Adkins v. Wright

Filing 32

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 5/31/2011. Petitioner's request for leave to file an amended habeas petition 29 is granted, with the clarifications discussed below. The stay entered by Judge Andersen (see 9 12 ) is continued. For further details, see below. [ For further details see written opinion.] (ca, ).

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert Dow, Jr.

CASE NUMBER

06 C 4834

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/31/2011

Adkins vs. Acevedo

DOCKET ENTRY TEXT

Petitioner’s request for leave to file an amended habeas petition [29] is granted, with the clarifications discussed
below. The stay entered by Judge Andersen (see [9, 12]) is continued. For further details, see below.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Pro se Petitioner Anthony Adkins, an inmate in the Illinois Department of Corrections identified as prisoner
number B34514, signed a 28 U.S.C. § 2254 petition for writ of habeas corpus on August 31, 2006. [1, 7].
The Court received the petition on September 6, 2006. Id. In the petition, Petitioner identified certain claims
that were exhausted and ripe for adjudication by the Court. However, Petitioner stated that some of his
claims were the subject of state postconviction proceedings, see 725 ILCS 5/122-1, et seq., that were then
pending in the Circuit Court of Cook County, Illinois. Judge Andersen (to whom this case was previously
assigned) stayed the case at petitioner’s request, pending the conclusion of petitioner’s postconviction
proceedings. [9, 12].
On January 27, 2010, Petitioner filed of a petition for relief from judgment, see 735 ILCS 5/2-1401, in the
Circuit Court of Cook County, Illinois. According to Petitioner, the 2-1401 petition raised six additional
claims.
On January 26, 2011, the Illinois Supreme Court denied petitioner’s postconviction petition for leave to
appeal (PLA) regarding the unexhausted claims in the original habeas petition, bringing those postconviction
proceedings to an end. See People v. Adkins, 943 N.E.2d 1101 (Ill. 2011) (table). Thus, petitioner appears to
have exhausted his state court remedies for all of the claims raised in his original habeas petition, see [1], and
they are ripe for adjudication.
However, on March 28, 2011, Petitioner filed an amended petition for writ of habeas corpus [29], which the
Court construed as a motion for leave to file an amended petition. See [30]. The amended petition contains a
total of six claims. According to Petitioner, the claims in his amended habeas petition are the same as those
that he seeks to litigate in the 2-1401 petition. According to Respondent, representatives of the Cook County
State’s Attorney, the Clerk of the Circuit Court of Cook County, and the Clerk of the Illinois Appellate
06C4834 Adkins vs. Acevedo

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STATEMENT
Court, First District, report that petitioner’s 2-1401 petition was dismissed with prejudice on September 29,
2010 as untimely and meritless, and that the case is currently on appeal in case No. 1-10-3221. The record
on appeal is due to be filed on June 6, 2011.
Based on its review of the original [1] and the amended [29] habeas petitions, it appears to the Court that all
(or at least most) of the claims in the amended petition are distinct from those that Petitioner included in the
original petition. (Compare claims “A-F” in the amended petition with claims “I-IX” in the original petition).

In essence, Petitioner has two requests pending before the Court: (1) a motion for leave to amend his petition
for a writ of habeas corpus, and (2) a request that the Court continue the stay in light of his currently-pending
appeal from the dismissal of the 2-1401 petition.
First, even construed liberally, Petitioner’s proposed amended habeas petition contains only claims A-F; it
does not refer to or incorporate the claims alleged in his original habeas petition. Usually, an amended
pleading that neither references nor adopts the original pleading supersedes the original complaint. See
Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1204-05 (7th Cir. 1998). So, if the Court granted Petitioner’s
request to file his amended habeas petition, the upshot would be that the nine claims in Petitioner’s original
habeas petition (to the extent that they are distinct from the claims in the amended petition) would be
abandoned. The Court finds it unlikely that Petitioner intends for his amended habeas petition to completely
supplant his original petition. More likely, Petitioner (who, again, is litigating pro se) intended [29] to be a
supplement to his original petition, and the Court will construe the filing as such. Respondent “does not
object to petitioner filing an amended habeas petition” ([31] at 3-4), either to supplement to or to supplant his
original pleading. The Court accordingly accepts Petitioner’s “Amended Petition For Habeas Corpus Relief”
[29] as a supplement to his original petition [1].
In light of the above analysis, Petitioner’s pending petition for habeas corpus is a “mixed petition” as it
contains both exhausted claims and the unexhausted Claims A-F that are pending review by the Illinois
appellate court in case No. 1-10-3221. Rhines v. Weber, 544 U.S. 269, 271 (2005). Under the circumstances
here (where dismissal of Petitioner’s petition would likely foreclose any chance of Petitioner obtaining
federal review due to the one-year statute of limitations under 28 U.S.C. § 2244(d)(1)), continuing the stay
entered by Judge Anderson is appropriate. See Rhines, 544 U.S. at 277-79. In fact, this is a course of action
approved of by Respondent. (See [31] at 5).
While the Court agrees that a stay is appropriate, the Court also is cognizant that the “timeless concerns
reflected in AEDPA” mandate that “[a] mixed petition should not be stayed indefinitely.” Rhines, 544 U.S.
at 278. In Rhines, the Supreme Court instructed district courts to “place reasonable time limits on a
petitioner’s trip to state court and back.” Id. (citing with approval Zarvela v. Artuz, 254 F.3d 374, 381 (2d
Cir. 2001) (“[District courts] should explicitly condition the stay on the prisoner’s pursuing state court
remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court
within a similarly brief interval, normally 30 days after state court exhaustion is completed”)). Here, as noted
above, the state proceedings are ongoing. Petitioner is directed to inform the Court within 30 days of the
completion of his 2-1401 proceedings.

06C4834 Adkins vs. Acevedo

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