Samanta v. Godinez et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. IT IS HEREBY ORDERED that Respondent shall, within thirty (30) days of receipt of this application for Writ of Habeas Corpus, answer and show cause why the writ should not issue. Service upon the United States Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St. Louis, IL, shall constitute sufficient service. Signed by Chief Judge David R. Herndon on 7/18/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL SAMANTA, #R-56741,
Petitioner,
vs.
S.A. GODINEZ, RICHARD YOUNG,
and ILLINOIS ATTORNEY
GENERAL,

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CIVIL NO. 11-cv-864-DRH

Respondents.

MEMORANDUM AND ORDER

HERNDON, Chief Judge:
Petitioner, currently incarcerated in Western Illinois Correctional Center,
brings this habeas corpus action pursuant to 28 U.S.C. § 2254 to challenge the
constitutionality of his confinement. Petitioner is serving a twenty-five year sentence
imposed by the Circuit Court of Cook County, Illinois, following a jury trial (Doc. 1,
p. 2).

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Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct
the clerk to notify the petitioner.”
According to the instant habeas petition, petitioner was convicted on August
7, 2006, of first degree murder. He appealed, raising arguments that the trial court
failed to suppress evidence, quash his arrest, or adequately instruct the jury
(amongst other claims). On November 29, 2007, his conviction was affirmed on
direct appeal (Doc. 1-1, pp. 1-17), and his petition for rehearing in the Illinois
Appellate Court, First District, was denied on January 15, 2008 (Doc. 1-1, p. 18).
Petitioner sought leave to appeal from the Illinois Supreme Court, which was denied
on May 29, 2008 (Doc. 1-1, p. 19). He did not seek further review from the United
States Supreme Court.
He then filed a petition for post-conviction relief on November 21, 2008, raising
the same five issues as his direct appeal. The trial court’s denial of that petition was
affirmed by the Illinois Appellate Court on September 30, 2010 (Doc. 1-1, pp. 31-38),
and his petition for rehearing in the Illinois Appellate Court, First District, was denied
on October 26, 2010 (Doc. 1, p. 15). Again, petitioner sought leave to appeal from the
Illinois Supreme Court, which was denied on January 26, 2011 (Doc. 1, p. 15).

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Petitioner timely filed1 the instant action on September 23, 2011, raising four
grounds for relief: (1) his conviction was unconstitutional because he was arrested
without warrant, consent or exigency; (2) the warrant allowing an overhear (transcript
used at trial) was issued without probable cause; (3) disclosure of petitioner’s
statement during trial violated discovery rules and due process; and (4) trial counsel
was ineffective for failing to suppress petitioner’s statement or call certain witnesses.
As to petitioner’s third claim, he asserts that the prosecuting attorneys, by
introducing petitioner’s statements at trial without first notifying defense counsel,
violated his due process rights, citing Brady v. Maryland, 373 U.S. 83 (1963).
Petitioner has addressed each of these four claims previously in his post-conviction
and direct appeals, and thus, has properly exhausted his state court remedies.
Before further proceedings are ordered, a few words about the named
respondents are necessary. Petitioner names as a respondent not only the warden
of his prison, Richard Young, but also the Attorney General of Illinois. This practice
is quite common among pro se litigants in this District, but the only proper
respondent in a collateral attack is his custodian. As stated clearly by the Seventh
Circuit,
The Attorney General of [Illinois] is the state’s lawyer, not the prisoner’s

1

At first glance, it may seem as though the one-year limitations period for filing a § 2254
petition had run in this case. See 28 U.S.C. § 2244(d)(1). However, although petitioner did not
seek further review after the May 29, 2008, denial of leave to appeal by the Illinois Supreme
Court, under Anderson v. Litscher, 281 F.3d 672 (7th Cir. 2002), his judgment of conviction did
not become final until the expiration of the 90 day window to petition the Supreme Court for
certiorari. See 28 U.S.C. § 2244(d)(1)(A). Therefore, petitioner filed the instant petition at least
one month before the applicable statute of limitations had run.
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custodian. If the petitioner is in prison, the warden is the right
respondent. If the petitioner is on parole, the parole board or equivalent
should be named. A state’s attorney general is a proper party only if
the petitioner is not then confined, but expects to be taken into
custody.
Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996) (emphasis added). See also Cruz
v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 665 n.1 (7th Cir. 1990); Rules 2(a)
and (b) of the Rules Governing § 2254 Cases in the United States District Courts.
Because petitioner is currently incarcerated due to the conviction he challenges, the
only proper respondent is Warden Young.

The Illinois Attorney General is

DISMISSED as a party and should not appear as a litigant in any future § 2254 case
except under the conditions specified in Rule 2(b). Likewise, as S.A. Godinez is the
current Director of the Illinois Department of Corrections and not petitioner’s
custodian, Director Godinez is DISMISSED as a party in this case.
IT IS HEREBY ORDERED that Respondent shall, within thirty (30) days of
receipt of this application for Writ of Habeas Corpus, answer and show cause why the
writ should not issue.
Service upon the United States Attorney for the Southern District of Illinois,
750 Missouri Avenue, East St. Louis, IL, 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. § 636(c), should all the parties consent to such a referral.
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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 (7) 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).
IT IS SO ORDERED.

David R. Herndon
2012.07.18
15:24:40 -05'00'

Dated: July 18, 2012

Chief Judge
United States District Court

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