Cole, Sr. v. Menard Correctional Center

Filing 5

ORDER DISMISSING CASE without prejudice. Signed by Judge David R. Herndon on 2/2/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRENT COLE, SR.,
No. 461504,
Petitioner,
vs.

Case No. 18−cv–85-DRH

MENARD CORRECTIONAL CENTER,
Defendant.

MEMORANDUM AND ORDER
HERNDON, District Judge:
On January 11, 2018, Brent Cole, Sr., who is currently incarcerated at
Menard Correctional Center, filed this Petition pursuant to 28 U.S.C. § 2254.
Petitioner seeks to challenge his 2016 Illinois state conviction on multiple
grounds (St. Clair County Circuit Court No. 15-cf-802).
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, the Court concludes that the Petition must be
dismissed.

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Background
On January 11, 2016, Petitioner pled guilty to two counts of aggravated
battery (Case No. 15-cf-802). (Doc. 1, p. 1). Petitioner was sentenced to 6 ½
years’ imprisonment on the same date. Id. Petitioner admits that he did not file a
direct appeal. (Doc. 1, pp. 3-11).
According to the Petition, on December 27, 2017, Petitioner filed a motion
for post-conviction relief with the trial court. (Doc. 1, p. 3). According to the
Petition, the motion challenges the validity of Plaintiff’s guilty plea and is “still
pending.” (Doc. 1, p. 3).1
The instant Petition was filed on January 11, 2018. (Doc. 1). Petitioner
asserts that his conviction and sentence are void based on the following: (1)
Petitioner was mentally unstable at the time he entered his plea, thus his plea was
not knowing and voluntary (grounds 1 and 2 in the Petition); (2) he was subjected
to an inadequate standard of living (ground 3 in the Petition); and (3) he was
charged with aggravated battery, but should have been charged with simple
assault (ground 4 in the Petition). (Doc. 1, pp. 3-11). The Petition suggests that
these issues have also been raised in Petitioner’s pending state court motion.
(Doc. 1, pp. 3, 5, 7, 9, 11).

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Petitioner states that his pending post-conviction motion is based on the following: (1) his
attorney gave the presiding judge improper information regarding the medication he was taking;
(2) Plaintiff was forced to be a witness against himself; and (3) the plea was not knowing or
voluntary because Plaintiff was not in his “right state of mind.” (Doc. 1, p. 3). The Petition also
suggests that all of the grounds raised in the instant Petition are being raised in his pending postconviction motion. (Doc. 1, pp. 5, 7, 9, 11).

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Petitioner claims that a number of circumstances prevented him from
exhausting his state court remedies and from filing the instant Petition at an
earlier date. (Doc. 1, p. 13). Specifically, Plaintiff references the following alleged
impediments: (1) Menard does not have reasonable access to law books and law
clerks; (2) MSU lockdowns and/or being on lockdown when Plaintiff was housed
in receiving hindered Plaintiff’s ability to file a timely motion to withdraw his
guilty plea and/or vacate his sentence; (3) flooding at Menard hindered Plaintiff’s
ability to challenge his conviction and sentence; and (4) it often takes several
weeks to obtain law library access and, once access is obtained, inmates are only
allowed to research for one hour. Id.
Discussion
Exhaustion, Procedural Default, and Timeliness
In the instant case, there are clear indications that the Petition is untimely,
unexhausted, and procedurally defaulted.

However, a habeas claimant may

attempt to excuse a procedural default by showing cause and prejudice.
Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

Additionally, with regard to

timeliness, certain state created impediments may warrant statutory tolling under
§ 2244(d)(1)(B).

See Estremera v. U.S., 724 F.3d 773, 776 (7th Cir. 2013)

(“Lack of library access can, in principle, be an ‘impediment’ to the filing of a
collateral attack.”).

Petitioner has raised arguments that implicate cause and

prejudice as well as statutory tolling.

Accordingly, absent a more developed

record, the Court cannot dismiss the Petition on these grounds.

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Abstention
According to Petitioner, he currently has a post-conviction motion pending
challenging the validity of his guilty plea.

If the trial court were to grant that

motion and set aside Petitioner's guilty plea, the criminal matter would clearly be
ongoing, and this case would be barred by the abstention doctrine outlined in
Younger v. Harris, 401 U.S. 37 (1971).

Under Younger, federal courts are

required to abstain from interference in ongoing state proceedings when they are
“(1) judicial in nature, (2) implicate important state interests, and (3) offer an
adequate opportunity for review of constitutional claims, (4) so long as no
extraordinary circumstances exist which would make abstention inappropriate.”
Green v. Benden, 281 F.3d 661, 666 (7th Cir. 2002) (citing Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 436-37 (1982) and
Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998)).

The Younger

abstention doctrine is implicated here because the ongoing proceeding is judicial
in nature and involves the important state interest of adjudicating whether
Petitioner’s guilty plea should be set aside. Further, there is no indication that the
state proceedings would not provide Petitioner with an adequate opportunity for
review of any constitutional claims. And finally, no extraordinary circumstances
are apparent which require federal intervention at this stage.
DISPOSITION
The Petition for a Writ of Habeas Corpus (Doc. 1) is DISMISSED without
prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases. The

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ongoing adjudication of Petitioner’s criminal case leads the Court to conclude that
it should abstain from intervening in this pending matter.
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 a pending post-conviction motion
challenging his guilty plea and the Court should abstain from intervening.
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.”

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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.

Judge Herndon
2018.02.02
15:03:25 -06'00'
United States District Judge

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