Sutton v. Bates

Filing 6

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. IT IS HEREBY ORDERED that respondent shall answer the petition or otherwise plead within thirty (30) days of the date this order is entered. Service upon the Illinois Attorney General, Criminal Appeals Bureau, 100 West Randolph, 12th Floor, Chicago, Illinois 60601 shall constitute sufficient service. Signed by Chief Judge David R. Herndon on 8/9/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERIC SUTTON,
Petitioner,
vs.
TY BATES,
Respondent.
Case No. 11-cv-908-DRH
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Pending before the Court is petitioner Eric Sutton’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Petitioner, currently
incarcerated in the Big Muddy River Correctional Center, was convicted of first
degree murder and attempted first degree murder.

In his petition, he alleges

actual innocence based upon newly discovered evidence (Doc. 1).
Petitioner alleges he directly appealed his conviction and subsequently
sought leave to appeal the Illinois Appellate Court’s decision affirming his
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 case was remanded
back to the Illinois circuit court. On remand, the petition was again dismissed.
Petitioner again appealed the dismissal to the Illinois Appellate Court, and his
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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. Sutton,
949 N.E.2d 664 (2011). Petitioner did not file a petition for certiorari with the
United States Supreme Court.
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.
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
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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 9th day of August, 2012.

David R. Herndon
2012.08.09
07:53:13 -05'00'
Chief Judge
United States District Court

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