Bean v. Rednour

Filing 13

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. IT IS THEREFORE ORDERED that respondent shall answer the petition or otherwise plead as to the following grounds raised in the petition: 1) petitioners conviction was tainted by prosecutoria l misconduct, where the prosecutor vouched for the credibility of a witness in open court; 2) trial counsel was ineffective for failing to present all mitigating evidence, failing to present alibi witnesses, and failing to investigate and prepare the case; and 3) trial counsel was ineffective for failing to challenge the charging indictment (see Doc. 1, pp. 6-10). The response shall be filed within thirty days of the date this order is entered (on or before September 24, 2012). Signed by Chief Judge David R. Herndon on 8/21/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES BEAN, No. B-82034,
Petitioner,
vs.
DAVE REDNOUR,
Respondent.

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CIVIL NO. 11-cv-715-DRH

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
This matter is before the Court on petitioner’s habeas corpus action under 28
U.S.C. § 2254. The petition was timely filed on August 18, 2011, and challenges
petitioner’s September 28, 2000, conviction on two counts of first degree murder for
which he is serving a life sentence.
On May 31, 2012 (Doc. 10), this Court ordered petitioner to file documents
regarding the status of the pending appeal of his dismissed successive postconviction petition, in which he raised a claim of “newly discovered evidence” (Doc.
1, p. 5). The deadline for petitioner to file the documents was extended until August
18, 2012 (Doc. 12). That date has now passed, and petitioner has failed to submit
any of the requested material.

Based on the petition, and lacking further

information, the Court must conclude that the “newly discovered evidence” claim has
not been fully exhausted through the Illinois state courts.
Accordingly, petitioner’s “newly discovered evidence” claim is DISMISSED
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WITHOUT PREJUDICE based on the failure to exhaust.

See 28 U.S.C. §

2254(b)(1)(A); § 2254(c).
However, the petition indicates that the other three grounds have been fully
exhausted.
IT IS THEREFORE ORDERED that respondent shall answer the petition or
otherwise plead as to the following grounds raised in the petition: 1) petitioner’s
conviction was tainted by prosecutorial misconduct, where the prosecutor vouched
for the credibility of a witness in open court; 2) trial counsel was ineffective for failing
to present all mitigating evidence, failing to present alibi witnesses, and failing to
investigate and prepare the case; and 3) trial counsel was ineffective for failing to
challenge the charging indictment (see Doc. 1, pp. 6-10). The response shall be filed
within thirty days of the date this order is entered (on or before September 24,
2012). This preliminary order to respond does not, of course, preclude the State
from making whatever waiver, exhaustion or timeliness argument it may wish to
present. Service upon the Illinois Attorney General, Criminal Appeals Bureau, 100
West Randolph, 12th Floor, Chicago, Illinois 60601 shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this cause
is referred to a United States Magistrate Judge for further pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a United
States Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(2)
and 28 U.S.C.

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§ 636(c), should all the parties consent to such a referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and each
opposing party) informed of any change in his whereabouts during the pendency of
this action. This notification shall be done in writing and not later than seven days
after a transfer or other change in address occurs. Failure to provide such notice
may result in dismissal of this action. See FED. R. CIV. P. 41(b).

Digitally signed by
David R. Herndon
Date: 2012.08.21
15:26:50 -05'00'

IT IS SO ORDERED.
DATED: August 21, 2012

Chief Judge
United States District Court

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