Gilkey v. Anglin et al

Filing 12

WRITTEN Opinion entered by the Honorable Edmond E. Chang on 4/9/2012: Petitioner has submitted a properly completed application to proceed in forma pauperis [# 9 ], and has paid the statutoryfiling fee. The ifp application is granted. Petitioner has also responded to the order of 1/30/2012, ordering him to show cause as to why his petition for habeas relief should not be dismissed as untimely. Based on a review of the submission, Respondent is ordered to answer or otherwise plead by 05/09/12. Petitioner may reply to the Answer by 06/06/12. To track the case, as status hearing is set for 07/05/12 at 8:30 a.m. Petitioner's motion for appointment of counsel [# 4 ] is denied. On the Court's own motion, Illinois Attorney General Lisa Madigan is dismissed as a party. Mailed notice(vcf, )

Order Form (01/2005)

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

Edmond E. Chang

CASE NUMBER

12 C 0525

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

April 9, 2012

U.S. ex rel. Kenny Gilkey (#K-68971) v. Warden Anglin

DOCKET ENTRY TEXT:

Petitioner has submitted a properly completed application to proceed in forma pauperis [#9], and has paid the statutory
filing fee. The ifp application is granted. Petitioner has also responded to the order of 1/30/2012, ordering him to show cause
as to why his petition for habeas relief should not be dismissed as untimely. Based on a review of the submission,
Respondent is ordered to answer or otherwise plead by 05/09/12. Petitioner m ay reply to the Answer by 06/06/12. To track
the case, as status hearing is set for 07/05/12 at 8:30 a.m . Petitioner’s motion for appointment of counsel [#4] is denied.
On the Court’s own motion, Illinois Attorney General Lisa Madigan is dismissed as a party.

O [For further details see text below.]

Docketing to mail notices.

STATEMENT
On January 30, 2012, this Court ordered Petitioner to submit a properly completed and certified application
to proceed in forma pauperis, or pay the statutory filing fee, and to show cause as to why his petition for habeas
relief should not be dismissed as untimely. Petitioner has both submitted a properly completed and certified i.f.p.
application and paid the statutory filing fee. Petitioner’s motion to proceed i.f.p. is granted as he has made a
sufficient showing of indigence.
Petitioner has submitted a response indicating that he has little formal education, essentially arguing for
equitable tolling due to an ignorance of the law governing federal habeas actions. However, “[m]istakes of law
or ignorance of proper legal procedures are not extraordinary circumstances warranting invocation of the doctrine
of equitable tolling.” Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006). Accordingly, Petitioner is not entitled
to equitable tolling.
Petitioner also pleads that he had a motion for reduction of sentence pending between 2009 and January
4, 2012, and attaches supporting documentation, including correspondence from the Illinois State Supreme Court,
indicating that the mandate issued (denying Petitioner’s leave to appeal his post-conviction matter) on January 4,
2012. It is unclear from the materials submitted whether Petitioner’s petition is timely, but the materials submitted
sufficiently establish enough reason to orders Respondent to respond within 30 days of the date that this order is
entered on the Court’s docket. Additionally, Petitioner indicates that he has exhausted state court remedies with
respect to the claims raised in his federal habeas petition. This preliminary order to respond does not, of course,
preclude the State from making whatever timeliness, exhaustion, or default arguments it may wish to present. If
Respondent plans on seeking dismissal of the petition, then it should simply label its pleading as an “Answer to
the Petition,” See Rule 5 of the Rules Governing Habeas Corpus Cases, and makes its arguments therein, rather
than file a motion (Petitioner is incarcerated and would not be able to appear at a presentment hearing).
(CONTINUED)
AWL

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STATEMENT
Petitioner is instructed to file all future papers concerning this action with the Clerk of Court in care of the
Prisoner Correspondent. Petitioner must provide the Court with the original plus a judge’s copy (including a
complete copy of any exhibits) of every document filed. In addition, Petitioner must send an exact copy of any
Court filing to the Chief, Criminal Appeals Division, Attorney General’s Office, 100 West Randolph Street, 12th
Floor, Chicago, Illinois 60601. Every document filed by Petitioner must include a certificate of service stating to
whom exact copies were sent and the date of mailing. Any paper that is sent directly to the judge or that otherwise
fails to comply with these instructions may be disregarded by the Court or returned to Petitioner.
Petitioner’s motion for appointment of counsel is denied at this time as premature. Counsel must be
appointed in a habeas corpus proceeding only if an evidentiary hearing is needed or if interests of justice so require.
See Rule 8(c), Rules Governing Section 2254 Cases. Whether the interests of justice require appointment of
counsel in this case cannot be determined until after the Court has had an opportunity to review and consider
Respondent’s answer to the petition.
Finally, on the Court’s own motion, Illinois Attorney General Lisa Madigan is dismissed as a party. See
Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996), cert. denied, 520 U.S. 1171 (1997) (a state’s attorney general
is a proper party in a habeas petition only if the petitioner is not then confined); see also Rules 2(a) and (b) of Rules
Governing Section 2254 Cases. In this case, Petitioner is not challenging a future sentence, but rather his present
confinement. Therefore, Illinois’ Attorney General is not a proper party.

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