Gay v. Lambert

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, granting 2 MOTION for Leave to Proceed in forma pauperis filed by Anthony Gay. IT IS HEREBY ORDERED that respondent shall answer the petition or otherwise plead within thirty days of the date this order is entered. (Action due by 11/26/2012). Signed by Chief Judge David R. Herndon on 10/25/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY GAY, No. B-62251,
Petitioner,
vs.
GREG LAMBERT and
ILLINOIS ATTORNEY GENERAL,
Respondents.

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CIVIL NO. 12-cv-1065-DRH

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Anthony Gay, a state prisoner, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 Livingston County,
Illinois, conviction for aggravated battery and unlawful possession of a weapon in
a penal institution (Case No. 03-CF-146). Petitioner challenges his conviction on
the grounds that his guilty plea was involuntary, his sentence was void, and his
due process rights were violated by the prison’s failure to put him on notice that
his conduct would be treated as a violation of a state criminal statute (as opposed
to merely being punished as an infraction under internal prison rules) (Doc. 1,
pp. 9-10).
Petitioner indicates that he has exhausted his state court remedies with
respect to the claims raised in his federal habeas petition; furthermore, he
appears to have filed his petition in a timely manner.
Also before the Court is petitioner’s motion to proceed in forma pauperis
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(Doc. 2). Based on the financial information provided with his motion,
petitioner’s motion to proceed in forma pauperis is GRANTED.
IT IS HEREBY ORDERED that respondent shall answer the petition or
otherwise plead within thirty days of the date this order is entered (on or before
November 26, 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. § 636(c), should all the parties consent to such a
referral.
Finally, on the Court’s own motion, Illinois Attorney General Lisa Madigan
is dismissed as a party. See Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996),
cert denied, 520 U.S. 1171 (1997) (a state’s attorney general is a proper party in a
habeas petition only if the petitioner is not then confined); see also Rules 2(a) and
(b) of the Rules Governing Section 2254 Cases. In this case, the petitioner is not
challenging a future sentence, but rather his present confinement. Therefore, the

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Illinois Attorney General is not a proper party.
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.

Digitally signed by
David R. Herndon
Date: 2012.10.25
13:05:21 -05'00'

DATED: October 25, 2012

Chief Judge
United States District Court

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