For the foregoing reasons, Respondent’s Motion to Dismiss is granted. Petitioner’s writ of

habeas cérpus is dismissed without prejudice.

Dated: \ /prme 2b 200%
/

JO) .D.
United States District Judge



3d__, 2003 WL 21180123 (Ill. App. Ct. May 20, 2003).

A habeas petitioner must exhaust his state remedies before a federal court can consider his
claim. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982). However, Section
2254(b) provides two exceptions to the exhaustion requirement: (1) when there exists no state
corrective process and (2) when circumstances render the state process ineffective to protect the
petitioner’s rights. See 28 U.S.C. § 2254(b); Sceifers v. Trigg, 46 F.3d 701, 703 (7th Cir. 1995). A
state corrective process may be rendered ineffective if undue delay is inordinate and unjustified. See
Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981). However, a prisoner’s claim for habeas corpus
telief based on the state court’s delay in processing his appeal is moot once the state court decides
the appeal. See Allen v. Duckworth, 6 F.3d 458, 460 (7th Cir. 1993) (Allen); Potts v. Brown, 2002
WL 1972243 (N.D. Il. Aug. 27, 2002).

Here, Dupree’s first claim is moot because the state court has ruled on his appeal, and he
would gain nothing if he won this claim. Accordingly, Dupree’s first claim is dismissed without
prejudice. See Allen, 6 F.3d at 460; Potts, 2002 WL at * 2.

Deprivation of Due Process by Amending Sentencing Without Notice

As to Dupree’s second claim, which pertains to Case No. 97-CF-662, Dupree asserts error
in the amendment of his sentence. The documents that Dupree has filed with the Court indicate that
Dupree has not appealed his sentence or the amendment to his sentence to the Illinois Appellate
Court. Furthermore, he is still presently seeking review of the amended sentencing order in the
circuit court as demonstrated by the motion/correspondence he has filed in January and March of
2003. Accordingly, Dupree has not exhausted his state remedies; and his second claim is dismissed

without prejudice.


Minite Order en (06097)

nited States District Court, Northern District of linois

nemeataackecNear | John W. Darah Stn ene te
CASE NUMBER 03 C 993 DATE 6/26/2003
CASE CEDRIC DUPREE vs. STEVEN MOTE
TITLE
[In the following box (a) indicate the party filing the motion, e.g.. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
q@) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
@) Oo Answer brief to motion due___. Reply to answer brief due___.
@ oO Ruling/Hearingon___set for__at
(5) oO Status hearing[held/continued to] [set for/re-set for]on__setfor____at
(6) oO Pretrial conference[held/continued to] [set for/re-set for}on__setfor___—at__—.
(a) a Trial[set for/re-set for]on__at
(8) oO (Bench/Jury trial] [Hearing] held/continued to___aat
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (Local Rule 41.1 OFRCP41(a\(1) OFRCP41(a\2).

(0) «=x [Other docket entry] Status hearing held. Enter Memorandum Opinion And Order. Respondent’s
motion to dismiss is granted. Petitioner’s writ of habeas corpus is dismissed without prejudice.

(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required, umber of ices
Notices mailed by judge's staff.

0 2083
Notified counsel by telephone. pUN 3 B nd

o | Docketing to mail notices.
Mail AO 450 form. Lunog LOMASIa“s) >
Copy to judge/magistrate judge. Wad319 a
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central Clerk's Office aling deputy inils



UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION DOCKETED
JUN 39 2003
CEDRIC DUPREE, )
)
Petitioner, )
) No. 03 C 0993

v. )

) Judge John W. Darrah
STEVEN MOTE, Warden, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner, Cedric Dupree (“Dupree”), seeks a writ of habeas corpus against the Pontiac
Correctional Center Warden, Steven Mote (“Respondent”), pursuant to 28 U.S.C. § 2254. Dupree
raises two grounds for relief: (1) deprivation of due process because he has been denied the right
to an appeal and (2) deprivation of due process because one of his sentences was amended without
notice to Dupree ofsuch amendment. Presently before the Court is Respondent’s Motion to Dismiss
on grounds of failure to exhaust state remedies.

Dupree was charged with theft by deception in February 1997 in Cook County, Illinois (Case
No. 97-CR-4800). A jury was selected on June 18, 1997. Dupree was informed by the trial court
judge that he was required to appear in court when his case was on trial and that he could be tried
and sentenced in his absence should he choose not to appear. The jury trial began on June 19, 1997,
at which time Dupree failed to appear. That same day, the jury returned a verdict of guilty. In July
1997, Dupree was sentenced in absentia to ten years’ imprisonment.

In June 1998, Dupree was convicted in Rock Island County of false personation of a peace
officer (Case No. 97-CF-662). The Judgment - Sentence Report dated April 6, 1998, for Case No.

97-CF-662 states that Dupree was sentenced to five years’ incarceration concurrent with the sentence



imposed in Case No. 97-CR-4800. A December 12, 2002 First Amended Judgement - Sentence
states that the sentence is to be served consecutive with the sentence imposed in Case No.
97-CR-4800.

Deprivation of Due Process By Denial of Right to Appeal

In September 1998, Dupree filed his Notice of Appeal in Case No. 97-CR-4800 in the First
District Illinois Appellate Court (“Appellate Court”). In the appeal, Dupree raised seven issues: (1)
whether Dupree was prejudiced by the admission of prejudicial and excessive evidence; (2) whether
the trial court improperly refused to instruct the jury that Dupree’s absence from the trial should be
given no weight; (3) whether Dupree was denied a fair trial when the State argued that his fleeing
the scene of the crime demonstrated guilt; (4) whether the trial court improperly allowed witnesses
to testify that Dupree improperly acted as an attorney; (5) whether the State failed to meet its burden
of providing evidence of Dupree’s intent; (6) whether the State made an improper closing argument,
and (7) whether Dupree’s extended sentence was excessive.

The appeal was fully briefed in September 2000; and oral arguments were held on November
8, 2000. On March 19, 2002, Dupree filed a motion with the Appellate Court seeking an expedited
decision. On April 18, 2002, the motion was-granted. After still not receiving a decision, Dupree
filed another motion for an expedited decision in early 2003.

Petitioner filed the instant action on February 10, 2003, alleging as grounds, inter alia, the
failure of the Appellate Court to rule on his appeal. Respondent filed this Motion to Dismiss. After
the parties completed the briefs on the Motion to Dismiss before this Court, the Appellate Court had
not yet issued an opinion on the appeal. However, on May 20, 2003, the Appellate Court issued an

opinion on the appeal, affirming Dupree’s conviction and sentence. Jilinois v. Dupree, __ Ill. App.