Jordan v. Lamb

Filing 5

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 1/3/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VALDEZ JORDAN,
Petitioner,
vs.

CIVIL NO. 16-cv-1297-DRH

NICHOLAS LAMB,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in Lawrence Correctional Center, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254 to challenge the
constitutionality of his sentence. The underlying Petition was filed on December
1, 2016.

Petitioner challenges his sentence on the grounds of prosecutorial

misconduct and ineffective assistance of counsel. (Doc. 1).
Petitioner was sentenced to 35 years and 30 years concurrently on a charge
of First Degree Murder and Armed Robbery on July 5, 2000 in Madison County,
Illinois. (Doc. 1, p. 1).

He pleaded not guilty, but a jury found him guilty. (Doc.

1, p. 2). Petitioner appealed the judgment to the Appellate Court of Illinois, Fifth
Judicial District, which affirmed the trial court result on June 7, 2002. Id. The
Supreme Court of Illinois denied Petitioner’s appeal on October 2, 2002. (Doc. 1,
p. 3). Petitioner filed a motion for post-conviction relief on April 2, 2003. Id.
That motion is still pending. (Doc. 1, p. 4).

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Discussion
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
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.”
Before a habeas action may be heard in federal court, a petitioner is
required to exhaust his available remedies in state court, or else show cause and
prejudice for the failure to exhaust. 28 U.S.C. § 2254(b)(1); McAtee v. Cowan,
250 F.3d 506, 508-09 (7th Cir. 2001). To exhaust his remedies, a state prisoner
must fairly present his claim in each appropriate state court including a state
supreme court with powers of discretionary review. Byers v. Basinger, 610 F.3d
980, 985 (7th Cir. 2010); Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that state prisoners
“must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established appellate review
process”); Spreitzer v. Schomig, 219 F.3d 639, 644-45 (7th Cir. 2000).

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prisoner need not pursue all separate state remedies that are available to him but
must give “the state courts one fair opportunity to pass upon and correct the
alleged violations.” McAtee, 250 F.3d at 509.

Further, “[i]f a prisoner fails to

present his claims in a petition for discretionary review to a state court of last

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resort, those claims are procedurally defaulted.” Rodriguez v. Scillia, 193 F.3d
913, 917 (7th Cir. 1999); see also O'Sullivan, 526 U.S. at 848.
Petitioner has affirmatively stated here that he has not exhausted his state
court remedies. He argues that the state court’s inexplicable delay in ruling on his
motion for post-conviction relief excuses the exhaustion requirement in this case.
(Doc. 2).
Federal habeas corpus relief is not the appropriate remedy for an allegation
that a state court has inordinately delayed ruling on a collateral attack on a
conviction. Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997) (quoting
Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996)).

However,

“inordinate, unjustifiable delay in a state-court collateral proceeding excuses the
requirement of petitioners to exhaust their state-court remedies before seeking
federal habeas corpus relief.” Jackson, 112 F.3d at 881 (citing, e.g., Lane v.
Richards, 957 F.2d 363, 365 (7th Cir.1992)). Petitioner has alleged that he has
been awaiting a ruling on his motion for post-conviction relief for more than 13
years. At the pleading stage, petitioner has sufficiently alleged that this amount of
time may constitute an inordinate, unjustifiable delay that could potentially
excuse the exhaustion requirement.
Disposition
Accordingly, IT IS HEREBY ORDERED that respondent shall answer the
Petition or otherwise plead within thirty (30) days of the date this order is
entered. This preliminary order to respond does not, of course, preclude the State

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from making whatever waiver, exhaustion, or timeliness argument it may wish to
present.

Service upon the United States Attorney for the Southern District of

Illinois, 750 Missouri Avenue, East St. Louis, Illinois shall constitute sufficient
service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Clifford J. Proud for disposition, as contemplated
by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to
such a referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven days after a transfer or other change in address occurs.
IT IS SO ORDERED

Judge Herndon
2017.01.03
12:45:46 -06'00'

DATED: January 3, 2017

United States District Court

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