Betts v. Godinez et al

Filing 6

WRITTEN Opinion entered by the Honorable Samuel Der-Yeghiayan on 5/8/2012: For the reasons stated below, Petitioner's motion for stay and abeyance of Habeas Corpus 4 is denied. Petitioner's motion for leave to file a memorandum in supp ort of his Petition 5 is granted. Petitioner's motion to file Habeas Corpus petition under previously paid filing fee 3 is denied. Petitioner brought a new action in filing the instant Petition, and it is incumbent on him to pay a new fil ing fee if he wants to proceed in this new action. Petitioner is given until June 7, 2012, to pay the filing fee. Petitioner is warned that failure to pay the filing fee by June 7, 2012, will result in the dismissal of the instant action. [ For further details see written opinion.] Mailed notice (tg, )

Order Form (01/2005)

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

Samuel Der-Yeghiayan

CASE NUMBER

12 C 2711

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/8/2012

Kevin Betts (N–74536) vs. Salvador A Godinez

DOCKET ENTRY TEXT

For the reasons stated below, Petitioner’s motion for stay and abeyance of Habeas Corpus [4] is denied.
Petitioner’s motion for leave to file a memorandum in support of his Petition [5] is granted. Petitioner’s
motion to file Habeas Corpus petition under previously paid filing fee [3] is denied. Petitioner brought a new
action in filing the instant Petition, and it is incumbent on him to pay a new filing fee if he wants to proceed
in this new action. Petitioner is given until June 7, 2012, to pay the filing fee. Petitioner is warned that
failure to pay the filing fee by June 7, 2012, will result in the dismissal of the instant action.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
This matter is before the court on Petitioner Kevin Betts’ (Betts) pro se “Motion for Stay and
Abeyance of Habeas Corpus.” (Mot. St. 1). Betts previously filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in case number 11 C 7197. In that case, Betts filed a motion to withdraw the
habeas petition so that he could exhaust his state court remedies as to certain claims. On January 12, 2012,
the court granted the motion to withdraw the habeas petition and dismissed the habeas petition without
prejudice. On April 12, 2012, Betts filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (Petition). Betts indicates in the Petition that he filed a second post-conviction petition in state court,
which was denied by the trial court. (Pet. 3 1/2). Betts indicates that his appeal on the denial of his second
post-conviction petition is still pending. (Pet. 3 1/2). Thus, Betts has still not exhausted his state court
remedies on all issues presented in the Petition. Betts argues, however, that he has exhausted his state court
remedies as to some of his claims, and he requests that the court stay the instant action until he has exhausted
all his state court remedies in accordance with Rhines v. Weber, 544 U.S. 269 (2005).
In Rhines v. Weber, the Supreme Court held that “a federal district court has discretion to stay [a]
mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance,
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STATEMENT
and then to return to federal court for review of his perfected petition.” Dolis v. Chambers, 454 F.3d 721,
724 (7th Cir. 2006)(internal quotations omitted)(quoting Rhines, 544 U.S. at 271-72). However, the Supreme
Court in Rhines emphasized that “stay and abeyance should be available only in limited circumstances. . . .”
544 U.S. at 277. The Supreme Court in Rhines further indicated that “stay and abeyance is only appropriate
when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first
in state court” and that “even if a petitioner had good cause for that failure, the district court would abuse its
discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.” Id.
In the instant action, Betts argues that he failed to exhaust all his claims on post-conviction petition
review because of “deficient [and] unreasonable assistance of post conviction appellate counsel.” (Mot. Stay
3). Betts argues his post-conviction attorney did not present all the claims that Betts wanted presented in his
appellate brief. Betts contends that he told his counsel on appeal for his post-conviction petition to argue: (1)
ineffective assistance of counsel by appellate counsel for failure to raise ineffective assistance of counsel by
trial counsel for trial counsel’s failure to object to comments made by the prosecutor during trial, and (2)
ineffective assistance of counsel for “squandering Betts PLA to the Illinois Supreme Court. . . .” (Mot. Stay
5-6). Betts has not shown good cause for failing to exhaust such claims. Based upon the general principle
that an “attorney is the prisoner’s agent, and under well-settled principles of agency law, the principal bears
the risk of negligent conduct on the part of his agent,” a petitioner is generally bound by the actions of his
post-conviction attorney. Maples v. Thomas, 132 S.Ct. 912, 922-23 (2012)(quotations omitted)(quoting
Coleman v. Thompson, 501 U.S. 722 (1991). In the first instance, Betts has not shown any of his counsel in
his criminal case to have been negligent. Even if Betts had done so, Betts is not entitled under the law to
present a second round of arguments merely because Betts disagreed with his post-conviction counsel’s
tactical decisions. Betts indicates that his post-conviction attorney chose not to present certain arguments
proposed by Betts, his client. Betts’ post-conviction counsel was entitled to make such decisions within the
scope of his professional discretion. Betts has not shown that this case is a situation where his postconviction attorney “abandon[ed] his client without notice,” and failed to act as Betts’ representative. Id. at
922-23. Although Betts claims he was appointed counsel, he was not entitled to appointed post-conviction
counsel. See also Lavin v. Rednour, 641 F.3d 830, 833 (7th Cir. 2011)(stating that “prisoners do not have the
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STATEMENT
right to counsel on collateral review”). The mere fact that Betts disagreed with his post-conviction counsel’s
advice and did not prevail on his claims before the Illinois appellate court does not provide a basis to stay the
instant action. The Seventh Circuit has recognized that while courts sometimes “recruit counsel not only to
advocate effectively on behalf of the appellant, but to aid the court” on collateral review, “appellants on
collateral review may dismiss counsel and represent themselves if they disagree strongly enough with
counsel’s professional opinion.” Id.
It is also clear that the claims that Betts seeks to exhaust during the proposed stay are plainly
meritless. As the Supreme Court stated in Rhines, a court should stay a habeas action only in limited
instances since “[s]taying a federal habeas petition frustrates AEDPA’s objective of encouraging finality by
allowing a petitioner to delay the resolution of the federal proceedings,” and “[i]t also undermines AEDPA’s
goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust all his
claims in state court prior to filing his federal petition.” 544 U.S. at 277. Betts has not shown that the instant
action presents any exceptional circumstances, as articulated in Rhines, that would warrant staying the
proceedings, and therefore, the motion to stay is denied.
Betts also moves for leave to file a memorandum in support of his Petition. That motion is granted.
Finally, Betts moves for leave to allow him to re-file the instant Petition based on the filing fee in case
number 11 C 7197. However, Betts chose to prematurely bring the prior habeas petition in case number 11 C
7197 and chose to seek a dismissal of that action because he realized he needed to exhaust his state court
remedies. That action was not stayed, it was dismissed by Betts. Subsequently, Betts brought a new action
in filing the instant Petition, and it is incumbent on him to pay a new filing fee if he wants to proceed in this
new action. Betts is given until June 7, 2012, to pay the filing fee. Betts is warned that failure to pay the
filing fee by June 7, 2012, will result in the dismissal of the instant action.

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