Sanchez v. Roekman, et al.

Filing 14

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 2/9/2015. Mailed notice(gel, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Juan Sanchez,
Petitioner,
v.
Warden Roeckeman,
Respondent.

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Case No. 14 C 6076
Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court upon Petitioner’s Petition for Writ of
Habeas Corpus [1] and the Status Report [12] filed herein by Respondent, and the
Court being otherwise fully advised.
Petitioner Juan Sanchez (a/k/a Juan Sanchez-Alvarado), an Illinois state
prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges his convictions for predatory criminal sexual assault
of a child on the grounds that: (1) he was denied effective assistance of counsel, (2)
he was denied compulsory process and (3) he has new evidence, in the form of
information from the Centers for Disease Control and Prevention (“CDC”), which
allegedly proves his innocence. At this point in the proceedings, Petitioner has paid
the filing fee [7], but he concedes that he has not yet exhausted state court remedies
with respect to all of the claims raised in his Petition for Writ of Habeas Corpus.
Specifically, Petitioner indicates that he has a pending post-conviction petition
contending that the information from the CDC proves his innocence. This issue has
not been presented to the Illinois Supreme Court. [1] at 3, 6.
Under well-established law, an inmate who challenges a state conviction
under 28 U.S.C. § 2254 must first exhaust his state court remedies as to all his
claims. Rhines v. Weber, 544 U.S. 269, 273-74 (2005); Rose v. Lundy, 455 U.S. 509
(1982). Under the exhaustion rule, the Court has certain discretion to dismiss or
stay a “mixed petition” containing exhausted and unexhausted claims. Rhines, 544
U.S. at 277-78.
Accordingly, it is hereby ORDERED as follows:

Petitioner is directed to inform the Court within 21 days whether he wishes
to (1) drop his unexhausted claim and proceed with his exhausted claims only, (2)
have this case dismissed without prejudice or (3) have this case stayed pending the
exhaustion of his unexhausted claim.
If Petitioner decides to drop his unexhausted claim, he must submit an
amended Petition for Writ of Habeas Corpus on the Court’s form omitting the
unexhausted claim within 21 days. If Petitioner submits an amended Petition for
Writ of Habeas Corpus dropping the unexhausted claim, the Court will order
Respondent to answer or otherwise plead. Petitioner is forewarned that if he should
decide to forgo any unexhausted claim at this juncture, rules against second or
successive habeas petitions may preclude him from raising those claims at a later
date. See 28 U.S.C. § 2244(b)(3)(A).
If Petitioner’s case is dismissed, Petitioner is forewarned that he may be later
precluded from bringing a second Petition for Writ of Habeas Corpus based on the
applicable statute of limitations. See 28 U.S.C. 2244(d)(1).
If Petitioner seeks to have this case stayed, he must file with the Court
within 21 days a document establishing: (1) good cause for Petitioner’s failure to
have previously exhausted his unexhausted claim; and (2) the basis to find that
such unexhausted claim is potentially meritorious and that Petitioner is not
engaging in intentionally dilatory litigation tactics. The Court then will consider
whether a stay is appropriate and how long such a stay (if any) should last. The
Clerk is directed to provide Petitioner with an amended Petition for Writ of Habeas
Corpus and instructions.
Petitioner’s motion for attorney representation [4] is denied without prejudice
at this time as premature. Counsel must be sought 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.
Dated: February 9, 2015
Entered:

____________________________
John Robert Blakey
United States District Court Judge

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