Johnson v. Foster

Filing 3

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 10/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATHANIEL JOHNSON,
No. B84311,
Petitioner,
v.

No. 3:

–00909-DRH

CRAIG FOSTER
Defendant.
MEMORANDUM AND ORDER

Petitioner Nathaniel Johnson, an inmate in the custody of the Illinois
Department of Corrections and currently housed at Graham Correctional Center,
brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is challenging an Illinois state court conviction. The Petition was filed
on August 25, 2017.
This matter is now before the Court for a preliminary review of the § 2254
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.”

1

–
In August 2003, the State of Illinois charged Petitioner with one count of
first-degree murder and one count of aggravated arson. The charges stemmed
from a fire allegedly set by Petitioner in Centreville on January 17, 2003, that
resulted in the death of 10–year–old Treyveon Barnes, the son of Petitioner’s
estranged wife. Id. On December 16, 2004, Petitioner entered a negotiated plea of
guilty to an amended charge of aggravated arson, filed that day, in exchange
for, inter alia, the State dropping the charge of first-degree murder. Id. Petitioner
received the joint recommended maximum sentence of 30 years in prison. Id.
In January 2005, Petitioner filed a motion for reduction of sentence that
was ultimately unsuccessful. In April 2006, Petitioner filed a pro se postconviction
petition. Id. An amended postconviction petition was filed by counsel on June 1,
2010. Id. The postconviction petition was dismissed and Petitioner appealed to
the Illinois Appellate Court. Id. On May 7, 2014, the Illinois Appellate Court
issued an order affirming the circuit’s court’s dismissal of the amended
postconviction petition. Id. The Illinois Supreme Court denied leave to appeal on
September 24, 2014.

1

The following information is taken from the “procedural Background” section of the Petition
(Doc. 1, pp. 12-13) and from the following decisions: (1) People v. Johnson, 2014 WL 1877629
(Ill. App. Ct. 2014) and (2) People v. Johnson, 20 N.E. 3d 1259 (2014).

Petitioner then filed a request for leave to file a successive petition for
postconviction relief with the state trial court. The request was denied on August
13, 2015. Petitioner timely appealed the trial court’s decision to the state
appellate court. According to the Petition, that appeal is still pending (hereinafter,
“2015 Appeal”). (Doc. 1, p. 14 (stating that Petitioner’s 2015 Appeal is “currently
awaiting appointment of counsel to prepare and file necessary briefs; No. 5-150381.”)).
Prior 2254 Petition
On December 21, 2015, Petitioner filed an action for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (“original Petition”). See Johnson v. Polley,
3:15-cv-1387-DRH. At the time of filing, Petitioner’s 2015 Appeal was pending in
the Illinois Appellate Court. Johnson v. Polley, 3:15-cv-1387-DRH, Doc. 6.
Accordingly, the undersigned judge dismissed the action, without prejudice, for
failure to exhaust state court remedies. Id. On August 1, 2017, Petitioner filed a
Motion to Reinstate Petition, claiming he had exhausted his state court remedies.

Johnson v. Polley, 3:15-cv-1387-DRH, Doc. 19. The Court denied the motion,
explaining that, if Petitioner’s state court remedies had been exhausted, the
proper course of action is to file a new § 2254 petition. Johnson v. Polley, 3:15-cv1387-DRH, Doc. 20.

Analysis
“Section 2254 generally requires state prisoners to exhaust available state
court remedies before seeking habeas review in federal court.” Gacho v. Butler,
792 F.3d 732, 735 (7th Cir. 2015); see 28 U.S.C. § 2254(b)(1)(A). “[T]he
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, 526 U.S. 838, 845 (1999); see 28 U.S.C. §
2254(c). Exhaustion is excused only if the “there is an absence of available State
corrective process,” or “circumstances exist that render such process ineffective to
protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).
The Motion to Reinstate that was recently filed in the original Petition
suggests that Petitioner has exhausted his state court remedies. However, the
Petition filed in the instant case clearly states that the 2015 Appeal is still
pending. (Doc. 1, p. 14 (stating that Petitioner’s 2015 Appeal is “currently
awaiting appointment of counsel to prepare and file necessary briefs; No. 5-150381.”)). Further, the Illinois Appellate Court has confirmed that the 2015 Appeal
is presently pending, with briefing due on December 11, 2017.
Because the 2015 Appeal is still pending and Petitioner has failed to argue
that exhaustion should be excused pursuant to 28 U.S.C. § 2254(b)(1)(B), as with
the original Petition, Petitioner has failed to exhaust his state judicial remedies.
Accordingly, the Petition shall be dismissed without prejudice to the claims being
refiled, if necessary, after Petitioner has fully exhausted his claims in the state
courts.

DISPOSITION
For all the foregoing reasons, the Petition for a Writ of Habeas Corpus (Doc.
1) is DISMISSED WITHOUT PREJUDICE for failure to exhaust state court
remedies pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
Should Petitioner desire to appeal this Court's ruling, 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 is
not entitled to relief at this time because he has yet to exhaust his state court
remedies. 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 enter
judgment accordingly and close this case.
IT IS SO ORDERED.

Digitally signed by
Judge David R. Herndon
Date: 2017.10.24
12:06:05 -05'00'
UNITED STATES DISTRICT JUDGE