Jenkins v. Hodge et al

Filing 16

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 3/7/2014.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARCUS JENKINS,
Petitioner,
vs.
MARC HODGE, Warden,
Respondent.

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13 C 4262
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Marcus Jenkins, an Illinois inmate serving a 33-year sentence for first degree murder,
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Jenkins has moved to stay
the suit, Doc. 5, while the Warden opposes a stay and has moved to dismiss for failure to
exhaust, Doc. 12. Jenkins’s motion is granted and the Warden’s motion is denied.
Background
A jury convicted Jenkins of first degree murder, and the state trial court sentenced him to
fifty years in prison. People v. Jenkins, 776 N.E.2d 755, 757 (Ill. App. 2002) (reproduced at
Doc. 13-1). On direct appeal, Jenkins pressed three claims: (1) his inculpatory statements to
police were involuntary and should have been suppressed; (2) he was denied a fair trial due to
improper comments in the prosecutor’s closing argument; and (3) his sentence was excessive.
Doc. 13-2. The Appellate Court of Illinois affirmed. Jenkins, 776 N.E.2d at 762. Jenkins
pressed the same three claims in a petition for leave to appeal (“PLA”) filed with the Supreme
Court of Illinois. Doc. 13-4. The PLA was denied. People v. Jenkins, 787 N.E.2d 177 (Ill.
2003) (reproduced at Doc. 13-5).

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Jenkins then filed a pro se post-conviction petition in the state trial court. Doc. 13-21 at
13-72. The petition raised several claims, including: (1) Jenkins’s trial counsel was ineffective
for failing to interview certain witnesses and failing to file a written reconsideration motion
following sentencing; and (2) his appellate counsel was ineffective for failing to argue that
Jenkins’s trial counsel was ineffective for failing to investigate certain witnesses, to file a written
motion for reconsideration, and to argue that supplemental jury instructions were improper. Ibid.
The trial court dismissed the petition, id. at 74, and Jenkins appealed, id. at 75-78; Doc. 13-6.
The state appellate court vacated the dismissal and remanded, holding that Jenkins had stated
“the gist of a constitutional claim” that his counsel on direct appeal had been ineffective for
failing to include trial counsel’s motion to reconsider in the appellate record. People v. Jenkins,
No. 1-03-2856 (Ill. App. Apr. 7, 2005) (reproduced at Doc. 13-9).
On remand, Jenkins’s appointed counsel filed a supplemental post-conviction petition,
which added a claim that Jenkins’s trial counsel was ineffective for failing to properly argue that
Jenkins’s incriminating statements had been coerced. Doc. 13-23 at 29-48. The state trial court
granted Jenkins a new sentencing hearing on the ground that Jenkins’s appellate counsel had
been ineffective in preserving the appellate record, Doc. 13-34 at 100-01, and after further
proceedings, including another trip to the state appellate court, People v. Jenkins, No. 1-09-1377
(Ill. App. Oct. 27, 2010) (reproduced at Doc. 13-13), Jenkins’s sentence was ultimately reduced
to 33 years, Doc. 13-35 at 188-89. Jenkins appealed, and the appellate court affirmed. People v.
Jenkins, 2013 IL App (1st) 120905-U (Ill. App. May 8, 2013) (reproduced at Doc. 13-18).
Jenkins did not file a PLA in the Supreme Court of Illinois. Doc. 1 at 3; Doc. 12 at 3.
In April 2013, Jenkins moved the state trial court for leave to file a successive postconviction petition raising a new claim, i.e., that his trial counsel was ineffective for failing to

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request a second degree murder jury instruction. Doc. 1 at 6-7; Doc. 5 at 1. Two months later,
Jenkins filed the present federal habeas petition, which presses only that claim. Doc. 1. Jenkins
simultaneously moved to stay and hold in abeyance the federal petition so that he may attempt to
exhaust his new ineffective assistance claim in state court. Doc. 5. As noted above, the Warden
has opposed a stay and moved to dismiss the petition for failure to exhaust. Doc. 12. In the
meantime, the state trial court denied Jenkins’s motion for leave to file a successive postconviction petition, and Jenkins appealed to the state appellate court. Doc. 14 at 2.
Discussion
As a general rule, a federal habeas petition should be dismissed if the petitioner has not
exhausted available state court remedies as to any of his federal claims. See Coleman v.
Thompson, 501 U.S. 722, 731 (1991); Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004); 28
U.S.C. § 2254(b). Jenkins and the Warden agree that Jenkins has not exhausted his state court
remedies for the habeas petition’s sole claim. Doc. 12 at 5; Doc. 14 at 1. Jenkins argues that his
petition should be stayed so that he can exhaust that claim in state court, lest the one-year statute
of limitations imposed by 28 U.S.C. § 2244(d)(1) expire before the state court proceedings
conclude. Doc. 14 at 2-3.
“A prisoner seeking state postconviction relief might avoid [his federal petition becoming
time-barred] by filing a ‘protective’ petition in federal court and asking the federal court to stay
and abey the federal habeas proceedings until state remedies are exhausted.” Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005); see also Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir.
2006) (“[The Seventh Circuit has] gone so far as to suggest that it would be wise for a petitioner
to file in both state and federal court simultaneously, particularly where there is some procedural
uncertainty about the state court post-conviction proceeding, and then ask the district court to

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stay the federal case until the state case concludes to ensure that she does not miss the one-year
deadline”). In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that federal
district courts have the discretion to stay a habeas petition where there is “good cause for the
petitioner’s failure to exhaust his claims first in state court” and the unexhausted claims are not
“plainly meritless.” Id. at 277; see also Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008)
(“[F]or nearly a decade, we have informed the district courts that whenever good cause is shown
and the claims are not plainly meritless, stay and abeyance is the preferred course of action.”).
The Warden does not argue that Jenkins’s habeas claim is meritless, thus forfeiting the
point for purposes of the present motions. See G&S Holdings LLC v. Cont’l Cas. Co., 697 F.3d
534, 538 (7th Cir. 2012) (“We have repeatedly held that a party waives an argument by failing to
make it before the district court.”); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011).
Nor does the Warden contend that a stay is inappropriate because the petition does not include
any unexhausted claims. The Warden does contend, however, that Jenkins “has not shown good
cause for his failure to exhaust his claim in state court.” Doc. 12 at 6. The court disagrees.
The one-year statute of limitations for filing a federal habeas petition is tolled while “a
properly filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). However, a motion for leave
to file a state post-conviction petition, which is what Jenkins has filed in state court, is not a
“properly filed” application for post-conviction relief. See Martinez v. Jones, 556 F.3d 637, 638
(7th Cir. 2009) (“where state law requires pre-filing authorization—such as an application for
permission to file a successive petition—simply taking steps to fulfill this requirement does not
toll the statute of limitations”); Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000); Tinker v.
Hanks, 172 F.3d 990, 991 (7th Cir. 1999), vacated, 531 U.S. 987 (2000), reinstated, 255 F.3d

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444 (7th Cir. 2001). Thus, the period during which a motion for leave to file a successive postconviction petition is pending in Illinois state court does not toll the limitations period unless
leave is granted. See Martinez, 556 F.3d at 639.
The parties agree that Jenkins’s conviction became final for purposes of § 2244(d)(1) on
June 12, 2013. Doc. 12 at 7; Doc. 14 at 2. Jenkins thus had until June 12, 2014, to file a timely
habeas petition. On September 6, 2013, the state trial court denied Jenkins’s motion for leave to
file a successive post-conviction petition—the petition seeking to raise the particular ineffective
assistance claim he presses in federal court—and Jenkins appealed that decision to the state
appellate court. Doc. 14 at 2. Jenkins argues that “the time it will take the appellate court to rule
on [his] case will extend far beyond the June 2014 deadline to file his Habeas Petition,” and
asserts that if this court dismisses his habeas petition and if his state court appeal does not
succeed, then the one-year limitations period will have expired by the time the state court
proceedings conclude. Ibid. Under these circumstances, good cause exists to stay Jenkins’s
habeas petition. See Tucker, 538 F.3d at 735 (“When a district court’s order dismissing a
petition without prejudice will ‘effectively end any chance at federal habeas review,’ that is,
when there is a substantial risk that it comes too late for the prisoner to re-file, district courts are
to consider whether a stay might be more appropriate than an outright dismissal, regardless of
whether the petitioner has made such a request.”); Dolis, 454 F.3d at 723 (reversing the district
court’s dismissal of a habeas petition for failure to exhaust and remanding for consideration of a
stay, reasoning that “[t]he situation that Dolis faces, in which a new federal petition would be
barred as untimely, seems to us to be just such a ‘special circumstance’ where a dismissal
without prejudice is effectively final”); Tinker, 172 F.3d at 991 (“The pendency of [a prisoner’s]
application for leave to file a state postconviction proceeding will not prevent them from filing

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their federal habeas corpus action within one year, since any such action can, in the discretion of
the district judge, be stayed pending the state appellate court’s decision on the prisoner’s
application.”); Post v. Gilmore, 111 F.3d 556, 557 (7th Cir. 1997) (holding that “the collateral
attack should be stayed rather than dismissed” where dismissal “creates a substantial risk that
refiling after the completion of the [state proceedings] will be untimely”). The Warden weakly
disputes Jenkins’s premise that the state court appeal will not conclude until after June 2014,
Doc. 12 at 7, but he of course can only speculate that the appeal will be decided by then, leaving
an unacceptable risk that it will not be and that, if the habeas petition is dismissed, Jenkins will
be barred by § 2244(d)(1) from re-filing. Cf. Tucker, 538 F.3d at 735 (holding that a stay was
not warranted because the habeas petitioner had five months to file his first state post-conviction
petition, where there was no indication that the state court would reject the post-conviction filing
on any procedural ground, and where the state court in fact resolved the post-conviction petition
on the merits).
The Warden argues that a stay should nonetheless be denied because the Illinois courts
are likely to find that Jenkins forfeited the ineffective assistance claim he raises here. Doc. 12 at
6. It is true that the Illinois courts may hold that Jenkins forfeited that claim, and it is also true
that such a holding would result in Jenkins having procedurally defaulted the claim for purposes
of federal habeas review. However, Jenkins would retain the ability to argue that the procedural
default should be excused under the cause-and-prejudice or fundamental-miscarriage-of-justice
exceptions. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Lewis v. Sternes, 390 F.3d 1019,
1026 (7th Cir. 2004). Those are steep hills to climb, but the court is in no position to pre-judge
arguments that Jenkins has yet to make under circumstances that have yet to arise.

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Conclusion
For these reasons, Jenkins’s motion to stay is granted and the Warden’s motion to dismiss
is denied. The habeas petition is stayed pending the conclusion of the state court proceedings
regarding Jenkins’s motion for leave to file a successive post-conviction. The Warden shall
inform the court of any rulings in the pending state court appeal, and shall in all events file a
status report by June 10, 2014.

March 7, 2014

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United States District Judge

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