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)

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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. 1 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. 1 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. 2 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. 3 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 4

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