Reeves v. Hutchinson
Filing
18
ORDER DISMISSING CASE, granting 11 MOTION to Dismiss for Lack of Jurisdiction filed by Jacqueline Lashbrook. This action is DISMISSED without prejudice. The Clerk of Court shall enter judgment accordingly. Further, the Court denies a certificate of appealability. Signed by Judge David R. Herndon on 5/17/17. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL RAY REEVES,
Petitioner,
vs.
Civil No. 16-cv-1290-DRH-CJP
JACQUELINE LASHBROOK,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
In 2007, a jury in Massac County, Illinois, convicted petitioner Michael Ray
Reeves of three counts of aggravated criminal sexual assault and one count of
aggravated kidnapping.
He was sentenced to a total of fifty-two years
imprisonment. See, People v. Reeves, Rule 23 Order on Second Direct Appeal,
Doc. 8, Ex. 1, p. 27. 1
Reeves filed an amended petition for writ of habeas corpus pursuant to 28
U.S.C. §2254. (Doc. 8). He alleges five grounds related to ineffective assistance of
counsel and the denial of a fair trial.
This matter is now before the Court on respondent’s Motion to Dismiss
Habeas Corpus Petition. (Doc. 11). Respondent argues that the petition must be
dismissed because it is a successive petition and Reeves has not obtained
permission for leave to file under 28 U.S.C. §2244(b)(3). Petitioner responded to
the motion at Doc. 16.
1
The Court uses the document, exhibit and page numbers assigned by the CM/ECF system.
Page 1 of 7
Relevant Facts and Procedural History
Petitioner filed two direct appeals and several state court postconviction
proceedings. In the posture of this case, it is not necessary to delineate the claims
raised in his state court proceedings. It suffices to note that petitioner’s direct
appeal and all postconviction proceedings were unsuccessful and that he remains
in custody pursuant to the original judgment.
Reeves filed his first §2254 petition challenging his Massac County
convictions in this district in 2010. This Court dismissed the petition without
prejudice because state remedies had not been exhausted. Reeves v. Rednour,
Case No. 10-cv-869-DRH-DGW, Doc. 26.
Reeves filed his second §2254 petition challenging his Massac County
convictions in this district in 2012. That petition set forth twelve grounds for
relief, including ineffective assistance of counsel and denial of a fair trial. At the
time he filed that habeas petition, his appeal from the dismissal of his
postconviction petition was pending. Reeves admitted in the petition that he was
still pursuing state remedies as to at least eleven of his grounds.
Reeves v.
Atchison, Case No. 12-cv-630-DRH, Doc. 1. On preliminary review, this Court
determined that the petition was “mixed” and dismissed all but one of the
grounds without prejudice because state remedies had not been exhausted. The
petition was allowed to proceed on one ground, denial of petitioner’s right to a
speedy trial. Case No. 12-cv-630-DRH, Doc. 4. The speedy trial claim was denied
on the merits in January 2014.
Case No. 12-cv-630-DRH, Doc. 20.
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Reeves
appealed. The Seventh Circuit denied a certificate of appealability in May 2014.
Case No. 12-cv-630-DRH, Doc. 38.
Applicable Legal Standards
A person convicted in state court is generally limited to filing only one
petition for writ of habeas corpus in federal court. 28 U.S.C. §2244(a).
28 U.S.C. §2244(b)(1) provides that “A claim presented in a second or
successive habeas corpus application under section 2254 that was presented in a
prior application shall be dismissed.” However, a second or successive petition
may be filed asserting certain types of claims that have not been previously
presented:
A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.
§2244(b)(2).
Before filing a second or successive petition asserting a §2244(b) claim, a
petitioner “shall move in the appropriate court of appeals for an order authorizing
the district court to consider the application.” §2244(b)(3)(A).
Page 3 of 7
The district court is without jurisdiction to entertain a second or successive
petition that has been filed without the authorization of the court of appeals.
Burton v. Stewart, 127 S. Ct. 793, 799 (2007); Lambert v. Davis, 449 F.3d 774,
777 (7th Cir. 2006).
Analysis
Respondent represents that petitioner did not seek or obtain authorization
to file the current habeas petition.
otherwise.
Doc. 11, p. 2.
Petitioner does not claim
Rather, he suggests that the current petition is not “second or
successive” because his prior petitions were dismissed for failure to exhaust state
remedies.
Petitioner cites In re Gasery, 116 F.3d 1051 (5th Cir. 1997), for the
proposition that a §2254 petition filed after a previous petition has been
dismissed for failure to exhaust state remedies is not “second or successive.”
That general proposition is correct. Slack v. McDaniel, 120 S. Ct. 1595, 1605
(2000).
Reeves’ case does not fit within that general rule, however, because
Reeves’ second petition (Case No. 12-630-DRH) was not dismissed in its entirety;
the speedy trial claim was not dismissed but was decided on the merits.
The response to the second habeas petition clearly explained that, by
proceeding to adjudication on the merits of the speedy trial claim, Reeves ran the
risk of having a subsequent petition barred as successive. See, Case No. 12-630DRH, Doc. 9, pp. 6-7. Reeves filed a reply, Doc. 10, in which he argued only the
merits of his speedy trial claim. Reeves did not challenge the dismissal of his
Page 4 of 7
other claims or seek to have the entire petition dismissed without prejudice.
Further, on appeal to the Seventh Circuit, Reeves again argued only the merits of
his speedy trial claim and did not challenge the dismissal of his other claims.
Reeves v. Butler, Case No. 14-1093 (7th Cir.).
Both the instant petition and the petition filed in Case No. 12-630-DRH
challenge the same Massac County judgment. The petition filed in Case No. 12630-DRH was adjudicated on the merits as to one claim. A §2254 petition filed
after a previous petition was adjudicated on the merits is a successive petition.
Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003).
This Court does not have jurisdiction to consider Reeves’ petition unless he
obtains leave to file from the Seventh Circuit Court of Appeals. Burton, supra,
127 S. Ct. at 799.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, 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).
Where a habeas petition is dismissed on procedural grounds without
reaching the underlying constitutional issue, the petitioner must show 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
Page 5 of 7
debatable whether the district court was correct in its procedural ruling.” Slack
v. McDaniel, 120 S. Ct. 1595, 1604 (2000). Both components must be
established for a COA to issue.
Here, it is clear that this Court is without jurisdiction to entertain Reeves’
petition because it is a second or successive petition filed without the
authorization of the Court of Appeals. No reasonable jurist would find the issue
debatable. Accordingly, the Court denies a certificate of appealability.
Conclusion
Respondent’s Motion to Dismiss Habeas Corpus Petition (Doc. 11) is
GRANTED.
This action is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court
shall enter judgment accordingly.
IT IS SO ORDERED.
Judge Herndon
2017.05.17
17:05:13 -05'00'
DATE: May 17, 2017
United States District Judge
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Notice
If petitioner wishes to appeal the dismissal or denial of his petition, he may
file a notice of appeal with this court within thirty days of the entry of judgment.
Fed. R. App. P. 4(a)(1)(A). 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).
A certificate of appealability is required to appeal from the dismissal or
denial of a §2254 petition. Rule 11 of the Rules Governing §2254 Cases requires
that, when entering a final order adverse to the petitioner, the district court must
issue or deny a certificate of appealability.
Here, the Court has denied a
certificate. In order to appeal the dismissal or denial of his petition, petitioner
must obtain a certificate of appealability from the court of appeals.
Petitioner cannot appeal from this Court’s denial of a certificate of
appealability. Further, a motion to reconsider the denial does not extend the time
for appeal. See, Rule 11(a).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the thirty day appeal deadline.
Other motions, including a Rule 60 motion for relief from a final judgment, order,
or proceeding, do not toll the deadline for an appeal.
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