Turner v. Bates

Filing 15

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. IT IS HEREBY ORDERED that respondent shall answer the petition or otherwise plead within thirty (30) days of the date this order is entered. Signed by Chief Judge David R. Herndon on 8/10/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANIEL TURNER,
Petitioner,

vs.
TY BATES,

Respondent.
Case No. 11-cv-892-DRH
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Pending before the Court is Daniel Turner’s (“petitioner”) petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 9). Petitioner, currently
incarcerated in the Big Muddy River Correctional Center, was convicted of
aggravated fleeing and eluding, resisting arrest, unlawful restraint, vehicular
hijacking, and aggravated battery. In his petition, he alleges two grounds: 1) that
petitioner was charged and convicted of vehicular hijacking, but claims that it is
undisputed that petitioner never “took” the vehicle from the victim as required by
the statute and was therefore found not guilty beyond a reasonable doubt; and 2)
ineffective assistance of counsel by his appellate counsel for failing to raise the issue
raised in ground one in his direct appeal. (Doc. 9).
Petitioner alleges that he directly appealed his conviction and subsequently
sought leave to appeal the Illinois Appellate Court’s decision affirming his
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conviction to the Illinois Supreme Court. His request was denied. He further
relates that he filed a state post-conviction petition which was dismissed.

He

appealed that dismissal to the Illinois Appellate Court and the dismissal was
affirmed.

Petitioner then filed a petition for leave to appeal with the Illinois

Supreme Court, which was denied on March 30, 2011. Illinois v. Turner, 949
N.E.2d 664 (2011).
It appears that petitioner has exhausted his state law remedies and timely
filed his petition. Accordingly, IT IS HEREBY ORDERED that respondent shall
answer the petition or otherwise plead within thirty (30) days of the date this order
is entered. This preliminary order to respond does not, of course, preclude the
State from making whatever waiver, exhaustion or timeliness arguments 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. § 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 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.
Signed this 10th day of August, 2012.

Digitally signed by
David R. Herndon
Date: 2012.08.10
15:34:15 -05'00'
Chief Judge
United States District Court

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