Fletcher-Bey v. Melvin

Filing 7

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 6/28/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTONIO D. FLETCHER-BEY,
Petitioner,
v.

Case No. 17-cv-0543-DRH

MICHAEL P. MELVIN,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, 1 currently incarcerated in Pontiac Correctional Center, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254 requesting that the Court
reverse his state court conviction because the state did not prove an element of
the crime beyond a reasonable doubt, or in the alternative, grant him a new trial,
or reduce his sentence because the parole statute in effect at the time was
ambiguous. (Doc. 1, p. 19).
Petitioner was sentenced to 28 years’ imprisonment on January 30, 2007
for aggravated kidnapping in violation of 720 ILCS 5/10-2(a)(3) after a jury trial.
(Doc. 1, pp. 1-2). He appealed on the ground that his waiver of counsel was not
voluntary; the appellate court denied his petition on May 19, 2009 and his
petition for rehearing on July 27, 2009. (Doc. 1, p. 2). The Illinois Supreme
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Petitioner has consistently identified himself in this case as “Antonio Fletcher-Bey” but Illinois
Department of Corrections records and records in this Court indicate that he is also known as
“Antonio Fletcher.”

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Court denied his petition for leave to appeal on November 25, 2009. (Doc. 1, p.
3). Petitioner filed a motion seeking post-conviction relief in the state court on
December 31, 2008, which he amended on February 19, 2009. Id. That motion
raised two issues: 1) Petitioner’s sentence for aggravated kidnapping violated the
proportionate penalties clause; 2) the state failed to prove the secrecy element of
aggravated kidnapping. (Doc. 1, p. 4). That petition was denied some time in the
spring of 2009. Id. Petitioner filed a second petition for post-conviction relief in
state court on April 5, 2010 alleging that 1) voir dire was improper; 2) the court
failed to admonish Petitioner of his right to file post-trial motions; 3) the
prosecution failed to prove secret confinement element of aggravated kidnapping;
4) the prosecution made an improper closing argument; and 5) ineffective
assistance of appellate counsel. Id. That petition was denied on May 22, 2013.

Id. Petitioner filed a third petition in the state court on June 10, 2016. (Doc. 1,
p. 5). That motion argued the state violated the hearsay exception rule and that
the MSR statute was ambiguous at the time of Petitioner’s sentence. Id.

The

Court of Appeals denied that petition on November 1, 2016 and rehearing was
denied on December 16, 2016. Id.
The Petition
Petitioner alleges that his state court conviction was obtained without proof
beyond a reasonable doubt that the secrecy element of aggravated kidnapping was
met. (Doc. 1, p. 8).

Petitioner also argues that the state court judge did not

adequately allow him to inquire into the racial biases of the jurors, despite the

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fact that Petitioner is a black man accused of committing a crime against a white
woman. (Doc. 1, p. 10). Next, Petitioner states that his waiver of counsel was not
unequivocal, unambiguous, or voluntary. (Doc. 1, p. 12). Petitioner also believes
he is entitled to relief because he alleges the prosecution committed reversible
error during summation. (Doc. 1, p. 14). Ground Five alleges that the conviction
was obtained in violation of the hearsay exception rule. (Doc. 1, p. 16). Finally,
Petitioner’s last ground is that a term of supervised release was imposed pursuant
to an ambiguous statute that has since been revised. Id. Petitioner requests that
his conviction be reversed, or in the alternative, that he receive a new trial, or
have his sentenced reduced. (Doc. 1, p. 19).
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.”
Petitioner’s allegations raise a colorable inference that his constitutional
rights may have been violated. However, there are a number of preliminary issues
the Court must address when reviewing a Petition pursuant to § 2254. According
to § 2244(d)(1), a person convicted in state court must file his federal habeas
petition within one year of the latest of:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
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(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
The one-year statute of limitations is tolled during the pendency of a “properlyfiled” state post-conviction petition. 28 U.S.C. § 2244(d)(2). Equitable tolling may
be available in appropriate cases, but a petitioner must show “‘(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631,
645-649 (2010) citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

The

Supreme Court has emphasized that “the circumstances of a case must be
‘extraordinary’ before equitable tolling can be applied.” Holland, 560 U.S. at 652.
Additionally, 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
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(2004); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Spreitzer v.

Schomig, 219 F.3d 639, 644-45 (7th Cir. 2000). Further, “[i]f a prisoner fails to
present his claims in a petition for discretionary review to a state court of last
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.
There is some indication that the Petition is untimely and/or unexhausted.
It appears that Petitioner appealed and filed post-conviction motions continuously
until his second post-conviction motion was denied on May 22, 2013, after which
he took no further action until 2016. (Doc. 1, p. 4). Even assuming that the 2013
motion for post-conviction relief was timely, the one-year statute of limitations
would have expired at the very latest around May 22, 2014. However, Petitioner
has also indicated that he filed a subsequent motion for post-conviction relief in
2016, and it appears that some of the issues raised in the Petition were raised
there for the first time. (Doc. 1, p. 5). Petitioner states that the 2016 petition is
still pending, although he also states that he originally drafted this Petition on
February 20, 2017, (Doc. 1, p. 7), and the public records from Madison County
indicate that an appeal was terminated in March 2017. There is therefore some
ambiguity over whether the 2016 motion for post-conviction relief was still
pending at the time the Petition was filed on May 22, 2017, or whether it was
properly exhausted. Additionally, without the full state court record, the Court
cannot determine if the issues raised in this Petition were properly raised in the
2016 motion for post-conviction relief, raised earlier in Petitioner’s other motions

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and barred by the statute of limitations, or whether there are any other
circumstances that would serve to toll the statute of limitations.

For these

reasons, the Court finds that it would be prudent to order a Response so that it
may consider these issues, and any other issues Respondent would like to raise,
on a more developed record.
IT IS HEREBY ORDERED that Respondent shall answer the petition or
otherwise plead within thirty days of the date this order is entered.

This

preliminary order to respond does not, of course, preclude the State from making
whatever waiver, exhaustion, or timeliness argument it may wish to present.
Service upon the Illinois Attorney General, Criminal Appeals Bureau, 100 West
Randolph, 12th Floor, Chicago, Illinois 60601 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. Petitioner’s two motions “for Production of Documents in
Lieu of Amending Petition” are referred to Magistrate Judge Proud for disposition.
(Doc. 5) (Doc. 6).
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

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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.
Signed this 28th day of June, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.06.28
11:33:19 -05'00'
UNITED STATES DISTRICT JUDGE

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