Kitterman v. Garnett

Filing 39

ORDER denying 38 Motion for Bond. IT IS THEREFORE ORDERED that this action is STAYED until further order of this Court. IT IS FURTHER ORDERED that Petitioner SHALL NOTIFY the Court in writing when the Illinois Appellate Court, Fifth District, iss ues an order or opinion disposing of either of his pending appeals, within 14 days of the date the order or opinion is entered, and shall SUBMIT a copy of the order or opinion issued by the Appellate Court. The Court will then assess whether to lift the stay and whether further proceedings are appropriate. IT IS FURTHER ORDERED that Petitioner SHALL NOTIFY the Court in writing if he is released from custody while this action is pending. IT IS FURTHER ORDERED that Petitioners motion for bond during stay(Doc. 38) is DENIED. Signed by Judge David R. Herndon on 7/27/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHANE A. KITTERMAN,
No. B-80577,
Petitioner,
vs.

Case No. 16-cv-1134-DRH

JASON GARNETT,
Respondent.
MEMORANDUM AND ORDER STAYING CASE
HERNDON, District Judge:
This case is before the Court for consideration of whether to stay this case
at the suggestion of the United States Court of Appeals, Seventh Circuit, upon
remand of this matter. (Doc. 36). Also before the Court is Petitioner’s motion for
bond during stay (Doc. 38), filed on July 21, 2017.
Previously, Petitioner was ordered by this Court to submit a written status
report including information on his now-pending appeals before the Illinois
Appellate Court, Fifth District, and his projected release date, to aid the Court in
considering whether to impose a stay of this habeas action. Petitioner provided
this status information in his motion for bond. (Doc. 38, p. 10).
Petitioner has two active appeals. Appeal No. 5-15-0408 is a consolidated
appeal from St. Clair County Case Nos. 12-CF-1204 1 and 15-CF-373 (convictions

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The question of whether Petitioner had a duty to register as a sex offender in light of his 1995 plea
agreement was noted by the trial court in No. 12-CF-1204 as an issue reserved for appeal. (See Doc. 9, p.
3).

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pursuant to guilty pleas). Petitioner’s brief was filed in April 2016, and the State’s
brief is due by August 31, 2017. (Doc. 38, p. 10). Appeal No. 5-15-0373 is from
St. Clair County Case No. 14-CF-1422 (conviction after a jury trial). Petitioner’s
brief in that case is due to be filed on July 31, 2017. Petitioner states that his
projected release date from the custody of the Illinois Department of Corrections
is May 26, 2018. Id.
In light of the information confirming that Petitioner’s appeals in state court
are still pending, the undersigned finds it appropriate to stay this case pending
the outcome of one or more of the appeals.
Turning to the motion for bond (Doc. 38), the grounds presented by
Petitioner in arguing for his release during the pendency of this habeas action all
relate to the merits of his claims in this case. Because a stay shall be imposed
due to the fact that Petitioner has not yet exhausted his state court remedies
following his criminal convictions, it would be inappropriate and inconsistent with
the stay for the Court to order a response at this time or otherwise delve into the
merits of Petitioner’s challenge to the state court proceedings. See 28 U.S.C. '
2254(b)(1)(A); Byers v. Basinger, 610 F.3d 980, 985 (7th Cir. 2010) (“We cannot
review a habeas petitioner's constitutional issue unless he has provided the state
courts with an opportunity to resolve it ‘by invoking one complete round of the
state's established appellate review process.’” (quoting O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999)).

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Furthermore, while a federal court in habeas corpus cases has inherent
power to admit an applicant to bail pending the final decision in his case, this is
“a power to be exercised very sparingly.” Cherek v. United States, 767 F.2d 335,
337 (7th Cir. 1985).
The reasons for parsimonious exercise of the power should be
obvious. A defendant whose conviction has been affirmed on appeal
(or who waived his right of appeal, as by pleading guilty, or by
foregoing appeal after being convicted following a trial) is unlikely to
have been convicted unjustly; hence the case for bail pending
resolution of his postconviction proceeding is even weaker than the
case for bail pending appeal.

Cherek, 767 F.2d at 337.
Here, Petitioner was found guilty by a jury in one case, and pled guilty in
the two other cases now on appeal. These factors weigh against a conclusion at
this stage that he was “convicted unjustly.” Petitioner has not demonstrated any
exceptional circumstances warranting his release before the Court can fully
consider the merits of his petition or render a final decision in this case.
Accordingly, the motion for bond shall be denied.
Disposition
IT IS THEREFORE ORDERED that this action is STAYED until further
order of this Court.
IT IS FURTHER ORDERED that Petitioner SHALL NOTIFY the Court in
writing when the Illinois Appellate Court, Fifth District, issues an order or opinion
disposing of either of his pending appeals, within 14 days of the date the order or
opinion is entered, and shall SUBMIT a copy of the order or opinion issued by the

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Appellate Court. The Court will then assess whether to lift the stay and whether
further proceedings are appropriate.
IT IS FURTHER ORDERED that Petitioner SHALL NOTIFY the Court in
writing if he is released from custody while this action is pending.
IT IS FURTHER ORDERED that Petitioner’s motion for bond during stay
(Doc. 38) is DENIED.
IT IS SO ORDERED.

Digitally signed by
Judge David R.
Herndon
Date: 2017.07.27
12:24:05 -05'00'

Dated: July 27, 2017

United States District Judge

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