Smith v. Godinez et al
Filing
6
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 10/5/2011.(mjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MILTON SMITH #A81091,
Petitioner,
v.
DIRECTOR S. A. GODINEZ,
Respondent.
)
)
)
)
)
)
)
)
)
No.
11 C 6912
MEMORANDUM OPINION AND ORDER
Milton Smith (“Smith”) has tendered a 28 U.S.C. §22541
Petition for Writ of Habeas Corpus (“Petition”), challenging his
1983 conviction on two murder charges on which he is currently
serving a 60-year custodial sentence.
Although Smith has not
provided all of the requisite information for the normal
threshold determination as to the potential viability of a
federal habeas claim on his part, what he has tendered suffices
to exclude him from any relief in this District Court.
First, however, there is the matter of two documents that
have accompanied the Petition:
Smith’s In Forma Pauperis
Application (“Application”) and his Motion for Appointment of
Counsel (“Motion”), both submitted on Clerk’s-Office-supplied
forms.
As for in forma pauperis status, Smith is obviously
unaware that the fee for a Section 2254 petition is the modest
sum of $5 rather than a full filing fee, so that he can certainly
1
All further references to Title 28’s provisions will
simply take the form “Section--.”
handle such a payment.
Hence the Application is denied.
As for
the Motion, the further rulings in this memorandum opinion and
order render it moot.
Given the age of Smith’s conviction and sentencing, it would
be extraordinarily surprising if some or all of his current
claims were not barred by the one-year limitation period
prescribed by Section 2244(d).
And that is certainly true as to
the second of Smith’s current contentions, which he summarizes in
this title covering that section of his Petition:
II. Milton Smith’s Mittimus Erroneously Reflects Two
Convictions For Murder and Should Be Corrected To
Reflect Only One Conviction For First Degree Murder
Because There Was Only One Decedent.
In fact, more than one reason calls for rejection of that claim,
for Smith’s argument there is based solely on Illinois state law
and not on federal constitutional considerations.2
It is equally clear that the third of Smith’s asserted
grounds is also fatally flawed in federal habeas terms--here is
the caption for that section of the Petition:
III. THE APPELLATE COURT ERRED IN DENYING SMITH’S PROSE MOTION FOR APPOINTMENT OF BLUHM LEGAL CLINIC
2
Indeed, just as is explained later regarding Smith’s
first asserted ground, all of the Petition’s section that bears
the just-quoted title and is followed by two pages of argument
was lifted bodily from his state court appellate brief
challenging the dismissal of his second and most recent state
post-conviction proceeding. Every case cited there is an
Illinois Appellate Court or Supreme Court decision, and there is
not even a whisper of any purported federal constitutional
violation.
2
NORTHWESTERN UNIVERSITY SCHOOL OF LAW TO REPLACE THE
OFFICE OF THE STATE APPELLATE DEFENDER WHERE ATTORNEY
PATRICIA UNSINN, ATTORNEY ROBERT HIRSCHHORN, AND
ATTORNEY CAROLYN R. KLARQUIST ALL TESTIFIED THAT THEIR
OFFICE HAS SIXTY-FOUR FULL TIME AND NINE PART TIME
ASSISTANT DEFENDERS WORKING ON CASES AND A BACKLOG OF
APPROXIMATELY ONE-THOUSAND FOUR HUNDRED AND NINTY [sic]
THREE UNBRIEFED CASES AT THE TIME SMITH’S BRIEF WAS
DUE. THEY REQUESTED AND RECEIVED SEVERAL CONTINUANCES.
As the ensuing discussion makes plain, Smith’s core claim is that
he was provided ineffective assistance by appellate counsel in
support of his pro-se-initiated state post-conviction proceeding.
But there are two short--and fully dispositive--answers to any
such contention:
1.
There is no federal constitutional right to counsel
in post-conviction proceedings, as contrasted with trial and
direct appeal proceedings--as our Court of Appeals stated
succinctly earlier this year in Lavin v. Rednour, 641 F.3d
830, 833 (7th Cir. 2011):
However, prisoners do not have the right to
counsel on collateral review. See Pennsylvania v.
Finley, 481 U.S. 551 (1987).
2.
Relatedly the Supreme Court taught fully three
decades ago in Polk County v. Dodson, 454 U.S. 312 (1981)
that a public defender does not act under color of state law
(and hence is invulnerable to a claim of federal
constitutional deprivation) when performing a lawyer’s
traditional functions as counsel to a defendant in a
criminal proceeding.
3
So Smith’s remedy (if any) against the appellate defenders for
any purported deficiencies in their representation is a state
court malpractice action, not a Section 2254 petition.
And that
means that Smith’s third ground for possible relief goes down the
tubes as well.
That then leaves only Smith’s first contention, which he
summarizes with this caption:
I. The Trial Court Erred in Denying Smith’s Pro Se
Motion For Forensic Testing Under 725 ILCS 5/116-3
Where: (1) Identity Was the Central Issue in His Case;
(2) A Sufficient Chain Of Custody Was Established; And
(3) Articles of Smith’s Clothing, Which Have the
Potential to Produce New, Noncumulative, Evidence
Material to Milton Smith’s Claim of Actual Innocence,
Were Never Tested For DNA Evidence At Trial.
But as with Smith’s second contention (see n.2), that Argument
section and the Statement of Facts that precedes it have plainly
been lifted intact from his state court appeal from the denial of
his post-conviction pro se motion (filed in November 2007) for
scientific testing under a then-recent state statute, 725 ILCS
5/116-3.
Thus the Statement of Facts concludes by referring to
the allowance of a late notice of appeal on August 26, 2008, and
the Argument section repeatedly refers to what “this Court”
(clearly the Illinois Appellate Court, not this federal District
Court)3 should do--with repeated references to Illinois Appellate
3
At page 12 the Argument states that “this Court should
remand this matter for further proceedings consistent with
section 5/116-3,” and that “[t]his Court should apply de novo
review to the trial court’s denial of Smith’s motion for DNA
4
decisions and no federal authorities at all.
In short, Smith’s attempted first ground advances only a
state law claim, again without even a hint of a federal
constitutional claim.
That defeats his current effort on more
than one level, so that he has failed all down the line.
Conclusion
This Court’s preliminary review of the Petition under Rule 4
of the Rules Governing Section 2254 Cases in the United States
District Courts has clearly revealed “that the petitioner is not
entitled to relief in the district court” (id.), so that “the
judge must dismiss the petition and direct the clerk to notify
the petitioner.”
This Court so orders--both the Petition and
this action are dismissed with prejudice.4
Date:
October 5, 2011
________________________________________
Milton I. Shadur
Senior United States District Judge
testing under section 116-3”; and in the same way, page 13
repeats the “this Court should remand” language and page 19 again
reiterates the identical “this Court should remand this matter”
language.
4
As stated earlier, with the Application having been
denied, Smith must cause the trust fund officer at Tamms
Correctional Center, where he is now confined, to remit the sum
of $5, with a reference to this case’s caption and case number,
to the “Clerk of Court” at this address:
219 South Dearborn Street
Chicago IL 60604
Attention: Fiscal Department
And as also stated earlier, the Motion is denied as moot.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?