Nash v. Warden of Logan Correctional Center

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 10/17/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CRYSTAL KAY NASH,
No. R-85421,
Petitioner,
v.

No. 3:17-cv-00926-DRH

WARDEN of LOGAN CORRECTIONAL
CENTER,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Crystal Kay Nash, a state prisoner, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges her 2009 Edwards
County, Illinois, conviction for drug-induced homicide. She was also convicted of
a drug possession charge, but does not appear to be challenging that conviction.
(Doc. 1, p. 14). She filed this action on August 25, 2017, in the Central District of
Illinois. On August 30, 2017, that court transferred the action to this District
pursuant to 28 U.S.C. § 2241(d), because Edwards County is located within the
Southern District of Illinois.
This case is now before the Court for a preliminary review of the Petition
pursuant to Rule 4 of the Rules Governing Section 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.” After
carefully reviewing the Petition and the record of Petitioner’s 2016 habeas action
in this Court, out of an abundance of caution, the Court concludes that a response
is appropriate.
Background
Petitioner pled guilty to the charges of drug-induced homicide and
possession of a controlled substance. On December 15, 2009, she was sentenced
to a total of 20 years in prison. (Doc. 1, p. 1). Her Petition indicates that she did
not directly appeal the judgment or sentence. 1 (Doc. 1, pp. 2-4).
She did seek post-conviction relief in state court, without success. (Doc. 1,
p. 5-6). Neither the instant Petition nor the record in her previous federal habeas
case discloses the date when the post-conviction petition was filed or denied. She
states that she did not appeal the denial of her post-conviction petition to the
Illinois Court of Appeals or the Supreme Court of Illinois. See Nash v. Burke,
Case No. 16-cv-313-DRH (S.D. Ill. Doc. 7).
In March 2016, Petitioner filed an action in this Court seeking habeas
corpus relief under 28 U.S.C. § 2254, Nash v. Burke, Case No. 16-cv-313-DRH.
That action was dismissed without prejudice on April 13, 2016. Petitioner raised
4 grounds for relief in that earlier action: The State did not ensure that she was
reviewed by a mental health care professional; trial counsel was ineffective; the
State destroyed evidence that Petitioner believed to be exculpatory; and the State
Petitioner brought an earlier habeas corpus action in this Court, Nash v. Burke, Case
No. 16-cv-313-DRH. Some of the background information is taken from that petition,
because the current Petition does not include much detail.
1

violated her right to counsel by questioning her on 3 occasions when her attorney
was not present. Only the first 2 of these grounds had been included in the state
post-conviction challenge. This Court dismissed the first habeas action based on
a finding that Petitioner had failed to exhaust her available remedies in the state
courts of Illinois before seeking federal habeas corpus relief. Nash v. Burke, Case
No. 16-cv-313-DRH (S.D. Ill. Doc. 7).
The Petition
Petitioner raises 3 grounds in the present petition: (1) evidence that could
have helped her case was not used in court (specifically, Andrew Heid and Joshua
Nash destroyed a medicine bottle by putting it in the trash) (Doc. 1, p. 5); (2) she
was subjected to a coercive interrogation where she “was questioned for hours
after [her] son died until [she] admitted [she] gave him the meds” (Doc. 1, p. 6);
(3) Petitioner’s attorney did not explain things to her adequately during the
criminal proceedings and “was in a big hurry to get [her] case out of the way”
(Doc. 1, p. 8).
The Petition does not indicate what further steps Petitioner may have taken
to exhaust her remedies in state court, in the time since this Court dismissed her
earlier habeas corpus action in April 2016.
The form habeas petition provides space for an explanation of why the
habeas applicant did not exhaust her remedies in state court. In response to that
prompt, Petitioner states that she “wasn’t stable at that time” (Doc. 1, pp. 5, 11),
was on a lot of medications, and “didn’t understand what was going on.” (Doc. 1,

p. 7). She also claims that “[t]he state didn’t look into everything.” (Doc. 1, p. 9).
To explain why her Petition should not be barred by the one-year statute of
limitations, she stated, “I didn’t know how to go about it, I want to prove I didn’t
kill my son.”

(Doc. 1, p. 13).

This information suggests that Petitioner is

attempting to show cause and prejudice for what appears to be a failure to
exhaust her remedies in state court.

See 28 U.S.C. § 2254(b)(1); McAtee v.

Cowan, 250 F.3d 506, 508-09 (7th Cir. 2001).
Disposition
Without commenting on the merits of Petitioner’s claims, based on the
limited record before it at this stage, the Court concludes that it is not plainly
apparent that Petitioner is not entitled to habeas relief.
IT IS THEREFORE ORDERED that Respondent shall answer the Petition
or otherwise plead within thirty days of the date this order is entered (on or
before November 16, 2017). 2

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.
The response date Ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only. See SDIL-EFR 3.
2

IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge 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 her continuing obligation to keep the Clerk (and
each opposing party) informed of any change in her 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. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.
Signed this 17th day of October, 2017.

Digitally signed by
Judge David R.
Herndon
Date: 2017.10.17
10:20:08 -05'00'
UNITED STATES DISTRICT JUDGE