Croft v. Lamb
Filing
2
ORDER DISMISSING CASE: IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice. The CLERK is directed to CLOSE this case. As this action wasopened in error, Petitioner will not be responsible for a filing fee. The CLERK is hereby DIRECTED to send a copy of a 28 U.S.C. § 2254 petition form to Petitioner at the address listed in CM-ECF to assist him should he choose to file a § 2254 petition at a later time. Signed by Judge David R. Herndon on 7/21/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STANFORD CROFT, JR., M21886,
Petitioner,
v.
No. 3:17-cv-00688-DRH
NICHOLAS LAMB,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Stanford Croft, who is currently incarcerated in Lawrence
Correctional Center in Sumner, Illinois, filed a Notice of Intent to File Habeas
Corpus and Request of Extension (“Notice”) (Doc. 1) on June 30, 2017,
mistakenly labeled in CM-ECF as a Petition for Writ of Habeas Corpus.
The
instant case was opened as an action pursuant to 28 U.S.C. § 2254 upon receipt
of Petitioner’s Notice, despite a petition not having been filed. This was in error,
as such a notice cannot commence a § 2254 proceeding.
“A 2254 case is
commenced on the date the petition is filed.” Holman v. Gilmore, 126 F.3d 876,
880 (7th Cir. 1997) (“[A] case is commenced by filing a petition seeking
substantive relief.”); see also Woodford v. Garceau, 538 U.S. 202, 208, 123 S.Ct.
1398 (2003) (“[A] habeas suit begins with the filing of an application for habeas
corpus relief-the equivalent of a complaint in an ordinary civil case.”).
Preliminary documents filed prior to a § 2254 petition, like Petitioner's
Notice, are insufficient to initiate § 2254 proceedings. Cf. Holman, 126 F.3d at
879 (“A motion ... for appointment of counsel is a prelude to a collateral attack ...
but is not itself a collateral attack.”); Fierro v. Cockrell, 294 F.3d 674, 681 (5th
Cir. 2002) (motion for authorization to file successive petition “is merely a
preliminary motion that does not itself initiate habeas proceedings, [so] it cannot
satisfy the statute of limitations established under [2254]”). This action will
therefore be administratively closed, because it was opened without a habeas
petition being filed, and it is still without a petition.
Petitioner is advised that, should he seek to bring a habeas action in this
Court at a later date, he must first exhaust his state judicial remedies.
28
U.S.C.A. § 2254(b)(1) requires that state judicial remedies be exhausted before a
federal court can grant habeas relief:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that––
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B)(i) there is an absence of available State corrective process;
or (ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
Id.
The exhaustion requirement means that, before seeking habeas relief, a
petitioner is required to bring his claim(s) through “one complete round of the
State's established appellate review process” because “the exhaustion doctrine is
designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the federal courts.”
O'Sullivan v. Boerckel, 119 S.Ct. 1728 (1999); see also 28 U.S.C. § 2254(c).
Under the Illinois two-tiered appeals process, petitioners such as Croft must fully
present their claims not only to an intermediate appellate court, but also to the
Illinois Supreme Court, which offers discretionary review in cases such as this
one. Id. at 1732-1733.
Finally, 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 debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 478 (2000). Here, there is no petition, and there is nothing to suggest that
jurists of reason would debate the correctness of the Court's ruling or find a valid
claim of the denial of a constitutional right. As such, the Court declines to issue a
certificate of appealability.
IT IS THEREFORE ORDERED that this action is DISMISSED without
prejudice.
The CLERK is directed to CLOSE this case.
As this action was
opened in error, Petitioner will not be responsible for a filing fee.
The CLERK is hereby DIRECTED to send a copy of a 28 U.S.C. § 2254
petition form to Petitioner at the address listed in CM-ECF to assist him should
he choose to file a § 2254 petition at a later time.
IT IS SO ORDERED.
Signed this 21st day of July, 2017.
Digitally signed by
Judge David R.
Herndon
Date: 2017.07.21
12:57:40 -05'00'
UNITED STATES DISTRICT JUDGE
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