McWhorter v. Madigan

Filing 5

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. IT IS HEREBY ORDERED that respondent Illinois Attorney General Lisa Madigan shall answer the petition or otherwise plead on or before February 10, 2014. Signed by Chief Judge David R. Herndon on 1/15/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEVIN MCWHORTER,
No. 08194-025
Petitioner,
vs.
LISA MADIGAN,
Respondent.

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Case No. 13-cv-01303-DRH

MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner Kevin McWhorter is currently incarcerated in the Federal
Correctional Institution at Greenville, Illinois. In 2009, McWhorter pled guilty to
conspiring to manufacture and distribute methamphetamine, and he was
sentenced to a 240-month term of imprisonment. United States v. McWhorter,
No. 09-CR-30046-JPG (S.D. Ill. Nov. 23, 2009).

McWhorter has now filed a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his
2001 and 2002 Shelby County, Illinois, convictions for manufacturing a
controlled substance and unlawfully possessing a controlled substance, which
were used to enhance his 2009 federal sentence (People v. McWhorter, 01-CF-63
(Shelby Co. Cir. Ct., July 2, 2001); People v. McWhorter, 02-CF-87 (Shelby Co.
Cir. Ct., Sept. 13, 2002)).
Both state sentences have been served. McWhorter’s 2012 motion to vacate
those convictions was denied in the Circuit Court, and a subsequent appeal was

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dismissed. See People v. McWhorter, No. 5-12-0417 (Ill.App. 5th Dist. Jan. 7,
2013). It appears that leave to appeal was not sought from the Illinois Supreme
Court.
Citing Lackawana County Dist. Attoeney v. Coss, 532 U.S. 394 (2001),
petitioner McWhorter argues that his Section 2254 petition attacking his expired
or discharged state convictions can be considered based on the rare exception to
the general rule of finality that allows expired convictions that were used to
enhance a sentence to be challenged when the convictions were the product of a
violation of the principles of Gideon v. Wainwright, 372 U.S. 335 (1963) and the
Sixth Amendment right to counsel. See also Custis v. United States, 511 U.S.
485 (1994); Daniels v. United States, 532 U.S. 374 (2001); Jackson v. Miller,
260 F.3d 769, 773-74 (7th Cir. 2001). According to the petition, McWhorter was
denied counsel altogether and railroaded into pleading guilty in 2001, and again
in 2002.
In order to get around his obvious procedural default, McWhorter cites
Grigsby v. Cotton, 456 F.3d 727 (7th Cir. 2006) for the proposition that a Section
2254 may be used to challenge an expired state conviction based on a Gideon
violation and Lackawanna. Martinez v. Ryan, __U.S.__, 132 S.Ct. 1309 (March
20, 2012), is also cited for the proposition that inadequate assistance of counsel
in an “initial review collateral proceeding” can be cause for excusing a procedural
default.

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Even the preliminary question of whether Section 2254 or Section 2255 is
the appropriate vehicle for McWhorter’s challenge—let alone the merits of the
petition—cannot be determined upon preliminary review. Daniels indicates that a
federal prisoner can use Section 2254 (see 532 U.S. at 382), while Johnson v.
United States, 544 U.S. 295, 301 n. 3 (2005), suggests that Section 2255 may be
used when the Gideon exception applies.

Further complicating matters,

McWhorter’s plea agreement contains a waiver of his right to contest any aspect of
his federal sentence that could be challenged under Title 28, except the
“reasonableness” of the sentence (No. 09-CR-30046-JPG, Doc. 20, p. 11). For
these reasons, the Court concludes that the petition survives preliminary review
under Rule 4 of the Rules Governing Section 2254 Cases in United States District
Courts.
Of course, which statutory vehicle is appropriate will dictate the proper
respondent.

At this juncture, the Attorney General of Illinois is a proper

respondent.
IT IS HEREBY ORDERED that respondent Illinois Attorney General Lisa
Madigan shall answer the petition or otherwise plead on or before February 10,
2014. 1 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,

1

The response date Ordered herein is controlling. Any date that CM/ECF should
generate in the course of this litigation is a guideline only. See SDIL-EFR 3.
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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 United States Magistrate Judge Clifford J. Proud 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
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 15th day of January, 2014.

Digitally signed by
David R. Herndon
Date: 2014.01.15
12:03:02 -06'00'
Chief Judge
United States District Court

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