Nitz v. Anglin et al

Filing 19

WRITTEN Opinion entered by the Honorable Rebecca R. Pallmeyer on 7/12/2011. Respondent's motion to dismiss 10 is granted in part and denied in part without prejudice; Petitioner's motion to oppose that motion 14 is denied. Petitioner& #039;s request for leave to respond 18 is granted. His motion to voluntarily withdraw 15 is granted as follows: Petitioner is directed to advise the court within twenty-one days whether he wishes to: (a) drop his non-exhausted claims and proceed only on his claim that the sentence imposed violated the Eighth Amendment, or (b) have this case stayed pending complete exhaustion of state court remedies as to all claims raised in his federal habeas petition. If Petitioner should decide to abandon his non-exhausted claims and proceed with this case, he must submit an amended habeas petition (plus a judge's copy). [For further details see written opinion.] Mailed notice(ca, ).

Order Form (01/2005)

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

REBECCA R. PALLMEYER

CASE NUMBER

11 C 1904

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

July 12, 2011

U.S. ex rel. Herman Nitz (#N-08438) vs. Keith O. Anglin, et al.

DOCKET ENTRY TEXT:

Respondent’s motion to dismiss [10] is granted in part and denied in part without prejudice; Petitioner’s motion
to oppose that motion [14] is denied. Petitioner’s request for leave to respond [18] is granted. His motion to
voluntarily withdraw [15] is granted as follows: Petitioner is directed to advise the court within twenty-one days
whether he wishes to: (a) drop his non-exhausted claims and proceed only on his claim that the sentence imposed
violated the Eighth Amendment, or (b) have this case stayed pending complete exhaustion of state court remedies
as to all claims raised in his federal habeas petition. If Petitioner should decide to abandon his non-exhausted
claims and proceed with this case, he must submit an amended habeas petition (plus a judge’s copy).
O [For further details see text below.]

Docketing to mail notices.

STATEMENT
Herman Nitz, a state prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges his 2008 theft conviction on the grounds that: (1) prosecutors failed to disclose
exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) trial and appellate counsel were
ineffective; (3) the trial court imposed an excessive bail amount; and (4) the “double enhancement” of
Petitioner’s sentence was improper. This matter is before the court on consideration of Respondent’s motion to
dismiss the petition for failure of Petitioner to exhaust state court remedies prior to seeking federal habeas review
[10].
An inmate who seeks to challenge a state conviction under 28 U.S.C. § 2254 must first exhaust his state
court remedies as to all his claims. See Rose v. Lundy, 455 U.S. 509 (1982). A federal court may not grant an
application for a writ of habeas corpus from a prisoner being held in state custody unless he has exhausted his
available state remedies prior to seeking federal habeas relief. Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir.
2009) (citing 28 U.S.C. § 2254(b)(1)(A)). A habeas petitioner must fairly present each constitutional claim to
the state courts through one complete round of state-court review. Id., citing Malone v. Walls, 538 F.3d 744, 753
(7th Cir. 2008).
In the case at bar, Petitioner specifically stated on his petition that “all grounds raised in this petition [had]
been presented to the highest court having jurisdiction.” (See Petition, p. 6., ¶ 2.) Petitioner now asserts that he
was “confused” at the time he drafted the petition and admits that he did not present all claims to the highest
(CONTINUED)

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STATEMENT (continued)
court; he also concedes that he neglected to mention certain avenues of relief he had pursued in state court.
Petitioner seeks either to be allowed to proceed on his Brady claim (which does not appear to have been exhausted)
or to voluntarily withdraw his petition, without prejudice, while he completes the state exhaustion process. In its
reply brief, the State, in turn, argues that Petitioner has procedurally defaulted on most of his federal claims because
it is now too late to seek state review. A successive post-conviction petition was evidently dismissed at the trial
court level but is currently on appeal.
Petitioner appears to have exhausted just one claim: that the court imposed a disproportionate sentence
(twelve years) for the crime of theft from a house of worship. The exhaustion rule requires a district court to
dismiss a “mixed petition” containing both exhausted and unexhausted claims, “leaving Petitioner with the choice
of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only
exhausted claims to the district court.” Rose, 455 U.S. at 510; see also Carroll v. Austin, No. 07 C 2547, WL
4294737, *2 (N.D. Ill. Nov. 28, 2007). Petitioner is advised that if he should decide simply to drop any nonexhausted claims at this juncture, the abuse of the writ doctrine may bar a second or successive habeas petition
raising those claims at a later date. See 28 U.S.C. § 2244; Rule 9 of the Rules Governing Section 2254 Cases. In
other words, convicted persons generally have only one opportunity to challenge their conviction in federal court.
In sum, Petitioner is directed to inform the court within twenty-one days whether he wishes to: (1) drop
all non-exhausted claims and proceed only on his excessive sentence claim (in that event, Petitioner should file an
amended habeas petition on the court’s form); or (2) seek a stay of this case pending exhaustion of state court
remedies as to any claims not previously presented to the state courts.
As final concerns, Petitioner, a highly experienced litigator, is reminded of basic filing requirements: he
must (a) provide the court with the original plus a complete judge’s copy of every document filed, including any
exhibits, and (b) include a certificate of service with every court filing showing that a copy was mailed to opposing
counsel. Petitioner is additionally cautioned to be completely truthful and accurate in his court filings. Rule 11
of the Federal Rules of Civil Procedures provides for the imposition of sanctions for making false representations
to the court.

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