Smith v. Godinez et al
Filing
9
Statement as to Certificate of Appealability. Signed by the Honorable Milton I. Shadur on 11/9/2011:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MILTON SMITH #A81091,
Petitioner,
v.
DIRECTOR S.A. GODINEZ,
Respondent.
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No. 11 C 6912
STATEMENT AS TO CERTIFICATE OF APPEALABILITY
This Court’s October 5, 2011 memorandum opinion and order
(“Opinion”) explained in detail the reasons for denial and
dismissal of the pro se 28 U.S.C. § 2254 (“Section 2254”) Petition
for Writ of Habeas Corpus (“Petition”) by which Milton Smith
(“Smith”) has challenged his 1983 conviction on two murder charges
on which he is currently serving a 60-year custodial sentence.
Now Smith has filed a Notice of Appeal on November 7, and this
Court has received the judge’s copy of his contemporaneous handprinted Petitioner’s Request for Certificate of Appealability.
Before this opinion turns to consideration of that subject,
however, something needs to be said on an issue as to which no
information has been provided: Either Smith’s payment of the
required $455 in appellate filing fees or, as would seem more
likely, his motion for in forma pauperis status coupled with the
printout of transactions in Smith’s prison trust fund account
required by 28 U.S.C. § 1915.
Smith is notified that unless he
addresses that subject of filing fees in an appropriate manner on
or before November 21, 2011, this Court would be constrained to
report that delinquency to the Court of Appeals so it may
determine the appropriate course of action.
That said, this opinion turns to Smith’s designated subject
matter of his motion.
Although he has accurately summarized what
his current filing characterizes as the “Legal Standards for
Certificate of Appealability” (“COA”), his ensuing substantive
discussion misses entirely the reasons that his Petition did not
conform to those standards.
As the risk of being repetitive, this
Court will briefly recapitulate why that is so.
First, as to the state law requirement of a DNA sample (see
Argument at 2-31 ), Smith’s problem is that his argument before the
state courts was advanced under state law and not federal law (as
Opinion at 4 pointed out, the Petition simply reprinted a section
of the brief on Smith’s state court appeal from the denial of his
post-conviction pro se motion, which referred only to asserted
state-based rights).
Thus Smith’s attempt to invoke federal
habeas relief runs afoul of the fundamental principle set out in
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999):
Because the exhaustion doctrine is designed to give the state
courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to
the federal courts, we conclude that state prisoners must
give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State’s established appellate review process.
1
Citations to Smith’s “Argument at --“ refer to the
discussion in Smith’s current COA request.
2
Second, as for what Smith’s current request refers to as
“Ineffective Assistant of Counsel on Appeal” (see Argument at 34), once again he has given no heed to the Opinion’s basis for
rejecting that asserted ground for federal habeas relief.
As
Opinion at 3-4 explained, a petitioner’s complaint that his
federal constitutional rights were infringed by assertedly
deficient performance on the part of his or her appellate lawyer
is unavailable for Section 2254 purposes where the appellate
counsel complained of had handled petitioner’s state postconviction proceedings and not the state court direct appeal.
In
that regard, Opinion at 3 adverted to Lavin v. Rednour, 641 F.3d,
830, 833 (7th Cir. 2011) and Polk County v. Dodson, 454 U.S. 312
(1981) as exemplary of two independent grounds for rejecting
Smith’s efforts. 2
Accordingly, this Court holds that no COA should issue as to
Smith’s current appeal.
Smith is advised that he may tender the
same issue to our Court of Appeals for its view of the subject.
_____________________________________
Milton I. Shadur
Senior United States District Judge
November 9, 2011
2
Because the Argument did not mention the other
purported ground for relief that Smith had originally set out in
his Petition, this Court assumes that he has recognized its
untimeliness (see Opinion at 3).
3
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