Nelson v. Lashbrook

Filing 7

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud, denying 6 MOTION to Stay filed by Keith Nelson. Signed by Judge David R. Herndon on 11/14/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEITH NELSON,
Petitioner,
vs.

C se No.

v–1052-DRH

LASHBROOK,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Distri t
Pro

se

d e

Petitioner

Keith

Nelson,

currently incarcerated

at

Menard

Correctional Center in Illinois, brings this habeas corpus action pursuant to 28
U.S.C. § 2254. This matter is before the Court for review under Rule 4 and on
Petitioner’s Motion for a Stay of Abeyance. (Doc. 6)
Without commenting on the merits of Petitioner's claims, the Court
concludes that the Petition survives preliminary review under Rule 4 and Rule
1(b).
The Petition
Petitioner was convicted of one count of aggravated kidnapping and three
counts of aggravated criminal sexual assault on June 11, 2010 in Cook County
Illinois. (Doc. 1, p. 1). He was sentenced to four consecutive 25-year terms in
the Illinois Department of Corrections. Id.

1

Petitioner’s conviction was affirmed on direct appeal on July 12, 2013.
(Doc. 1, p. 2). Petitioner’s direct appeal raised the following issues:
1. The trial court erred in allowing the State to introduce “other
crimes” evidence to show Petitioner’s intent, motive, and
propensity to commit sex crimes; and,
2. The State violated Petitioner’s constitutional right to confront
witnesses when it presented expert testimony from a DNA analyst.
Id.
Petitioner believed that his appellate counsel had filed a Petition for
Leave to Appeal (“PLA”) to the Illinois Supreme Court some time prior to August
17, 2013. Id. On January 1, 2016, Petitioner discovered that no PLA had ever
been filed, and subsequently moved to file a late PLA. Id. Petitioner’s Motion
was granted. (Doc. 6, p. 1). He filed a late PLA on August 23, 2017. (Doc. 1, p.
3). On September 26, 2017, the PLA was denied. (Doc. 6, p. 2). The present
Petition was filed on September 29, 2017. (Doc. 1).
Petitioner filed a motion for post-conviction relief in the state court on
September 27, 2017. (Doc. 6, p. 2). That motion raises the following issues:
1. Petitioner’s 20 year sentence was increased based on aggravating
factors not submitted to a jury and determined beyond a
reasonable doubt, in violation of Petitioner’s Sixth Amendment
rights;
2. Petitioner was denied effective assistance of appellate counsel
when appellate counsel failed to raise the ineffectiveness of trial
counsel in that trial counsel:
a. Failed to object to an aggregated sentence of 120 years;
b. Failed to object to the double enhancement Petitioner
received when his offenses were enhanced to 3 counts of
aggravated sexual assault based on the kidnapping;
c. Failed to consult and request a lesser included offense.
(Doc. 6, p. 2).
The Petitioner raises the following issues in this proceeding:
2

1. The State court’s admission of other crimes evidence was contrary
to clearly established Federal law as determined by the Supreme
Court of the United States; (Doc. 1, p. 14);
2. Petitioner’s constitutional right to confront the witnesses against
him was violated by the admission of Quataro’s testimony without
the testimony of other technicians involved in the DNA analysis of
this case; and the appellate court unreasonably applied clearly
established Federal law affirming the violation and unreasonably
determined certain facts; (Doc. 1, p. 17);
On October 16, 2017, Petitioner filed a Motion for Stay of Abeyance.
(Doc. 6).

In the Motion, Petitioner informs the Court of his post-conviction

proceedings, described above.

Petitioner also requests that the Court stay

these proceedings pending the outcome of his state court post-conviction
motion, which he believes makes the present proceeding untimely. (Doc. 6)
Analysis
A federal court should not grant a habeas application to a petitioner
seeking relief under § 2254 unless it appears that “the applicant has exhausted
the remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A).
“An applicant shall not be deemed to have exhausted the remedies available in
the courts of the State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c).
A petitioner need only raise the issues under consideration once before
the state court to satisfy the exhaustion requirement. O’Sullivan v. Boerckel,
526 U.S. 838. 845 (1999).

There is no requirement that a petitioner raise

issues previously raised on direct appeal in an additional state post-conviction
proceeding.

In fact, the Illinois Post-Conviction Hearing Act specifically
3

prohibits a litigant from raising issues on collateral attack that were previously
raised on direct appeal. People v. Tate, 980 N.E.2d 1100, 1103 (Ill. 2012) (“A
postconviction action is not an appeal from the judgment of conviction, but is a
collateral attack on the trial court proceedings”); Sturgeon v. Chandler, 552
F.3d 604, 611 (7th Cir. 2009).

The United States Supreme Court has also

interpreted the exhaustion requirement to only require one complete round of
the State’s appellate review process. O’Sullivan, 526 U.S. at 844 (“[W]e have
not interpreted the exhaustion requirement to require prisoners to file
repetitive petitions.”)(citing Brown v. Allen, 344 U.S. 443, 447 (1953)
superseded by statue, Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. 104-132, 110 Stat. 1214).
Therefore, it appears that Petitioner has exhausted the claims that he is
attempting to bring in this suit. Lisle v. Pierce, 832 F.3d 778, 785 (7th Cir.
2016) (finding the petitioner had exhausted the issues before the court where
he raised the matter at issue in his direct appeal and his request for a PLA
before the Illinois Supreme Court, despite the fact that he had state postconviction proceedings ongoing regarding other issues).

Petitioner has

presented his claims 1) regarding “other crimes” evidence; and 2) alleging that
he was not properly able to confront witnesses regarding DNA evidence to the
Illinois Supreme Court on direct review.

Petitioner has represented to this

Court that the Illinois Supreme Court denied his PLA on those two specific
issues on September 26, 2017, three days prior to the filing of this Petition.
Petitioner has also alleged that the Illinois Supreme Court granted him leave to
4

submit a late PLA after he missed the deadline.

It is possible that the

irregularities in Petitioner’s PLA filing procedurally doom this Petition.
However, Petitioner has represented to the Court that the Illinois Supreme
Court accepted his late PLA and denied it on the merits. Without the state
court records, that Court will take Petitioner at his word on this point. That
means that this Petition is both timely, having been filed within a year of the
date the conviction became final by the conclusion of direct review pursuant to
28 U.S.C. § 2244(d)(1), and properly exhausted as Petitioner has raised the
issues he seeks to raise here during one round of state court review.
Petitioner’s

Motion

for

a

Stay

of

Abeyance

complicates

matters

unnecessarily. Petitioner alleges that he has initiated two additional claims in
post-conviction proceedings, and requests the Court stay these proceedings so
that he may properly exhaust those claims. But Petitioner has not made those
claims in the present Petition. It is not therefore, the type of “mixed” petition
“in which a state prisoner presents a federal court with a single petition
containing some claims that have been exhausted in the state courts and some
that have not.” Rhines v. Weber, 544 U.S. 269, 271 (2005). While the Seventh
Circuit has recommended that district courts consider staying mixed petitions
in certain circumstances, see, e.g., Tucker v. Kingston, 538 F.3d 732, 735 (7th
Cir. 2008), those circumstances are not relevant here because the Petition is
not mixed. Lisle, 832 F.3d at 785.
It is possible that the exclusion of the unexhausted claims from this
Petition has made it harder or impossible to raise them in future proceedings.
5

28 U.S.C. § 2244(b). But Petitioner has not moved to amend his Petition, and
the Court must act on the claims presently before it, and not on prospective
claims.

As there are no grounds to stay the case as presently drafted, the

Court DENIES the Motion for a Stay of Abeyance, (Doc. 6), and ORDERS
Lashbrook to RESPOND to the Petition, so that the Court may have the
advantage further briefing and the state court record in deciding the issues
presented by the Petition.
Disposition
IT IS HEREBY ORDERED that Respondent Lashbrook shall answer or
otherwise plead within thirty days of the date this order is entered (on or before
December 18, 2017). 1 This preliminary order to respond does not, of course,
preclude the Government from raising any objection or defense 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.
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
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.
1

6

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 (7) 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.

Judge Herndon
2017.11.14
11:33:09 -06'00'
United St tes Distri t

7

d e