Gay v. Lambert
Filing
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ORDER AND OPINION entered by Judge Joe Billy McDade on 11/5/2012. IT IS THEREFORE ORDERED that Petitioners Motion for Leave to Proceed in forma pauperis (Doc. 2) is GRANTED and his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED WITH PREJUDICE. (cc: Petitioner) (KB, ilcd)
E-FILED
Monday, 05 November, 2012 11:28:34 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ANTHONY GAY,
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Petitioner,
v.
GREG LAMBERT,
Respondent.
Case No. 12-cv-1453
ORDER & OPINION
This matter is before the Court on Petitioner’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), and his Motion for Leave to Proceed
in forma pauperis (Doc. 2), received by the Court on October 31, 2012. For the
reasons stated below, Petitioner is granted leave to proceed in forma pauperis and
his Petition is dismissed with prejudice.
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner submitted a Motion for Leave to Proceed in forma pauperis
concurrently with his § 2254 petition, requesting the privilege under 28 U.S.C.
§ 1915 to proceed with his claim without prepayment of filing fees. In his Motion,
Petitioner asserts, under penalty of perjury, that he does not currently have and has
not in the past twelve months had a source of income. (Doc. 2). Supporting his
Motion, the trust fund account statement submitted by Petitioner shows a negative
balance. (Doc. 3). Therefore, the Court grants Petitioner’s Motion. The Court has
discretion to order a partial payment, but will not exercise it in this case, as it is
plain that Petitioner cannot afford even a minimal payment.
28 U.S.C. § 2254 PETITION
Petitioner was convicted of aggravated battery and sentenced to five years of
imprisonment in case number 01-cf-234, in the Livingston County Circuit Court.1
(Doc. 1 at 1). His conviction was affirmed on direct appeal and his state postconviction petition was denied (Doc. 1 at 2-3). Petitioner raises only one claim in his
Petition. He asserts that because the Illinois Department of Corrections failed to
note in its disciplinary report of Petitioner’s conduct that there was a violation of
state or federal law, indicated by the code “501,” he was not given notice that a
criminal conviction and sentence could result from his behavior and therefore his
due process rights were violated. (Doc. 1 at 5). Petitioner seeks to have his
conviction reversed. (Doc. 1 at 15).
Rule 4 of the Rules Governing Section 2254 Cases in the District Courts
requires the district court to “promptly examine” a new § 2254 petition and dismiss
it “[i]f it plainly appears . . . that the petitioner is not entitled to relief in the district
court.” The Court has examined the Petition, and finds that, for the following
reasons, Petitioner is plainly not entitled to relief.
Petitioner is correct that due process requires notice of the conduct that is
prohibited in order to validly convict for such conduct. See, e.g., Bouie v. City of
Columbia, 378 U.S. 347, 350-51 (1964). However, Petitioner has not suffered a
1
The Court notes that Petitioner has filed multiple § 2254 petitions in this Court, but on initial
review, this appears to be the only petition relating to this conviction.
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violation of this due process requirement. First, because he claims the violation of
law should have been cited in a disciplinary report, the notice he claims he was
denied would have come after the conduct resulting in his conviction.2 Second, it is a
fundamental maxim that “ignorance of the law is no defense to criminal
prosecution.” Cheek v. United States, 498 U.S. 192, 199 (1991); see also United
States v. Bryza, 522 F.2d 414, 423 (7th Cir. 1975) (“[E]very man is presumed to
know the law.”).
The exceptions to the rule that ignorance of the law is not a defense are
inapplicable here. In contrast with many federal tax laws, the Illinois aggravated
battery statute does not require a showing that the defendant acted “willfully” in
committing the aggravated battery. 720 Ill. Comp. Stat. 5/12-3.05; see also Cheek,
498 U.S. at 200 (“[T]he standard for the statutory willfulness requirement is the
voluntary, intentional violation of a known legal duty.” (quoting United States v.
Bishop, 412 U.S. 346, 360 (1973)) (internal quotation marks omitted)). Likewise,
aggravated battery is not a crime punishing inaction that is ordinarily non-criminal;
Illinois’ aggravated battery statute requires affirmative conduct that a reasonable
person would know carries a possible criminal sanction. 720 Ill. Comp. Stat. 5/123.05; Lambert v. People of the State of California, 355 U.S. 225, 229 (1957).
Petitioner does not allege that the statute was not in force at the time of the actions
leading to the aggravated battery charge and conviction, and so cannot argue that
2
As Petitioner seeks reversal of his conviction and asserts lack of notice that he could be
criminally convicted, this is not the type of claim recognized under Wolff v. McDonnell, 418 U.S.
539 (1974), in which prisoners have procedural due process rights before removal of good time
credits or other disciplinary measures can be imposed within the prison administrative system.
He also does not claim he was not notified of the charges against him before he was convicted.
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he was not “on notice” of the possibility of a criminal charge. Therefore, Petitioner is
plainly not entitled to relief in this Court, as there was no due process violation.
Thus, his Petition must be dismissed as meritless.
IT IS THEREFORE ORDERED that Petitioner’s Motion for Leave to Proceed
in forma pauperis (Doc. 2) is GRANTED and his Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED WITH PREJUDICE.
Entered this 5th day of November, 2012.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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