Brzowski v. Spiller

Filing 5

ORDER DISMISSING CASE without prejudice. Signed by Judge David R. Herndon on 12/9/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WALTER J. BRZOWSKI,
No. M29120
Petitioner,
vs.
THOMAS A . SPILLER,
Respondent.

Case No. 14-cv-01269-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Walter J. Brzowski is currently incarcerated in Pinckneyville
Correctional Center, within this judicial district.

In 2012, petitioner was

convicted in Will County, Illinois, of two counts of violating an order of protection
in two separate cases: People v. Brzowski, Case No. 10-CF-1923 (Ill. Cir. Ct.
2012); and People v. Brzowski, Case No. 10-CF 2494 (Ill. Cir. Ct. 2012). He was
sentenced to two concurrent four-year prison terms in each case. Pursuant to 28
U.S.C. § 2254, Brzowski has now filed a petition for writ of habeas corpus seeking
release from custody (Doc. 1).
This matter is now before the Court for review of the petition pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts, which provides that upon preliminary consideration by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.”
For the reasons set forth below, the petition shall be DISMISSED.
Analysis
Petitioner Brzowski asserts three grounds for relief: (1) in accordance with
725 ILCS 5/114-5(d), the trial court lost jurisdiction over his criminal cases
when his motion for substitution of judge was improperly denied, rendering all
subsequent action by the trial judge null and void; (2) as a result, petitioner’s
constitutional right to due process has been violated; and (3) petitioner’s state
appellate cases are taking too long (People v. Brzowski, Case Nos. 3-12-0376
and 3-12-0477 (Ill. App. 3rd Dist. 2012))(see Doc. 1, pp. 5-6).
On its face, the petition reveals two significant legal hurdles Brzowski must
clear before the Court can consider the merits of his claims. As highlighted by
the third ground for relief, appeals within the state court system remain pending:
People v. Brzowski, Case Nos. 3-12-0376 and 3-12-0477 (Ill. App. 3rd Dist.
2012). In addition, as acknowledged in the petition, there is another Section
2254 petition for writ of habeas corpus pending in the Northern District of
Illinois: Brzowski v. Spiller, Case No. 14-cv-04014 (N.D. Ill. 2014) (see Doc. 1,
p. 4).

A review of the amended petition in that case reveals that the same

grounds for relief are presented.
Relative to the appeals pending in state court, federal habeas relief “shall
not be granted” unless the petitioner has exhausted remedies available in state

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court. 28 U.S.C. § 2254(b)(1)(A); see also O’Sullivan v. Boerckel, 526 U.S. 838,
843-45 (1999) (Illinois prisoner must exhaust habeas claims by fairly presenting
them in one complete round of established appellate review system). Brzowski
argues in the petition in this district and in the petition in the Northern District
that a petitioner can bypass the Section 2254(b) exhaustion requirement if he
establishes that state court proceedings have been inordinately and unjustifiably
delayed rendering those proceedings ineffective. See 28 U.S.C. § 2254(b)(1)(B);
Sceifers v. Trigg, 46 F.3d 701, 703 (7th Cir. 1995); Jackson v. Duckworth, 112
F.3d 878, 881 (7th Cir. 1997).

Because that issue has been briefed and is

awaiting decision in the Northern District, this Court will not offer any further
analysis. In any event, this action must be dismissed based solely on the fact that
there is an identical petition pending in another district court.
This Court does not know what motivated Brzowski to file his petition in
this district when an identical petition is pending in the Northern District of
Illinois.

However, it is noted that, just prior to the petition being filed in the

Southern District, respondent Warden Spiller moved to dismiss the Northern
District petition over Brzowski’s objection, and a briefing schedule was entered.
Uncertainty about the proper venue for the petition also could have
motivated Brzowski.1 As already noted, Pinckneyville Correctional Center, where
Brzowski is incarcerated, is located in the Southern District of Illinois.

Will

County, where petitioner was convicted, is located in the Northern District of
1

A Section 2254 petition may be filed in the district court for the district wherein the petitioner is
in custody or in the district court for the district containing the state court which convicted and
sentenced the petitioner. 28 U.S.C.A. § 2241(d).
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Illinois (see 28 U.S.C. § 93). Thus, the Northern District of Illinois remains an
appropriate venue for Brzowski’s Section 2254 petition, and the Northern District
of Illinois has not transferred Case No. 14-4014 to this district. Although the two
judicial districts have concurrent jurisdiction to entertain the petition (see 28
U.S.C. § 2241(d)), petitioner cannot pursue two identical petitions in different
districts in order to increase the possibility of a favorable ruling. The Supreme
Court has construed the concurrent jurisdiction provision in Section 2241(d) in
the disjunctive—as an “either/or” choice of venue. See Braden v. 30th Judicial
Circuit Court of Kentucky, 410 U.S. 484, 497 (1973) (“[A] prisoner contesting a
conviction and sentence of a state court of a State which contains two or more
federal judicial districts, who is confined in a district within the State other than
that in which the sentencing court is located, has the option of seeking habeas
corpus either in the district where he is confined or the district where the
sentencing court is located.”).
IT IS THEREFORE ORDERED that the petition is DISMISSED without
prejudice; judgment shall enter accordingly. This case is closed.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment.

FED. R. APP. P.

4(a)(4). A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal.

See FED. R. APP. P. 24(a)(1)(C).

If

petitioner does choose to appeal and is allowed to proceed IFP, he will be
required to pay a portion of the $505.00 appellate filing fee in order to pursue his

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appeal (the amount to be determined based on his prison trust fund account
records for the past six months) irrespective of the outcome of the appeal. See
FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d
724, 725–26 (7th Cir.2008); Sloan v. Lesza, 181 F.3d 857, 858–59 (7th
Cir.1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.1998).

A timely

motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30–day
appeal deadline.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the
Court must issue or deny a certificate of appealability “when it enters a final order
adverse to the applicant.” Id. The Court may grant a certificate of appealability
only where a petitioner has made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2); Copeland v. Washington, 232
F.3d 969 (8th Cir. 2000). To make such a showing, the issues must be debatable
among reasonable jurists, a court must be able to resolve the issues differently, or
the case must deserve further proceedings. See Flieger v. Delo, 16 F.3d 878,
882–83 (8th Cir. 1994). The Court finds that it is unlikely that another court
would decide this case differently.

For this reason, the Court DENIES a

certificate of appealability.
IT IS SO ORDERED.
Signed this 9th day of December, 2014.

David R.
Herndon
2014.12.09
15:57:32 -06'00'
District Judge
United States District Court

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