United States District Court, S.D. Illinois
MICHAEL L. SPARKS, # K-98355 Petitioner,
KIMBERLY BUTLER, Respondent.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN CHIEF JUDGE
matter is on remand from the Seventh Circuit Court of
Appeals. Sparks v. Dorethy, App. No. 17-2135 (7th
Cir.). Now before the Court for preliminary review is an
Amended Petition for Habeas Relief Pursuant to 28 U.S.C.
§ 2254 (“Amended Petition”) filed by
Petitioner Michael Sparks through his counsel, Attorney
Andrea Gambino, on March 26, 2018. (Doc. 58). The Amended
Petition survives preliminary review and warrants a response.
commenced this federal habeas action by filing a
“mixed” Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (“Original
Petition”) on September 29, 2014. (Doc. 1). The
Original Petition included a mixture of both exhausted and
unexhausted claims. Id. Of the twelve claims
presented, Petitioner indicated that five were exhausted and
seven were not. (Docs. 1 and 6). Along with the Original
Petition, he filed a motion seeking a stay and abeyance under
Rhines v. Weber, 544 U.S. 269 (2005). After finding
that Petitioner did not satisfy the requirements for a stay
and abeyance, the Court dismissed the seven unexhausted
claims and allowed Petitioner to proceed with his five
exhausted claims. (Doc. 6). After the matter was fully
briefed, this Court denied habeas relief and a certificate of
appealability on May 4, 2017. (Doc. 46).
appealed. (Doc. 48). On January 9, 2018, the Seventh Circuit
vacated the District Court's decision. (Doc. 56-1). The
Seventh Circuit remanded this matter, so that the District
Court could dismiss the mixed petition under Rose v.
Lundy, 455 U.S. 509 (1982), and allow Petitioner to
decide whether to delete the unexhausted claims and amend
or stay proceedings pursuant to Rhines v.
Weber, 544 U.S. 269 (2005). On remand, the district
court concluded that the Original Petition should be
dismissed, and Petitioner was granted leave to file an
amended petition. (Doc. 57).
March 26, 2018, Petitioner filed an Amended Petition focusing
on the following claims:
1. Sparks was denied his Fifth, Sixth, and Fourteenth
Amendment rights to due process and a fair trial when he was
forced to wear an electronic stun belt during trial without a
showing of manifest need (Doc. 58, p. 2);
2. Sparks was denied his Fifth Amendment privilege against
self-incrimination and Fifth/Fourteenth Amendment right to
due process when the State's attorney used another jail
inmate, Manuel Tomerlin, to obtain incriminating statements
from Sparks outside the presence of Sparks' defense
counsel (Doc. 58, p. 7);
3. Sparks' Fifth and/or Fourteenth Amendment right to due
process and a fair trial was violated when the State's
attorney introduced testimony of Manuel Tomerlin that he knew
or should have known was perjured (Doc. 58, p. 13);
4. Trial counsel was ineffective in failing to investigate
and call witnesses to impeach Tomerlin's testimony about
Sparks' jailhouse confession (Doc. 58, p. 21); and
5. Trial counsel was ineffective in failing to raise trial
counsel's failure to investigate and call witnesses as
alleged above on direct appeal (Doc. 58, p. 24).
omitted his seven unexhausted claims from the Amended
Petition. He seeks to overturn his conviction on the basis of
his five exhausted claims.
Amended Petition is subject to screening 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 petitioner.” After carefully
reviewing the claims, the Court concludes that the Amended
Petition warrants further review.
IS HEREBY ORDERED that Respondent shall answer the
Amended Petition or otherwise plead within thirty days of the
date this order is entered (on or before May 17,
2018).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.
IS FURTHER ORDERED that pursuant to Local Rule
72.1(a)(2), this cause is referred to United States
Magistrate Judge Clifford J. ...