
(7th Cir. 2015); see 28 U.S.C. § 2254(b)(1)(A).
“[T]he exhaustion doctrine is designed to give the
state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to
the federal courts.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see 28 U.S.C. §
2254(c). Exhaustion is excused only if the “there is an
absence of available State corrective process, ” or
“circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1)(B)(i)-(ii).
Motion to Reinstate that was recently filed in the original
Petition suggests that Petitioner has exhausted his state
court remedies. However, the Petition filed in the instant
case clearly states that the 2015 Appeal is still
pending. (Doc. 1, p. 14 (stating that Petitioner's
2015 Appeal is “currently awaiting appointment of
counsel to prepare and file necessary briefs; No.
5-15-0381.”)). Further, the ...