Scurlock v. Brookhart et al
MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 9/15/2020.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DEANNA BROOKHART, Warden,
19 C 2174
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Aaron Scurlock, a state prisoner, petitions for a writ of habeas corpus under 28 U.S.C.
§ 2254. Doc. 1. The Warden seeks dismissal of the petition for failure to exhaust state remedies.
Doc. 31 at 18-19. Because Scurlock’s state court post-conviction proceedings remain pending,
his habeas petition is dismissed without prejudice.
A Will County jury found Scurlock guilty of three counts of predatory criminal sexual
assault of a child and four counts of criminal sexual assault. Doc. 1 at 1. The victim was his
stepdaughter, V.W., who was between eight and sixteen years old at the time the conduct
occurred. People v. Scurlock, 2012 IL App (3d) 100800-U, at ¶¶ 8-14 (Ill. App. Aug. 7, 2012)
(reproduced at Doc. 32-4). The trial court sentenced Scurlock to forty-four years in prison. Id.
at ¶ 22. Scurlock appealed, and the Appellate Court of Illinois affirmed. Id. at ¶ 35. The
Supreme Court of Illinois denied Scurlock’s petition for leave to appeal, People v. Scurlock, 982
N.E.2d 773 (Ill. 2013), and the United States Supreme Court denied his petition for writ of
certiorari, Scurlock v. Illinois, 571 U.S. 837 (2013).
On March 31, 2014, Scurlock brought a pro se, post-conviction petition under the Illinois
Post-Conviction Hearing Act, 725 ILCS 5/122–1 et seq. Doc. 1-1 at 39-88; Doc. 1-2 at 1-55.
The petition alleged, among other things, that Scurlock’s trial counsel was ineffective for failing
to renew his pretrial motion to suppress his recorded confession, to move to strike V.W.’s trial
testimony, and to challenge V.W.’s credibility by asking the state court to take judicial notice of
various facts—e.g., “humans cannot see through solid objects”—that he believed would have
exposed her testimony as incredible. Ibid. Because Scurlock indicated his desire to proceed pro
se, the court discharged his public defender. Doc. 23-1 at 2.
On September 29, 2015, the State moved to dismiss the post-conviction petition. Ibid.
Scurlock then filed a supplemental post-conviction petition raising the additional claim that the
reports of his trial proceedings had been falsified. Doc. 1-3 at 17-26. A question then arose
concerning Scurlock’s fitness to proceed. Doc. 23-1 at 2. The court ordered a fitness evaluation
and, on April 11, 2017, found Scurlock unfit to proceed. Doc. 32-20 at 28. Following periodic
reevaluations, the court continued to find Scurlock unfit. Doc. 32-17 (June 7, 2017 order); Doc.
32-18 (January 30, 2018 order); Doc. 32-19 (February 1, 2019 order). On February 1, 2019, the
court granted the state’s motion to dismiss the post-conviction petition without prejudice to
refiling upon Scurlock’s fitness being restored. Doc. 23-1 at 2.
Scurlock filed the present § 2254 petition on March 28, 2019, again proceeding pro se.
Doc. 1. The petition asserts several constitutional claims, many of which had been raised in the
state post-conviction petition. Ibid.
A few months later, the State moved in state court for a finding that Scurlock had been
restored to fitness. Doc. 23-1 at 4. The motion argued that Scurlock’s federal habeas petition
was “new evidence” showing that “he is now capable of communicating his allegations of
constitutional violations” and therefore fit to proceed with his post-conviction petition. Ibid.
(citing People v. Johnson, 730 N.E.2d 1107, 1115 (Ill. 2000)). The motion was presented on
September 25, 2019 and continued to December 2, 2019. Doc. 32-20 at 32. At the December 2
hearing, the motion was continued due to Scurlock’s absence. People v. Scurlock, 2007 CF
001742 (Cir. Ct. Will Cnty., Ill.) (docket viewed on the Will County Circuit Court’s website). A
writ was issued on January 8, 2020, and, on February 14, 2020, the matter was continued on
Scurlock’s motion. Ibid. The trial court since has ordered the case generally continued. Ibid.
Given the ongoing state post-conviction proceedings, the Warden moves to dismiss
Scurlock’s federal habeas petition for failure to exhaust state remedies. Doc. 31 at 18-19. As a
general rule, “[a] federal habeas petitioner is required under 28 U.S.C. § 2254(b) to exhaust state
remedies before a federal court will consider his claims.” Sceifers v. Trigg, 46 F.3d 701, 703
(7th Cir. 1995) (internal quotation marks omitted). An exception allows a petitioner to bypass
the state post-conviction process if “(i) there is an absence of available State corrective process;
or (ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b)(1)(B). The first circumstance does not apply, as Illinois allows
its prisoners to seek post-conviction relief under the Illinois Post-Conviction Hearing Act. See
People v. Hodges, 912 N.E.2d 1204, 1208-1210 (Ill. 2009) (describing the Act’s three-tiered
review process). The pertinent question, then, is whether the State’s procedures are “ineffective”
to protect Scurlock’s rights within the meaning of § 2254(b)(1)(B)(ii).
Scurlock’s principal contention is that the State has unduly delayed his post-conviction
proceedings to such a degree as to render them ineffective to protect his rights. According to
Scurlock, the State “abused the postconviction fitness process so as to indefinitely delay [his]
postconviction proceedings” after learning that he intended to amend his post-conviction petition
to assert his “false transcript” claim. Doc. 67 at 4, 7; see also Doc. 1 at 3; Doc. 5. Scurlock
further alleges that the State’s “stated intentions were to never allow [him] to be found fit” in an
effort to “coerce” him into abandoning that claim. Doc. 67 at 7; see also id. at 4 (alleging that he
was “never unfit for postconviction relief proceedings”).
Although Scurlock is correct that certain delays in state court collateral proceedings may
allow a federal habeas petitioner under § 2254(b)(1)(B)(ii) to bypass exhaustion, the delay must
be “inordinate” and “unjustifiable.” Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997).
The inquiry does not reduce to bright-line rules, but instead requires a case-sensitive approach
that may entail a hearing to assess whether a lengthy delay is attributable to the State and, if so,
whether it is justifiable. See Lane v. Richards, 957 F.2d 363, 365 (7th Cir. 1992). Here,
however, “[t]he reason for the delay is no mystery”: the state court postponed Scurlock’s postconviction proceedings because it found him unfit to proceed. Ibid. Scurlock casts aspersions
on the State’s reasons for seeking the delay, but this court need not plumb the State’s motivations
to take stock of the progress of his case. Scurlock’s post-conviction proceedings are back under
way: the State moved to find him fit, a writ was issued on January 8, 2020, and the state trial
court continued the matter, once on Scurlock’s own motion. See Sceifers, 46 F.3d at 704
(recognizing that delays caused by the petitioner cannot be attributed to the State in determining
whether a state process is “ineffective” under § 2254(b)(1)(B)(ii)).
At this juncture, intervention by a federal habeas court would disserve “the interests of
federal-state comity” at the heart of § 2254(b)’s exhaustion requirement. See Malone v. Walls,
538 F.3d 744, 756 (7th Cir. 2008) (internal quotation marks omitted); see also Ward v. Hinsley,
377 F.3d 719, 726 (7th Cir. 2004) (emphasizing that state courts are intended to be the front-line
vindicators of constitutional rights). The State has addressed the source of the prior delay of
Scurlock’s state post-conviction proceedings, and that case is moving forward. See Lane, 957
F.2d at 365 (noting that a federal habeas petitioner’s ability to get his state post-conviction
proceedings “back under way” is reason to refrain from questioning a possible delay in those
proceedings because “[n]either the state judge nor the state judicial system is on trial”).
Under these circumstances, the proper course is to dismiss Scurlock’s § 2254 petition for
failure to exhaust. As the Warden recognizes, Doc. 23 at 2 n.1, the dismissal should be without
prejudice to Scurlock timely refiling his petition once the state post-conviction proceedings
conclude. Scurlock also may refile his petition if he faces an inordinate and unjustified delay in
the state court proceedings. Because there is a “plain procedural bar” to the § 2254 petition, the
court will not issue a certificate of appealability. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
September 15, 2020
United States District Judge
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