STATEMENT

with a copy of this order.

Respondent shall not answer or otherwise respond to the federal habeas corpus petition at this time.
Respondent is instructed to submit a written report within twenty-eight days of the entry of this order
detailing the history of petitioner’s state court proceedings (direct, postconviction, and any related
proceedings), Counsel for respondent shall also file an appearance.

12C4776 Garry] Willis (697346) vs. Charles E. Warren Page 4 of 4



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Order Form (01/2005) 4)

United States District Court, Northern District of Illinois

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CASE NUMBER 12 C 4776 DATE SUN 2.9 202
CASE Garryl Willis (697346) vs. Charles E. Warren

TITLE

DOCKET ENTRY TEXT

Petitioner is instructed to submit a proposed amended federal habeas corpus petition detailing his federal
claims within twenty-eight days of the entry of this order. Petitioner shall also submit a written report
detailing what claims he is presently attempting to exhaust in his postconviction proceedings, and those
claims that were previously exhausted in his direct appeal proceedings. Petitioner should also detail the
current status of his state postconviction proceedings. Respondent shall not answer or otherwise respond to
the federal habeas corpus petition at this time. Respondent is instructed to submit a written report within
twenty-cight days of the entry of this order detailing the history of petitioner’s state court proceedings (direct,
postconviction, and any related proceedings). Counsel for respondent shall also file an appearance. The
Clerk is directed to send the petitioner an amended habeas form and instructions for filing along with a copy
of this order. Petitioner is warned that failure to comply with these directives will result in summary
dismissal of this case. Petitioner’s motion for appointment of counsel (Dkt. No. 4), is denied.

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

STATEMENT

Pro se petitioner Garryl Willis has brought a habeas corpus petition pursuant to 28 U.S.C. § 2254
challenging his 2007 murder conviction from the Circuit Court of Cook County. Petitioner alleges that his
conviction was affirmed on direct appeal, but is presently litigating a post conviction petition under the
Illinois Post Conviction Hearing Act, 725 ILCS 5/122-1. The postconviction petition was denied by the state
trial court judge on May 27, 2011.

Petitioner explains that he was involuntarily transferred from Illinois to a state prison in New Jersey
while his Illinois postconviction petition was pending. The state postconviction was subsequently denied by
the Illinois judge. Due to the transfer to New Jersey, petitioner claims that he did not receive proper notice of
the decision, or other necessary legal documents to bring a timely appeal. His attempts to bring an out of time
appeal were rejected by the state trial judge. Petitioner is continuing his efforts to bring an out of time appeal
in the Illinois courts.

Petitioner has brought the present federal habeas corpus petition in addition to his pending state court
efforts. He wishes to stay this case so that he can continue his attempts to exhaust his state postconviction
petition claims. (Dkt. No. 6). (He does not invoke equitable tolling at this time. See Holland v. Florida, 130
§. Ct. 2549 (2010)). Unfortunately, petitioner does not raise any claims in the present federal habeas corpus
petition. (Dkt. No. 1 at 5). Instead, he “prays to reserve the right to amend all grounds until he full[y]
exhaust[s] all state court remedies.” (/d.).

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STATEMENT

Petitioner finds himself in a predicament. He raised a number of claims on a direct appeal and now
wishes to raise more claims in the state postconviction proceeding, including ineffective assistance of counsel
arguments. “[U]nder Illinois law, a collateral postconviction proceeding is most often the first point at which
an ineffective assistance of counsel claim will be presented.” Iilinois v. Ligon, 940 N.E.2d 1067, 1078 (Ill.
2010). At present, any postconviction claim would not be fully exhausted for purposes of federal habeas
corpus review because petitioner must raise the claim to all levels of the Illinois courts including in a petition
for leave to appeal to the Supreme Court of Illinois. Bland v. Hardy, 672 F.3d 445, 449 (7th Cir. 2012).
Petitioner did present claims on a direct appeal through the full Illinois court process including to the Illinois
Supreme Court. But, the timely appeal issue appears to be presently stopping the exhaustion of his
postconviction claims. Thus, petitioner can either only proceed in a federal habeas corpus petition with his
direct appeal claims (and thus abandon any postconviction claims such as ineffective assistance of counsel),
or attempt to continue with his so far unsuccessful postconviction appeal efforts. Burton v. Stewart, 549 U.S.
147, 154 (2007) (per curiam) (citations omitted).

But an attempt to proceed with the postconviction claims in light of the denial of his request to bring
an out of time appeal presents its own risk to petitioner. The one year statute of limitations period is only
statutorily tolled while there is a properly filed application for a state postconviction or other collateral review
pending. 28 U.S.C. § 2244(d)(2). Even if petitioner’s subsequent efforts to bring an postconviction petition
appeal are granted, there will be a period of time (the intervening period before his out of time appeal is
granted) when there is no permissible statutory tolling. Griffith v. Rednour, 614 F.3d 328, 329-31 (7th Cir.
2010). If the federal habeas corpus petition is untimely, all of petitioner’s claims (both raised on direct appeal
and postconviction review), would be subject to dismissal under the federal statute of limitations.

Petitioner’s apparent Illinois state law arguments for an out of time state postconviction appeal have a
basis in Illinois law. This Court, of course, must leave it to the Illinois Courts to evaluate their own law on
the appeal issue. But the merits of petitioner’s present efforts to appeal in Illinois do impact this Court
consideration of whether it should grant him a stay of his present federal habeas petition. Rhines v. Weber,
544 U.S. 269, 277 (2005) (instructing that a district court should not stay a federal habeas corpus petition
when the prisoner’s efforts at exhaustion are ’plainly meritless”).

Illinois law recognizes that a prisoner may bring an out of time appeal from the denial of a
postconviction petition when the state trial court clerk fails to provide him proper notice of the dismissal.
Hlinois v. Clark, 869 N.E.2d 1019, 1028-29 (Ill. App. Ct. 2007). Although the full state court record is not
before the Court, petitioner claims that he did not receive the proper notice of the postconviction denial
resulting in being deprived of his state appeal rights. As a second and distinct possibility for petitioner, the
Illinois Supreme Court’s supervisory authority under the Illinois Constitution provides that court with an
“unequivocal grant of power” that it has used in the past to grant out of time appeals. Ilinois v. Whitfield,
888 N.E.2d 1166, 1177 (Ill. 2007); Minois v. Lyles, 840 N.E.2d 1187, 1193 (Ill. 2005).

Petitioner has plausible arguments as to why he should receive an out of time appeal on
postconviction review. Without a proper appeal of the denial of his state postconviction petition in the state
trial court, petitioner faces the inability to exhaust his claims raised in the state postconviction proceeding for
federal habeas corpus purposes. Furthermore, whether the out of time appeal is granted by the state court,
petitioner also faces the possibility that the postconviction proceeding will not toll a portion the federal statute
of limitations period.

Petitioner faces significant uncertainly regarding whether the Illinois courts will ultimately adjudicate

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STATEMENT

his postconviction petition or continue to reject his efforts to bring an untimely appeal. In this type of
situation, it is appropriate to grant petitioner a protective stay of his present federal habeas corpus petition so
that he may attempt to complete his state exhaustion efforts. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005);
Rhines, 544 US. at 276-77.

Petitioner, however, has failed to raise any claims in his present federal habeas corpus petition. This
is a serious problem in his efforts to bring an effective protective stay in this Court. The filing of the present
federal habeas corpus petition is, by itself, not enough to toll the federal statute of limitations, or otherwise
provide petitioner with a stay of the federal limitations period. Duncan v. Walker, 533 U.S. 167, 181 (2001).
Petitioner wants to receive a stay now and add claims later. But, these claims added at a future date will not
relate back to the present federal habeas corpus petition, and so the timeliness of claims added in the future
will be based on that later date when they are filed. Federal habeas corpus claims filed in a second petition
only relate back to the first petition for statute of limitations purposes when the claims presented in the first
and second petition share a “common core of operative facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005). By
definition, there cannot be relation back from a claims in a future federal habeas corpus petition to the current
petition because the current petition does not contain any claims.

Thus, petitioner is instructed to submit a proposed amended federal habeas corpus petition detailing
his federal claims within twenty-eight days of the entry of this order. Petitioner shall also submit a written
report detailing what claims he is presently attempting to exhaust in his postconviction proceedings, and those
claims that were previously exhausted in his direct appeal proceedings. Petitioner should also detail the
current status of his state postconviction proceedings.

The amended petition must be on the form required under Local Rule 81.3(a) of this court. The
petitioner must write both the case number and the judge’s name on the amended petition and return it to the
Prisoner Correspondent. As with every document filed with the court, the petitioner must include the original
plus a judge’s copy; he must also provide a copy to the Chief, Criminal Appeals Division, Office of the
Illinois Attorney General, 100 W. Randolph Street, 12th Floor, Chicago, IL 60601. Every copy of the
amended habeas petition must include a complete set of any exhibits attached to the original amended
petition.

Petitioner is admonished that the amended petition supercedes the original petition. In other words,
after the petitioner files an amended petition, the court will no longer consider the original petition. Thus, any
information contained in the original petition will not be considered if it is not included in the amended
petition. Furthermore, inmates generally have only one opportunity to seek federal habeas review. 28 U.S.C.
§ 2244(b). Therefore, the petitioner should fill out his amended petition carefully and completely, including
any and all grounds he wants the court to consider in determining the validity of his conviction.

Petitioner is warned that failure to comply with these directives will result in summary dismissal of
this case pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254. Petitioner’s
motion for appointment of counsel (Dkt. No. 4), is denied. Counsel is traditionally appointed in a habeas
corpus proceeding only if an evidentiary hearing is needed or if the interests of justice require. See Martel v.
Clair, 132 S. Ct. 1276, 1285 (2012); Rule 8(c), Rules Governing Section 2254 Cases. The Court must first
consider petitioner’s amended federal habeas corpus petition before determining whether counsel is
necessary.

The Clerk is directed to send the petitioner an amended habeas form and instructions for filing along

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