Cornes v. Thompson et al

Filing 13

ORDER DISMISSING CASE without prejudice for lack of jurisdiction. Dismissal is without prejudice to bringing a properly authorized successive petition. Signed by Judge David R. Herndon on 1/11/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERNEST CORNES,
No. C86146,
Petitioner,

Case No. 17−cv–1066-DRH

vs.
JAMES R. THOMPSON,
PHILIP J. ROCK, and
WILLIAM A. REDMOND,

Respondents.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Pro se Petitioner Ernest Cornes, currently incarcerated at the Shawnee
Correctional Center, brings this habeas corpus action pursuant to 28 U.S.C. §
2254.1 Petitioner pled guilty in 1953 and 1954 to two charges of armed robbery
and one charge of rape. Cornes v. Thieret, 912 F.2d 467 (7th Cir. 1990). After
serving 20 years, Petitioner was released on parole. Cornes v. Thieret, 912 F.2d
467 (7th Cir. 1990); Cornes v. DeTella, 108 F.3d 1379 (1997). While on parole,
Petitioner was charged with rape, deviate sexual assault, and intimidation. Id.
Following a jury trial in the Circuit Court of Williamson County (Case No. 77-cf190), Petitioner was convicted of rape, deviate sexual assault and intimidation and
sentenced to concurrent terms of imprisonment. People v. Cornes, 80 Ill. App.

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Review of this Petition was delayed pending receipt of Petitioner’s IFP Motion or filing fee. After
two failed attempts, Petitioner submitted a proper IFP Motion on December 18, 2017. Petitioner
was granted leave to proceed IFP on December 21, 2017.

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3d 166 (Ill. App. Ct. 1980). Petitioner is presently serving a sentence of 60-to-life
in connection with those charges. See Cornes v. Thieret, 912 F.2d 467 (7th Cir.
1990); Cornes v. Thieret, 972 F.2d 853 (7th Cir. 1992).
Although the Petition is difficult to understand, it is evident that Petitioner
is challenging his Williamson County conviction.2

Petitioner contends that his

conviction is unconstitutional because the Illinois Class X Felony statute (enacted
by P.A. 80-1099) was an unconstitutional legislative act, corrupted by fraud and
bribery.
The Court, however, will not delve any further into Plaintiff’s allegations.
The current Petition is Petitioner’s third § 2254 Petition pertaining to this
conviction. In 1985, Petitioner filed a § 2254 petition in the Southern District of
Illinois raising several constitutional challenges, including an equal protection
claim. Cornes v. Thieret, No. 85-cv-3181-GBC. The petition was dismissed and,
on appeal, the Seventh Circuit affirmed the dismissal of all of the constitutional
challenges. See Cornes v. Thieret, 972 F.2d 853 (7th Cir. 1992). raising an equal
protection claim. Petitioner filed a second § 2254 petition in the Central District
of Illinois in 1994. Cornes v. DeTella, et al., No. 94-cv-2306-HAB. The district
court denied the petition for failure to raise a federal constitutional issue and the
Seventh Circuit affirmed. See Cornes v. DeTella, 108 F.3d 1379 (7th Cir. 1997).
Accordingly, the instant petition is a “second or successive habeas corpus
application under section 2254.” 28 U.S.C. § 2244(b); Lambert v. Davis, 449
F.3d 774, 777 (7th Cir.2006); Harris v. Cotton, 296 F.3d 578, 579 (7th Cir.
2

Doc. 4, p. 15 is a copy of Petitioner’s state court appeal.

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2002). In order to file such an application, Petitioner must first seek and obtain
permission to do so from the federal court of appeals. Id. Because Petitioner has
not obtained this authorization, the Petition must be dismissed.
CERTIFICATE OF APPEALABILITY
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, 120 S. Ct. 1595, 1604 (2000). Both components must be
established for a COA to issue.
Here, it is clear that this Court is without jurisdiction to entertain the
Petition because it is a second or successive petition filed without the
authorization of the Court of Appeals. No reasonable jurist would find the issue
debatable. Accordingly, the Court denies a certificate of appealability.

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DISPOSITION
IT IS HEREBY ORDERED, for the reasons above, the Petition is
DISMISSED without prejudice for lack of jurisdiction. Dismissal is without
prejudice to bringing a properly authorized successive petition. The Court
DIRECTS the Clerk of the Court to enter judgment reflecting the same.
IT IS SO ORDERED.

Judge Herndon
2018.01.11
06:03:46 -06'00'
United States District Judge

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