first Successive Post Conviction Petition, for only a full and
complete third stage hearing can fully develop all the evidence
needed for the Petitioner to show how his Constitutional Right

were violated.

PROCEDURAL HISTORY
1. On May 17, 1993, Petitioner was convicted of Murder, Arson

and Arm Robbery by a Jury.

2. On May 19, 1993 Petitioner was sentenced to DEATH by the
Court, absent Jury, by Judge Mannion, in the Criminal Division

of Cook County, Illinois,

3. On September 19, 1996, The Illinois Supreme Court AFFIRMED

Petitioner's conviction and sentence.

4, On November 25, 1995 Petitioner, filed a Post Conviction
Petition,
5. In July of 1996 the State Appellate Defender's office

was appointed to Petitioner's case.

6. On October 18, 1997 Private Counsel was given leave to
file his appearance, Counsel was paid by the Capital Litigation

Division.

7. On April 13, 1998 Judge Mannion, dismissed Petitioner's

Post Conviction Petition.

8. In May of 1998, Judge Mannion, denied Petitioner's Motion
to reconsider, on the grounds that he Didn't want to hear the

Shatner case!

(6)
4a? 36,2013 1283 BH



Court agree with Petitioner and allow him to proceed, Petitioner
believes that he will then be entitled to a Stay from this
Honorable Court. Petitioner believes that Rhines -v- Webber,
544 U.S. 269 supports his contention on this issue. The Rhines
Court stated, A stay is appropriate only if (1) there is "good
cause for the petitioner's failure to exhaust his claims first
in state court,” (2) the petitioner's unexhausted claims are
not “plainly meritless," and (3) the petitioner is not engaged
in “abusive litigation tactics or intentional dely." Rhines,
544 U.S. at 277-78, Petitioner believes that he has fulfilled
all three prongs of Rhines, therefore is entitled to a Stay
should the State Court allow petitioner to proceed on his

successive post conviction petition.

CONCLUSION
WHEREFORE, Petitioner prays that this Honorable Court
will deny the Respondents request for a denial of a Stay. Or
in the alternative that this Honorable Court Stay It's ruling
on the Respondent's request until the State Court has ruled
on if Petitioner will be allowed to proceed with his properly

filed successive post conviction petition. E Peciary
TL Swear Theabove ts Truce £ Fact under Pilly e yaly

on Y-30-jQ052. Respectfully Submitted:

Sworn to and. Subscribed to /s/

Before me this 30th. Day of Pro-Se Petitioner
April 2012. Aete nee paz950
Menard, Il. 62259-1000

Notary Public

(5)

Apr 30,2012

1:06 PM


Z.
Petitioner's family paid $27,500.00 to Mr. Cheronis to

represent Petitioner at trial in the case at bar. Sadly it
appears that Petitioner's Trial Counsel was using that money
to supply his addiction rather than on Petitioner's defense.
The issue of Petitioner's Trial Counsel being impaired at the
time of trial needs to be investigated, the only avenue left
open to Petitioner at this point to receive JUSTICE is by way

of this Petition. (See exhibit "A" of attached exhibit #1).

3. Trial Counsel deceived Petitioner when Trial Counsel told

Petitioner to waive having a Jury decide if he was eligible

~———to- receive a DEATH sentence, Trial Counsel stated that he knew
the Judge and that he would not sentence Petitioner to DEATH
or even LIFE, this was a complete deception on the part of Trial
Counsel. Trial Counsel was just seeking the fastest way possible
to end his representation of Petitioner so he could go out and
find his next victim.
4. Had Trial Counsel provided effective assistance, Petitioner
would not have been found DEATH eligible, therefore he would
not now be serving a life sentence. all the miscues that
occurred during Petitioner's trial as well as sentencing can
now be explained in a rational manner. What once was thought
to be trial strategy on the part of Trial Counsel is now exposed
for what it truly was a drug addict playing at being an Attorney,
trying to obtain money for his next fix, trying to hide his
addiction from the Court, and just moving through cases as fast

as possible so he could go out and seek his next victim.

(2)

Apr 20 2002 14209 FAN



was able to present my new claims to the State Courts. The
State as one would guess is opposing such a Stay. I believe
that my new claims both have merit and are new in the sense
that I could not have raised them sooner. Therefore I believe
that Your Honor will find them not to have been waived, and
will allow my Petition to proceed.

Judge Gainer, my next court date in Federal Court if
June 5, 2012. what I am seeking is some type of documentation
that my Motion for Successive Post Conviction is pending in
your Court awaiting a ruling if I will be allowed to proceed.

Your Honor, like I have said I do not know how the
mix up occurred but I pray that you will be able to straighten
it out. Judge Gainer as you know I do not have Counsel at this
time and I myself have a very limited knowledge of how things
are to be done. I am trying my very best to do things properly.
I am not able to appear on my own behalf at the Status dates
you have been setting. Therefore I do not know where to turn
or what to do next. I know that you are a extremely busy man
with many cases to attend to. I just pray you have the time
to help me with this matter.

Judge Giner, I respectfully thank you for your time
and help in this matter. I eagerly await your reply.

Respectfully Submitted: {> Lie

Darrin W. Shather

Apr 30,2012

1:07 PM



Date: April 27, 2012

To: The Honorable
Thomas V. Gainer Jr.
Associate Judge

From: Darrin W. Shatner
Reg. No. B42950
P.O. Box 1000
Menard, Il. 62259-1000

Re: Your letter of April 19, 2012

Your Honor;

Sir, I m responding to your letter dated April 19,
2012. May please open with thanking you for your timely reply
toe my letter to yourself.

Next there seems to be some type of an error concerning

: my filing ‘of a First Successive Post Conviction Petition. Judge
Gainer, it seems a letter I wrote seeking advice some how was
understood by the Clerk of the Court to be a Motion for Leave
to file a Successive Post Conviction Petition. I do not know
how this happen, but from what you tell me and from what I have
read on the computerized docketing statement from the Clerk's
office such a motion was filed on December 5, 2011. Your Honor,
that letter was never meant to be a motion.

I did mail on January 26, 2012 a Motion for Leave to
file a Successive Post Conviction Petition, as well as a request
for appointment of Counsel. This was received by the Clerks
office on February 7, 2012 and file stamped February 14, 2012.
(I am now enclosing two complete copies of what I filed in case
the original file stamped copies can not be located by the Clerk
of the Court.) It is this Petition that I had written you
about seeking information on the status of. The reason the
status at this time is so important to me is because due to
the time limits set forth relating to the filing of a Federal
Habeas Petition I was forced to file a Federal Habeas Petition
without fully exhausting certain claims in State Court. Those
claims are the ones listed in my Successive Post Conviction
Petition. At the time of filing my Federal Habeas Petition
I also requested the Federal Court Stay my Petition until I

Apr 30,2012 © 1:07 PM



IN THE CIRCUIT COURT OF COOK COUNTY

CRIMINAL DIVISION

DARRIN SHATNER,
PETITIONER,

~v- CASE NO.: 91-CR-2026

PEOPLE OF THE STATE OF ILLINOIS THE HONORABLE

RESPONDENT, FRED SRUEA rm
Suria Ly

PRESIDING JUDGE

FIRST SUCCESSIVE POST CONVICTION PETITION

~~~ PETITIONER*S MOTION FOR LEAVE TO FILE HIS” OO

Now comes Darrin Shatner, Petitioner by and through himself

Pro-Se, in accordance with the Post Conviction Hearing Act,

725 I.L.C.S. 5/122-1(F) et.seq., and respectfully requests that

this Honorable Court grant him leave to file his first successive

Post Conviction Petition, attached as EXHIBIT #1. In support

of thethis Motion the Petitioner states the following:

1. On May 17, 1993, Petitioner was convicted of Murder, Arsen,

“th

and Armed Robbery. Petitioner is innocent of these crimes

‘
He was wrongfully convicted due to ineffective assistance of
his Trial Counsel. It has just recently come to the atténtion

of the Petitioner that his Trial Counsel had a severe DRUI

ADDICTION before, during, and after Petitioner's trial. That
during his representation of Petitioner, Trial Counsel was

seriously impaired due to his drug usage, which the Petitioner
has just been able to confirm by way of an Affidavit of a man

who has first hand knowledge of Trial Counsels drug abuse.

1)

Be Ao Bore

W239 OH



IN THE
UNITED STATES DISTRICT COURT NAY 04 a019
FOR THE nors | M
NORTHERN DISTRICT OF ILLI hod PL RBIE
EASTERN DIVISION CLERK, U.S. DISTRICT COURT

Darrin Wayne Shatner,
Petitioner
-vV- NO. :_12-C-47

Mike Atchison,
Warden Menard C.C.

Respondent.

The Honorable
Edmond E. Chang
Judge Presiding

ee we eee wwe ww

REPLY TO RESPONDENT'S RESPONSE TO
PETITIONER'S REQUEST FOR A STAY

Now comes the Petitioner by and through himself
Pro-Se, respectfully requesting that this Honorable Court enter
his Reply to Respondents Response to his Request for a Stay
of his Habeas Petition.

INTRODUCTION

According to the Respondent, Petitioner is not entitled
to a Stay because grounds 11, 12, 13, and 14 although not
Presented to the State Courts, they are in fact deemed exhausted
and procedurally defaulted. Petitioner takes issues with the
Respondents contention. The Respondent is in error when he
states that Petitioner is to late to litigate his issues in
State Court.

am)

Apr 30,2012 1:06 PH



protection what so ever, his life was on the line and he was

hung out to dry. Petitioner has good cause to have issues fully

heard before this Honorable Court.

6. Petitioner has just recently come into possession of new
scientific evidence that shows a human brain is not fully
developed until around the age of twenty-five years old.
Petitioner was just fifty-one days into his nineteenth year

of life when this crime occurred, well below this threshold

of full development. Petitioner implores this Honorable Court
to use hindsight to ask the following questions:

(A). Is this newly discovered evidence? Yes it is. Was it _

available at the time of trial or sentencing? No.

(B). Had this new evidence been available at the time of trial
would it have been admissible? Yes, Petitioner contends it
would have been admitted.

(C). Had this evidence been used to it's fullest during trial
is there a strong likely hood the out come would have been
different? Petitioner believes yes it would have.

(D). If this new evidence were to be used at sentencing
[assuming Petitioner would have been found guilty with this

new evidence being used] is there a strong likely that the
sentence would have been different? Petitioner, believes yes

it would have. These are the questions that can only be fully
answered with a complete and full evidence hearing. Petitioner's
life hangs in the balance of this Honorable Courts ruling
therefore petitioners begs this Honorable Court to allow the
filing of the attached Petition for Post Conviction Relief,

so that a full and complete third stage hearing can be had where

the entire full truth can finally be revealed

(4) Jerr BAW —wBW AM



“believing he was guilty, so much so that they refused to

5. Trail Counsel was grossly ineffective for failing to or
intentionally omitting the fact to the Petitioner that all it
would have taken was one Jury member to vote no on the question
of was Petitioner, eligible for DEATH to prevent not only him
receiving the DEATH sentence but LIFE as well. Trial Counsel
knew using a Jury to decide this question could have added days
to this process, and from the newly discovered evidence we now
know that was the last thing Trial Counsel wanted to happen,

He was a drug addict, severely abusing both drugs and alcohol,
Petitioner had little if any chance of proving his innocence

with the odds so severely stacked against him, The State

investigate the fact that their star witness was in fact the
arsonist in this case, and the one who struck the fatal blow

to the victim, however the State was so fixated on convicting
Darrin Shatner, that it never even charge Ms. Rogaz. Then there
was the Judge who made his bias known when it came to
Petitioner's drug use, when his drug use was brought to the
attention of the court to show that statements made were not
knowingly informed, Judge Mannion chose to say he did not believe
Petitioner was intoxicated when he was arrested, however just
ten days later when finding Petitioner eligible Judge Mannion
made it a point to stress how Petitioner was intoxicated when

he was arrested. this was a true conflicting ruling on the

part of Judge Mannion. Lastly Petitioner's Trial Counsel who
was retained/hired to represent/protect Petitioner grossly failed
him. Trial Counsel was impaired, and from his level of

representation one can now conclude that Petitioner would have

just done as good of a job himself, Petitioner received no

(3)
Jerr 20,202 1:08



State of Illinois
Circuit Court of Cook County
Criminal Division
Thomas V. Gainer, Jr. 2600 South California Avenue
Associate Judge Room 302
Chicago, Illinois 60608
(773) 869-7410

April 19. 2012

Darrin Shatner B-42950
P.O. Box 1000

~ Menard, Illinois 62259 ~~ ~ — ~ : ee

Dear Mr. Shatner,

T have received your one-page “motion for leave for successive post-conviction” which
you filed with the Clerk of the Circuit Court of Cook County on December 5, 2011. I have taken
no action on your motion because you have not alleged any facts for the court to consider.

In your motion you ask the court to send “rules and guidelines required so defendant can
properly file” a successive post-conviction petition. While I cannot give you legal advice or in
any way assist you in preparing your pro se pleading, I can direct your attention to the Post-
Conviction Hearing Act found at 725 ILCS 5/122-1 et.seq.

Sincerely,

Howe
Thomas V. Gainer, Jr.
Associate Judge

Circuit Court of Cook County

Apr 30,2012

1:07 PR



Court Docketing statement shows that Petitioner filed his
successive post conviction petition on December 5, 2011 (See
exhibit #2) this is a error on the part of the Clerk of the
Court. Petitioner points this Honorable Court's attention to
(exhibit #1) where it clearly shows that Petitioner filed his
successive post conviction petition on February 14, 2012, but
that it was mailed on January 26, 2012. Even the Judge assigned
to review whether to allow Petitioner to proceed with his
successive post conviction petition is confused a bit. (See
exhibit #3) In response to Petitioner's letter to Judge Gainer,
seeking information of the status of his pending petition,
Petitioner received from Judge Gainer, a letter stating the
resone he had not yet taken action on Petitioner's petition
is because it was only one page seeing advise or help in filing
a successive post conviction petition. Petitioner never filed
such a motion. He did however in late 2011 write a letter
seeking help on how to file such a petition. some how the Cook
County Court Clerk's office field this letter as the petition.
Petitioner has written Judge Gainer, (See exhibit #4) hoping
to clear up this error by the Clerk of the Court. Petitioner
hopes that bringing this error to Judge Gainer's, attention
that he will now quickly decide on whether Petitioner will be
allowed to proceed with his successive post conviction petition.
Petitioner believes that the Respondent has over stepped
it's authority in stating that the Petitioner's claims are
defaulted and meritless. This ruling is one for the Court to
make not the Respondent. That is why Petitioner requests that

this Honorable Court will t least Stay his Habeas Petition until
he receives a ruling from the State Court, for should The State

(4)

Apr 30,2012 1:06 PM



g. On May 8, 1999, the Illinois Supreme Court vacated the
order of the Trial Court and remanded Petitioner's Post
Conviction Petition back to Circuit Court for a hearing to be
conducted in compliance with People -v- Bounds, 182 Ill. 2d.

1 (1998).

10. On January 10, 2003, former governor Ryan commuted

Petitioner's sentence to Natural Life.

tt. On January 20, 2005, Private Counsel Mr. thomas Peters,

filed a second amended Post Conviction Petition.

12. On July 5, 2006, Judge Suria Tleey dismissed Petitioner's

Post Conviction Petition, just two days before he retired.

43. On November 30, 2006, Petitioner's Counsel filed Notice

of Appeal.

14, In December of 2010 the Illinois Appellate Court AFFIRMED
the Circuit Courts dismissal of Petitioner's post Conviction

Petition,

15. Petitioner's Counsel Mr. Thomas Peters, then filed leave

to Appeal to the Illinois Supreme Court.

16. in September of 2011 Petitioner, learned that his Mr.

thomas Peters, had died sometime in July of 2011.

17. In late October 2011, Petitioner was informed that his
Petition for Leave to Appeal to the Illinois Supreme Court was

denied on September 28, 2011.

18. Petitioner, now comes before this Honorable Court to file

his fi i
irst Successive Post Conviction Petition, in order to comply

(7) Ap 29,2012

1:28 PM



Respectfully Submitted: D Mute

. Darrin Shatner
Pro-Se,
Reg. No. B42950
P.O. Box 1000
Menard, Il.
62259-1000

Petitioner declares under penalty of perjury that the
foregoing Motion For leave to file his First Successive Post
Conviction Petition as well as the Petition its self attached
as EXHIBIT #1 are true and correct both in fact and substance

to the best of his personal knowledge as of the undersigned

‘date.

/s/: Darn,
Darrin Shatne

Shite.
r

Sworn to and Subscribed to

Before e mig SQ’) of
Trpcuinrey 2012.

a ee
isl La

, OFFICIAL SEAL
‘ SENNIFER CLENDENIN
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES
10/5/2013

(9)

Ape 86,2012 1:8 PH



2. In his Habeas Petition Petitioner raised claims
pertaining to newly discovered evidence, Although the Respondent
contends that Petitioner cannot demonstrate “cause” and
“prejudice” sufficient to overcome the hurdle of procedural
default on there claims, such a contention is belied by the
record.

The Courts have uniformly held that “cause” is satisfied
where Counsel did not know and with reasonable diligence could
not have discovered the factual predicate for the claim at the
time of the alleged procedural default. See e.g., Strickler
-v- Greene, 527 U.S. 263, 289-90 (1999), The Strickler Court
explains, where the prosecution has suppressed evidence favorable
to the defense, and thereby “impeded trial Counsel's access
to the factual basis for making a Brady claim." “That
ordinarily establishes the existence of cause for a procedural
default." Strickler, 527 U.S. at 289-90; see also Crivens,

172 F 3d. at 995-96. Although Petitioner's claims are not Brady
based they are claims born of evidence not known to petitioner
before now. Therefore for the Respondent to state as fact to
this Honorable Court that Petitioner has no recourse in state
court is far reaching and erroneous. because there is such a
safety valve in Illinois State Court in the form of a successive
post conviction petition. which the Petitioner has properly
filed with the Cook County Circuit Court. (See exhibit #1)

3. This Honorable Court should grant Petitioners request
for a Stay at least until the Illinois State Court has ruled
on whether Petitioner will be allowed to proceed with his

successive post conviction petition. Although the Cook County

(3)

Apr 30,2012

1:06 PR



1. Petitioner has met the requirements to overcome
procedural default.

Petitioner, has completed one full round of direct
appeals and one full round of filings and and appeals on his
post conviction petition. Generally speaking, the Court has
“Not interpreted the exhaustion doctrine to require prisoners
to file repetitive petitions." O'Sullivan -v- Boerckel, 526
U.S. 838, 844 (1999). Pursuant to O'sullivan, Petitioner's
claims therefore would be considered exhausted. yet because
they rely on newly discovered evidence only recently uncovered
by Petitioner, the evidence pertaining to the new evidence of
Petitioner's Trial Attorney using drugs, as well as all that
has come to light because of that drug use, as well s the newly
discovered scientific evidence concerning the teen age human
brain. Petitioner's claims are potentially subject to
procedural default. See Crivens -v- Roth 172 F.3d 991, 995
(7th. Cir. 1995), (finding that Petitioner satisfied the
exhaustion requirement despite raising new Brady claim, but
that he was subject to procedural default).

A Petitioner is barred from raising a defaulted claim
as a basis for federal Habeas Corpus relief unless he can (1)
excuse the default by “Demonstrating cause for the default and
actual prejudice as a result of the allaged violation of Federal
law; or (2) show that the case falls within the category of
cases that the United States Supreme Court has characterized
as "fundamental miscarriage of justice." Coleman -v- Thompson,
501 U.S. 722, 750 (1991). Petitioner's claims satisfy both

safety valves.

(2)

Apr 30,2012

1:06 PK



"

7. The newly discovered evidence is scientific in nature,
(See exhibit "C" in exhibit #1). This new evidence can now

be used to explain much of what happen to Petitioner not only
prior to this crime but to help explain his true state of mind
and ability to make decisions. Since this evidence is
scientific in nature and newly discovered, this Honorable Court
must consider the impact it would have had if it were used in
the original trial and sentencing hearing. It has been held
that where the evidence is scientific in nature and was not
previously available, a Petitioner is entitled to file a
Successive Post Conviction Petition on that claim. People -v-
~Barksdale, 372 Ill. App. 3d. 422; 430 , 762, NEL 2a. 669,676 0

(1st. District).

8. Whenever a Petitioner makes a substantial showing of a

violation of Constitutional Rights an evidentiary hearing is
required. People -v- Whitfield, 217 Ill 24a. 177, 207, 840 N.E.
2d. 658, 676 (2005) (citing Coleman 183 Ill. 2a. at 381, 701

N.E. 2d. at 1071). "When the Petitioner's claims are based

on matters outside the record, it is not the intent of the Act
that such claims be adjudicated on the pleadings". Whitfield,
217 Ill 2d. at 207, 840 N.E. 2d. at 676 (citing People -v- Simms,
192 Ill. 2d. 348, 360, 736 N.E. 2a, 1092, 1105 (2000); People

-v- Kitchen, 189 Ill. 2d. 424, 433, 727 N.E. 2d. 189, 194 (1999);
Coleman, 183 Ill. 2d. 382, 701 N.E. 2d. at 1072). The well
pleaded facts and supporting Affidavits presented in Petitioner's
Petition for Post Conviction Relief (See exhibit #1) constitute
a substantial showing that his Constitutional Rights were

violated. Therefore Petitioner believes that he is entitled

to receive permission from this Honorable Court to file his

(5)
er 2, 200: FM



with Federal Rules regarding all issues must first he presented
before the State's Highest Court, which means Petitioner, must
first present his new Constitutional violation claims before

this Honorable Court.

CONCLUSION
WHEREFORE, Petitioner, believes that he has demonstrated good
cause for not raising these claims sooner. That the claims
raised rise to the level of substantial Constitutional violations.
Petitioner's Trial Counsel was severely addicted to drugs and

alcohol, this in its self would be enough to demand a new trial

be ordered. However there is much more, the trial Judge clearly
chose to impart his personal feelings concerning drug use into
these proceedings. Petitioner was denied effective assistance
of Counsel through out this entire process to date, surely at
some point one of Petitioner's Attorneys would have brought

the claim of Due Process violation with the clearly conflicting
rulings by Judge Mannion in this matter before trial and at
sentencing. Then there is the newly discovered evidence that

is scientific in nature that now shows that a human brain does
not fully develop until at least age twenty-five. this evidence
in its self would have after a fair trial had Petitioner been
found guilty changed the out come of sentencing. Clearly this
new evidence would have most likely changed the out come of

the finding of Petitioner eligible for DEATH. For all the
Foregoing stated issues, Petitioner respectfully requests that
this Honorable Court grant him leave to file his First Successive

Post Conviction Petition. Attached hereto as EXHIBIT #1.

(8)

sfapr 250 7002 1:27 FAM