Pacheco v. Thompson

Filing 10

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 10/24/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARIA PACHECO,
R-89911,
Petitioner,
vs.
SHERYL THOMPSON,
Respondent.

Case No. 14-cv-01055-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner

Maria

Pacheco,

who

is

currently

incarcerated

in

Logan Correctional Center (“Logan”), brings this habeas corpus action pursuant
to 28 U.S.C. § 2254, in order to challenge her murder conviction (Doc. 1).
This matter is now before the Court for a preliminary review of the petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District
Courts. Rule 4 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.” After carefully reviewing the
claims presented in the petition, the Court concludes that Pacheco has failed to
exhaust all means of available relief under state law.

Federal habeas corpus

review is therefore premature, and the petition shall be DISMISSED.

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I.

Background

In 2011, Pacheco was convicted of murder in the Circuit Court of Cook
County, Illinois (Doc. 1, p. 1).

She was sentenced to fifteen years of

imprisonment. Pacheco filed a direct appeal with the Fourth District Appellate
Court of Illinois, which was denied in June 2013 (Doc. 1, p. 2). Pacheco did not
appeal the appellate court’s decision or file a post-conviction petition challenging
her conviction in state court.

Instead, on August 12, 2014, Pacheco filed the

present petition for writ of habeas corpus in the Northern District of Illinois
(Doc. 1), challenging her 2011 conviction for murder.

The case was properly

transferred to this Court pursuant to 28 U.S.C. § 2241(d) on October 1, 2014.
II.

Discussion

Absent exceptional circumstances, a petitioner may not file a federal habeas
petition until she has exhausted all means of available relief under state law.
28 U.S.C. § 2254(b); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999);

Picard v. Connor, 404 U.S. 270, 275 (1971); Kurzawa v. Jordan, 146 F.3d 435,
440 (7th Cir. 1998). A petitioner “shall not be deemed to have exhausted the
remedies available . . . if [s]he has the right under the law of the state to raise, by
any available procedure, the question presented.”

28 U.S.C. § 2254(c).

Before proceeding with a review of a petition for habeas corpus on its merits, the
district court is required to make two inquiries, as follows:
. . . whether the petitioner exhausted all available state remedies and
whether the petitioner raised all his claims during the course of the
state proceedings. If the answer to either of these inquiries is “no,”

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the petition is barred either for failure to exhaust state remedies or
for a procedural default.

Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). This requirement stems from
“the understanding that state courts are equally obliged to follow federal law and
from the desire for comity between state and federal court systems.”

See Spreitzer v. Schomig, 219 F.3d 639, 644-45 (7th Cir. 2000). Therefore, a
petitioner must have presented every claim included in the federal habeas petition
in a petition for discretionary review to a state court of last resort.

O'Sullivan, 526 U.S. at 846-47.
In the present petition, Pacheco admits that she has not filed a postconviction petition in state court (Doc. 1, p. 3).

Before this Court can even

consider Pacheco’s federal petition, she must exhaust all means of available relief
under state law, which includes review of her claims through the entire Illinois
appellate process, including the state’s highest court. Only then can this Court
consider Pacheco’s claims.

Accordingly, the habeas petition (Doc. 1) shall be

dismissed.
III.

Disposition

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice.
Should Pacheco desire to appeal this Court’s ruling dismissing her petition
for a writ of habeas corpus, she must first secure a certificate of appealability,
either from this Court or from the court of appeals. See Fed. R. App. P. 22(b); see

also 28 U.S.C. § 2253(c)(1).

Pursuant to 28 U.S.C. § 2253, a certificate of
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appealability may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.”
This requirement has been interpreted by the Supreme Court to mean that
an applicant must show that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). While a petitioner need not show that her appeal will
succeed, Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), she must show
“something more than the absence of frivolity” or the existence of mere “good
faith” on her part. Id. at 338 (citation omitted). If the district court denies the
request, a petitioner may request that a circuit judge issue the certificate.

See Fed. R. App. P. 22(b)(1)-(3).
For the reasons detailed above, the Court has determined that Pacheco has
failed to exhaust all available state remedies, and she is not entitled to relief
pursuant to 28 U.S.C. § 2254.

Furthermore, the Court finds no basis for a

determination that its decision is debatable or incorrect. Thus, petitioner has not
made “a substantial showing of the denial of a constitutional right.”
IT IS THEREFORE ORDERED that a certificate of appealability shall
NOT be issued.
The Clerk is DIRECTED to close this case.

Digitally signed by
David R. Herndon
Date: 2014.10.24
17:01:19 -05'00'

IT IS SO ORDERED.
DATED: October 24, 2014

United States District Court

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