_ Oder Form (01/2005)

United States District Court, Northern District of Illinois pot

Name of Assigned Jud; Sitting Judge if Oth
ie Magistrate Judge Joan B. Gottschall than Acsigned Judge
CASE NUMBER 12 C 0286 DATE wy 23 200
CASE United States of America ex rel. Pedro Diaz (B46669) vs.
TITLE Warden Randy Pfister, Pontiac Correctional Center

Respondent is ordered to answer or otherwise respond to the habeas corpus petition (Dkt. No. 1), within
twenty-eight days of the entry of this order. The motion for leave to proceed in forma pauperis (Dkt. No. 3),
is granted. The filing fee is waived. Petitioner’s motion for appointment of counsel (Dkt. No. 4), is denied
without prejudice. On the Court’s own motion, named Respondent “Attorney General State of Illinois” is
dismissed from this action.

| For further details see text below.] Docketing to mail notices.

STATEMENT

Pro se Petitioner Pedro Diaz, presently an inmate at the Pontiac Correctional Center, has brought a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court are Petitioner’s
motion for leave to proceed in forma pauperis (Dkt. No. 3), motion for appointment of counsel (Dkt. No. 4),
and initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts.

The motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted because Petitioner has
demonstrated that he is impoverished.

Petitioner’s motion for appointment of counsel (Dkt. No. 4), is denied without prejudice. Counsel is
traditionally appointed in a habeas corpus proceeding only if an evidentiary hearing is needed or if the
interests of justice so require. See Rule 8(c), Rules Governing Section 2254 Cases. This cannot determined
until after the Court has reviewed Respondent’s response to the petition.

Turning to the initial review of the petition, Rule 4 requires the Court to examine the petition and
supporting exhibits and dismiss a petition if it “plainly appears” that Petitioner is not entitled to relief. If the
petition is not dismissed, the Court orders Respondent to answer or otherwise respond to the petition.

Petitioner was convicted of first-degree murder for beating and kicking a woman to death. (Dkt. No.
1). Ilinois v. Jones, No. 97 CR 25382 (Circuit Court of Cook County). His state direct appeal and
postconviction proceedings are complete. Illinois v. Diaz, 786 N.E.2d 190 (Ill. Oct. 2, 2002) (Table) (direct
appeal); Illinois v. Diaz, 955 N.E.2d 474 (Ill. Sept. 28, 2011) (Table) (postconviction proceeding). His
present habeas corpus petition alleges a violation of Batson v. Kentucky, 476 U.S. 79 (1986), ineffective

120286 United States of America ex rel. Pedro Diaz (B46669) vs. Warden Randy Pfister, Pontiac Correctional Center Page 1 of 2


STATEMENT

assistance of trial and appellate counsel, Martin v. Evans, 384 F.3d 848, 851 (7th Cir. 2004) (citing Strickland
v. Washington, 466 U.S. 668, 687-88 (1984)), improper admission of evidence following a suppression
hearing, Stone v. Powell, 428 U.S. 465 (1976), improper commenting on his invocation of his right to remain
silent, Johnson v. Acevedo, 572 F.3d 398, 399 (7th Cir. 2009) (citing Doyle v. Ohio, 426 U.S. 610 (1976)),
selective prosecution on the basis of race, United States v. Darif, 446 F.3d 701, 708 (7th Cir. 2006) (citing
United States v. Armstrong, 517 U.S. 456, 465 (1996); Wayte v. United States, 470 U.S. 598, 608 (1985)),

and introduction of out of court statements by a non-testifying co-defendant. Smith v. McKee, 598 F.3d 374,
386-87 (7th Cir. 2010) (citing Crawford v. Washington, 541 U.S. 36 (2004); Ohio v. Roberts, 448 U.S. 56
(1980)). The Court cannot hold that these claims plainly appear to be meritless at this stage in the
proceedings. Additionally, the petition does not plainly appear to be either untimely or that any claims are
procedurally defaulted. The Court shall leave it to Respondent to investigate any affirmative defenses and the
underlying merits of the petition. Accordingly, Respondent is ordered to answer or otherwise respond to the

petition within twenty-eight days of the entry of this order.

On the Court’s own motion, named Respondent “Attorney General State of Illinois” is dismissed from

this action. Petitioner has already properly named his custodian, Warden Randy Pfister of the Pontiac
ndent. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).

Correctional Center, as the Res,

2012 JAN 23 py 2: ok

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12C0286 United States of America ex rel. Pedro Diaz (B46669) vs. Warden Randy Pfister, Pontiac Correctional Center Page 2 of 2