Myers v. Mueller

Filing 4

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 9/19/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT MYERS, No. B-86932,
Petitioner,
vs.

CIVIL NO. 16-cv-839-DRH

ROBERT MUELLER,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Robert Myers is currently incarcerated in the Centralia
Correctional Center in Centralia, Illinois, which is located within the Southern
District of Illinois. On July 25, 2016, petitioner filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the
Southern District of Illinois.
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
petition in the present case, the Court concludes that petitioner is not entitled to
relief, and the petition must be dismissed.

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Background
On December 19, 2008, Myers was convicted of a single count of attempted
first degree murder after a jury returned a verdict of guilty (Doc. 1 at 1-2). Myers
was sentenced to 22 years in the Illinois Department of Corrections on March 31,
2009 (Id.). Following his conviction and sentencing, Myers pursued a direct
appeal wherein he alleged that he was denied a fair trial due to the trial court’s
failure to question prospective jurors regarding certain issues (Id. at 2). After the
appellate court affirmed his conviction, he did not seek higher review (Id. at 2-3).
In March of 2011, Myers filed a post-conviction petition with the Fifth
Judicial District Appellate Court of Illinois (Id. at 3-4). In that petition, he argued
that his trial counsel was ineffective for failing to call a witness to testify at his
trial (Id.). He alleged that had the witness testified, she would have told the jurors
that during a break in the trial she heard the victim of Myers’s criminal actions
saying that she was unable to identify her assailant (Id. at 3-4, 20-24). Myers
alleged that the testimony would have proven exculpatory (Id.). Myers did not
appeal the denial of his post-conviction petition to the state’s highest court (Id. at
5). However, he did append an excerpt of the Appellate Court Order denying his
petition on the merits (Id. at 20-23).
Myers does not allege that he pursued any subsequent state law remedies.
Instead, Myers filed the present petition with this Court alleging ineffective
assistance of counsel.

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The Petition
In his present petition, Myers alleges that his counsel was ineffective,
causing him to reject a plea offer that contemplated a 15-year term of
imprisonment. (Doc. 1 at 8). Rather than taking the plea offer, Myers alleges that
he relied upon his counsel’s erroneous opinion that she could beat the case (Id.).
Myers was ultimately sentenced to 22 years in prison (Id. at 1). Myers also alleges
that he did not raise this particular aspect of ineffective assistance of counsel in
his original state post-conviction petition because his appointed counsel refused
to do so (Id. at 8, 16).
It is unclear from the present petition whether Myers is attempting to raise
an ineffective assistance of counsel claim against his trial counsel or his postconviction counsel, but regardless of which claim he intends to raise his claim
fails at this juncture. The Court will discuss why his claim would fail against his
trial counsel or his post-conviction counsel, in turn, below.
Discussion
Absent exceptional circumstances, a petitioner may not file a federal habeas
petition until he has exhausted all means of available relief under state law. See
28 U.S.C. § 2254(b); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v.

Boerkel, 526 U.S. 838, 839 (1999).
A petitioner “shall not be deemed to have exhausted the remedies
available...if he has the right under the law of the state to raise, by any available

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procedure, the question presented.” 28 U.S.C. § 2254(c). Before proceeding with a
review of a petition for habeas corpus on its merits
A district court must make two inquiries – 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,” 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.” Spreitzer v.

Schomig, 219 F.3d 639, 644-45 (7th Cir. 2000).
Petitioner did seek review of an ineffective assistance of counsel claim at the
state post-conviction level, but here he alleges ineffective assistance of counsel on
different grounds than those raised in his state post-conviction proceedings. To
the extent that he wishes to raise ineffective assistance of counsel of his trial
attorney in the present petition based on novel factual assertions, he may not do
so until he has exhausted his available state law remedies. Not only did he fail to
raise these specific grounds in his post-conviction pleadings, but he also failed to
appeal the denial of his post-conviction petition to the state’s highest court.
Accordingly, Myers’s petition shall be dismissed.
Second, to the extent that Myers seeks to levy an ineffective assistance of
counsel claim against his post-conviction counsel, his claim fails because he did
not raise it in state court and claims of this nature are explicitly barred by §
2254(i). 28 U.S.C. § 2254 (i) (“The ineffectiveness or incompetence of counsel

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during Federal or State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section 2254.”)
Based on the foregoing analysis, Myers’s Petition does not raise any claims
that are fit for review under Section 2254 at this juncture. Accordingly, his
petition shall be dismissed.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court
must “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” A certificate should be issued only where the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
In order for a certificate of appealability to issue, petitioner must show that
“reasonable jurists” would find this Court's “assessment of the constitutional
claims debatable or wrong.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where a petition is dismissed on procedural grounds without reaching the
underlying constitutional issue, the petitioner must show both that reasonable
jurists would “find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. at 484-85.
Here, no reasonable jurist would find it debatable whether this Court's
ruling on failure to exhaust state judicial remedies was correct. Furthermore, no
reasonable jurist would find it appropriate to allow an ineffective assistance of

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counsel claim to proceed based upon an allegation that post-conviction counsel
was ineffective because such a claim is explicitly prohibited by § 2254(i).
Accordingly, the Court denies a certificate of appealability.
Conclusion
Myers’s petition for writ of habeas corpus under 28 U.S.C. § 2254 is
DISMISSED without prejudice, and the Court shall not issue a certificate of
appealability.
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: September 19, 2016.

Digitally signed by
Judge David R.
Herndon
Date: 2016.09.19
15:12:17 -05'00'
United States District Judge

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