Howard v. Hulick

Filing 110

ORDER DISMISSING CASE. The petition for writ of habeas corpus 1 is DENIED and the case is DISMISSED with prejudice. The Court further DENIES petitioner a certificate of appealability. Lastly, the Court DIRECTS the Clerk of the Court to enter judgment reflecting the same. Signed by Chief Judge David R. Herndon on 11/04/2013. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER J. HOWARD,
Prisoner #B86767,
Petitioner,
v.
MICHAEL ATCHISON 1,
Respondent.

Case No. 3:11-cv-00244-DRH-SCW
MEMORANDUM AND ORDER

HERNDON, Chief District Judge:
I.

Introduction

Petitioner Christopher J. Howard (“Howard”), currently incarcerated at
Menard Correctional Center, brings this habeas corpus action pursuant to 28
U.S.C. Section 2254 challenging his conviction for first degree murder (Doc. 1).
Respondent has answered (Doc. 88) and petitioner replied (Doc. 92). For the
following reasons, the petition is DENIED and the case is DISMISSED with
prejudice.
II.

Background

Following a jury trial in the Circuit Court of St. Clair County, Howard was
found guilty of first degree murder and was sentenced on December 18, 2008, to
forty-one years of imprisonment. On January 6, 2009, petitioner filed a pro se
1

Respondent informed the Court that Michael P. Atchison is the current Warden of Menard
Correctional Center and the proper respondent. Thus, the Court substitutes Atchison for the
original respondent Donald A. Hulick.

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notice of appeal and, on April 6, 2009, the Illinois Court of Appeals dismissed the
appeal for lack of jurisdiction.
Also on April 6, 2009, the trial court denied petitioner’s motion to
reconsider and petitioner’s remaining pending pro se motions. Petitioner, again
pro se, filed a notice of appeal regarding these judgements.

Later obtaining

counsel, Howard directed his attorney to file a motion to dismiss the appeal
thereafter granted by the appellate court. The case was dismissed in November
2010. 2
Contemporaneously, on July 9, 2009, petitioner filed an amended postconviction petition claiming that he was tried in violation of his speedy trial rights.
The petition was dismissed on May 16, 2011 and petitioner did not appeal.
On January 12, 2011, petitioner filed a pro se document with the trial
court, later construed to be an amended post-conviction petition. In that petition,
Howard argued a single ground for relief, that the circuit court violated the due
process clause of the Fourteenth Amendment when he was not given notice nor
present in court for a September 8, 2008 motion hearing.

The State filed a

motion to dismiss the case and the Court granted the State’s request on May 16,
2011. Petitioner did not appeal.
On December 10, 2009, petitioner filed a federal habeas petition
challenging his conviction for failure to comply with his speedy trial rights. The

2

The trial court granted the State’s motion to dismiss on November 10, 2010 and reissued the
order on November 30, 2010 to correct the list of judges assigned to the case.

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undersigned dismissed the claim without prejudice on June 15, 2010 because
petitioner’s post-conviction claim was still pending in state court.
On March 30, 2011, petitioner filed the current action. The petition raises
the same issue presented in the January 12, 2011 post-conviction action, that the
Circuit Court violated the due process clause of the Fourteenth Amendment when
Howard was not given notice nor present in court for a September 8, 2008 motion
hearing. On May 17, 2011, respondent filed a motion to dismiss arguing that the
petitioner had not exhausted his state court remedies. The case was dismissed
on July 21, 2011 for failure to pay the filing fee.
Petitioner subsequently paid the filing fee and the Court vacated its
dismissal on March 8, 2012. On April 19, 2012, the Court directed respondent to
file a supplement addressing whether any claims remained unexhausted and
respondent did so on April 25, 2012. Respondent attached petitioner’s St. Clair
County docket sheet (Doc. 73-1) showing that petitioner had not filed an appeal.
The Court then directed respondent, on May 2, 2012, to file a response to the
petition.
On August 9, 2012, respondent filed an answer to petitioner’s claim (Doc.
88) arguing that petitioner’s claim is procedurally defaulted.

Specifically,

respondent argues petitioner failed to present his claim to one complete round of
state court proceedings.

Further, respondent asserts that the Court should

decline to issue a certificate of appealability because reasonable jurists would not
find it debatable that petitioner’s claim is procedurally defaulted.

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In his reply, Howard asserts that the Court has “original jurisdiction over
federal question cases. As such, petitioner has shown why his claim is not barred
from receiving federal habeas relief” (Doc. 92, p 2).

The Court construes

petitioner’s reply as emphasizing petitioner’s arguments as asserted in his
petition.
III.

Analysis

The standards of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254, govern this Court’s review of Howard’s petition.
Section 2254 permits federal courts to entertain an application for a writ of
habeas corpus on “behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”

28 U.S.C. § 2254(a)

(emphasis added).
As a threshold matter, a habeas petition shall not be granted unless the
applicant has exhausted his State court remedies. 28 U.S .C. § 2254(b)(1)(A). A
petitioner must fully and fairly present his federal claims through one full round
of state court review before he filed his federal habeas petition. See O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999); Gray v. Hardy, 598 F.3d 324, 327 (7th Cir.
2010). “[W]hen a petitioner has exhausted his state court remedies and failed to
properly assert his federal claims at each level of review, those claims are
procedurally defaulted.” Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009).

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Upon thorough review of the record, the Court finds that Howard’s single
claim is procedurally defaulted. Howard’s claim was not presented through one
full found of state court review. The January 12, 2011 post-conviction petition
raising this claim was dismissed and petitioner did not appeal. The petitioner has
not asserted or invoked either of the exceptions to the requirement of this
exhaustion (cause and prejudice by some external factor nor actual innocence)
and, therefore, neither will be analyzed or considered.
Further, the Court declines to issue a certificate of appealability on
petitioner’s claim. Pursuant to 28 U.S.C. § 2253, a certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.”

This requirement has been interpreted by the Supreme

Court to mean that an applicant must show that “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.”

Miller-el v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). Here, the undersigned finds no basis for a
determination that the Court’s decision to dismiss petitioner’s claim is debatable
or incorrect. Petitioner’s single claim is procedurally defaulted.
IV.

Conclusion

Accordingly, the petition for writ of habeas corpus (Doc. 1) is DENIED and
the case is DISMISSED with prejudice. The Court further DENIES petitioner a

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certificate of appealability. Lastly, the Court DIRECTS the Clerk of the Court to
enter judgment reflecting the same.
IT IS SO ORDERED.
Signed this 4th day of November, 2013.

Digitally signed by
David R. Herndon
Date: 2013.11.04
12:26:41 -06'00'
Chief Judge
United States District Court

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