Walker v. People of State of Illinois

Filing 11

MINUTE entry before Honorable Joan H. Lefkow: Pursuant to the amended petition, the clerk is directed to substitute Warden Guy Pierce as respondent in place of 'the People of the State of Illinois.' The respondent is ordered to answer t he amended petition or otherwise plead within twenty-one days of the date of this order. The petitioner's previously filed motion for an extension of time [# 7 ] is denied as moot. The petitioner's motion for attorney representation [# 4 ] is denied as premature. Mailed notice. [For further details see minute order.] (ea, )

Order Form (01/2005)

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

JOAN H. LEFKOW

CASE NUMBER

13 C 3534

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

July 12, 2013

United States ex rel. James Earl Walker (#R-02343) vs. Warden Guy Pierce

DOCKET ENTRY TEXT:

Pursuant to the amended petition, the clerk is directed to substitute Warden Guy Pierce as respondent in place
of “the People of the State of Illinois.” The respondent is ordered to answer the amended petition or otherwise
plead within twenty-one days of the date of this order. The petitioner’s previously filed motion for an extension
of time [#7] is denied as moot. The petitioner’s motion for attorney representation [#4] is denied as premature.

O [For further details see text below.]

Docketing to mail notices.

STATEMENT
James Earl Walker, an Illinois state prisoner, has brought this pro se habeas corpus action pursuant to 28
U.S.C. § 2254. The petitioner challenges, on multiple grounds, his convictions for aggravated criminal sexual
assault and aggravated kidnaping.
By Minute Order of May 21, 2013, the court granted the petitioner’s motion for leave to proceed in forma
pauperis but ordered him to show good cause in writing why his petition for a writ of habeas corpus should not
be dismissed as untimely. In response, the petitioner asserts that he is entitled to equitable tolling on account of
“cognitive disabilities;” furthermore, the amended petition reflects that additional state post-conviction
proceedings not noted in the original petition were pending during the time period in question.
The court does not, at this time, have enough information to determine whether the petitioner’s efforts
in state court to set aside his conviction were “properly filed” for purposes of 28 U.S.C. § 2244(d)(2). Moreover,
untimeliness is an affirmative defense that may be waived if not raised by the respondent. See, e.g., Allen v.
Siebert, 552 U.S. 3, 6-7 (2007) (citations omitted); Grigsby v. Cotton, 456 F.3d 727, 731 (7th Cir. 2006).
Accordingly, the respondent is ordered to answer the amended petition or otherwise plead within twenty-one days
of the date this order is entered on the clerk’s docket. This preliminary order to respond does not, of course,
(CONTINUED)
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STATEMENT (continued)
preclude the State from making whatever arguments it may wish to present regarding exhaustion, timeliness,
procedural default, or any other defense.
The petitioner is instructed to file all future papers concerning this action with the Clerk of Court in care
of the Prisoner Correspondent. The 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, the 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 the 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 the
petitioner.
Finally, the petitioner’s motion for attorney representation is denied at this time as premature. Counsel must
be recruited 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 attorney
assistance in this case cannot be determined until after the court has had an opportunity to review and consider the
respondent’s answer to the amended petition.

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