Nichols v. IDOC Director et al

Filing 6

ORDER DISMISSING CASE with prejudice as untimely. Alternatively, the action is DISMISSED with prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to comply with an order of the Court. Signed by Judge David R. Herndon on 2/28/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMETRIUS M. NICHOLS,
No. N-61355,
Petitioner,

–01101-DRH

v.
IDOC DIRECTOR, and
KIMBERLY BUTLER
Defendants.
MEMORANDUM AND ORDER
HERNDON

Petitioner Demetirus M. Nichols, an inmate in the custody of the Illinois
Department of Corrections and currently housed at Menard Correctional Center,
brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is challenging a March 2011 conviction for aggravated battery on a
correctional officer. After conducting a preliminary review pursuant to Rule 4 of
the Rules Governing Section 2254 Cases in the United States District courts, the
Court concluded that the § 2254 Petition was untimely. (Doc. 5). Nonetheless,
the Court allowed Petitioner until February 2, 2017 to present his position on the
issue of timeliness and show cause why his Petition should not be dismissed as
time-barred. Id. The Court also directed Plaintiff to pay his filing fee on or before
February 2, 2017. Id. The Order included the following specific directives and
warnings:

For the reasons discussed herein, it appears that the Petition is
untimely. Nonetheless, as noted above, prior to dismissing the
Petition based on the statute of limitations, the Court will provide
Petitioner with an opportunity to present his position on this issue.
Accordingly, the Court will allow Petitioner to supplement his
pleadings and to show cause why his claims are not barred from
federal review by the one-year statute of limitations found in 28
U.S.C. § 2244(d)(1).
IT IS HEREBY ORDERED that:
(1)

(2)

(3)

(4)

Not later than
, Petitioner is
DIRECTED to pay the $5.00 filing fee. Failure to
comply shall result in dismissal of this action for failure
to prosecute.
Not later than
, Petitioner is
DIRECTED to show cause why his petition should not
be dismissed as barred by the one-year statute of
limitations found in 28 U.S.C. § 2244(d)(1).
In
particular, Petitioner should specify when he underwent
the “major” surgeries referenced in his Petition and how
those surgeries prevented him from timely filing the
instant Petition.
Petitioner should label this document a “Supplement to
Petition for a Writ of Habeas Corpus under § 2254” and
he should be sure to declare that any statements he
makes in the supplement are made under penalty of
perjury. 28 U.S.C. § 2242.
If Petitioner does not submit a Supplement as directed
in this order by
the Court will
dismiss his Petition with prejudice as untimely under
Rule 4 of the Rules Governing Section 2254 Cases.

(Doc. 5, pp. 8-9).
To date, Petitioner has not complied with the Court’s directives. Petitioner
has not filed a supplemental pleading addressing the timeliness issues. Further,
Petitioner has not paid the applicable filing fee.

Accordingly, for the reasons discussed in the Court’s January 4, 2017
Order (Doc. 5), the above captioned action is DISMISSED with prejudice as
untimely. Alternatively, the action is DISMISSED with prejudice pursuant to Fed.
R. Civ. P. 41(b) for failure to comply with an order of the Court. No certificate of
appealability will issue from this decision. The Clerk of the Court is DIRECTED
to enter judgment accordingly.
IT IS SO ORDERED.
Signed this 28th day of February, 2017.

Judge Herndon
2017.02.28
19:09:01 -06'00'