Robinson v. State of Illinois

Filing 5

ORDER DISMISSING CASE without prejudice. Signed by Judge David R. Herndon on 2/17/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FLOYD ROBINSON, # A66413,
Petitioner,
Case No. 16-cv-1248-DRH

v.
STATE OF ILLINOIS,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Floyd Robinson, an inmate who is currently incarcerated in
Lawrence Correctional Center, brings this habeas corpus action pursuant to 28
U.S.C. § 2254, in order to challenge certain actions taken by the Fifth District
Appellate Court of the State of Illinois. (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 Petition in the present case,
the Court concludes that Petitioner is not entitled to relief, and the Petition shall
be DISMISSED.

Background
In 2012, Petitioner pleaded guilty to charges of retail theft and escape and
was sentenced to 3 years and 10 years for these offenses, with the terms to run
concurrently. (Doc. 1, at 1). Petitioner moved pro se to withdraw his guilty plea
on May 2, 2012, and his original defense counsel also filed a motion to reconsider
and a motion to withdraw Petitioner’s guilty plea on May 11, 2012. (Id. at 1-2).
Petitioner’s original defense counsel was removed from the case on July 31, 2012,
and new defense counsel was assigned to Petitioner’s case and directed to file an
amended motion to withdraw guilty plea.

(Id. at 2).

Without Petitioner’s

knowledge, his new counsel filed an amended motion to withdraw his guilty plea
and vacate judgment on October 17, 2010, and it was denied the same day. Id.
Petitioner tendered a post-conviction petition on November 6, 2012 with the 20th
Judicial Circuit Court of the State of Illinois. Id. He was appointed counsel, who
filed an amended petition on August 13, 2013.

Id.

dismissed on August 8, 2014 following a hearing.

Petitioner’s petition was
Id.

After his motion to

reconsider in response to the dismissal was ignored, Petitioner filed a notice of
appeal. Id.
Petitioner requested and was granted leave to proceed pro se on appeal.
(Id. at 3). When he filed his appellate brief, it was rejected because of its excessive
length. Id. He sought leave to exceed the page limit, but his request was denied.
Id. He then requested an extension of time to file his brief and was given a “final
deadline” of November 16, 2015 pursuant to an order entered on September 16,

2015.

Id.

He then submitted another request to the appellate court for an

extension of the briefing deadline to December 16, 2015. Id.
Petitioner presented his brief to a guard for mailing on November 13, 2015.
Id.

The appellate court denied Petitioner’s request for an extension and

dismissed his appeal for want of prosecution on November 17, 2015. Petitioner
filed several motions seeking reconsideration of the decision arguing that his brief
was timely filed. (Id. at 4). One such motion was denied on December 11, 2015,
and the rest were ignored. Id.
Petitioner sent a notice of appeal to the appellate court and a petition for
leave to appeal to the Illinois Supreme Court on January 7, 2016. Id. Petitioner
was denied leave to appeal on March 30, 2016, and his efforts to move for
reconsideration were unavailing. (Id. at 5). On May 4, 2016, the Illinois Supreme
Court issued a mandate to the appellate court, and the appellate court dismissed
Petitioner’s appeal on May 13, 2016. Id. Petitioner filed a notice of appeal to the
Illinois Supreme Court on September 9, 2016, signaling his intention to appeal to
this federal court. Id.
Discussion
Petitioner challenges the Fifth District Appellate Court’s decision dated
November 17, 2015. There, the state appellate court dismissed his appeal from
the circuit court’s decision to deny his post-conviction petition in Case No. 11-CF825. (Id. at 2-3). Petitioner alleges that his appellate brief was timely submitted
under the “mailbox rule,” and the appellate court erred in dismissing the appeal

for want of prosecution.

(Id. at 4).

Petitioner does not challenge the

constitutionality of his conviction, sentence, or present confinement. Instead, he
seeks to “have his timely filed brief heard in the Fifth District Appellate Court on
the Merits.” (Id. at 6).
Petitioner does not seek a determination that his custody violates the
Constitution, laws, or treaties of the United States, as is the purview of § 2254.
Petitioner instead asks this Court to order the state appellate court to hear
Petitioner’s claims. Such a request may be appropriate for an appeal to the state
supreme court or a petition for leave to appeal in the United States Supreme
Court. However, this Court is not authorized to grant the relief Petitioner now
seeks under § 2254. The Court may “entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” See 28 U.S.C. § 2254(a) (emphasis added).
Even if this Court had authority to grant the relief Petitioner now seeks
under § 2254, it cannot grant this relief against the “People of the State of Illinois.”
Petitioner has failed to name the proper respondent.

Rule 2 of the Rules

Governing § 2254 Cases in United States District Courts provides that the petition
must name as respondent the state officer who has custody of the Petitioner.
Since Petitioner is incarcerated in Lawrence Correctional Center, the proper
respondent is the warden of that facility rather than the “People of the State of
Illinois.”

Disposition
IT IS HEREBY ORDERED that the Petition is summarily DISMISSED
without prejudice. This dismissal is without prejudice in case Petitioner exhausts
all state court remedies and eventually seeks to argue “that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254.
Should Petitioner desire to appeal this Court’s ruling dismissing his
petition for a writ of habeas corpus, he must first secure a certificate of
appealability, either from this Court or from the Seventh Circuit 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 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 his appeal will
succeed, Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), he must show
“something more than the absence of frivolity” or the existence of mere “good
faith” on his 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 Petitioner
has not brought cognizable claims under 28 U.S.C. § 2254 or named the
appropriate respondent, so he 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.
IT IS SO ORDERED.
Signed this 17th day of February, 2017.

Judge Herndon
2017.02.17
15:31:20 -06'00'
UNITED STATES DISTRICT JUDGE