Apprendi). But the present action cannot rest on such

‘ speculation. Hence, because “it plainly appears from the face of

the petition and any exhibits annexed to it that the petitioner
is not entitled to relief in the district court” (Rule 4 of the
Rules Governing Section 2254 Cases in the United States District
Courts), this Court determines that no evidentiary hearing is
required (Rule 8 of the same Rules), and both the Petition and

this action are dismissed.?

Co Man. Van etue.

Milton I. Shadur
Senior United States District Judge

Date: April 26, 2001

* Because a future decision by the United States Supreme

Court that the constitutional rule announced in Apprendi should
be applied retroactively would potentially trigger the
commencement of a new time clock under Section 2244 (d) (1) (C),
this dismissal is without prejudice to any possible future
submission of an Apprendi-linked issue (see Hernandez v. United

States, 226 F.3d 839, 841 (7% Cir, 2000)).

4



stated--and this Court also finds, based on its own review and
analysis of the Answer and its exhibits--that all but one of

Mumin’s claims are procedurally defaulted (see O'Sullivan v.

Boerckel, 526 U.S. 838 (1999), adhered to in White v. Godinez,

192 F.3d 607 (7 Cir. 1999) (per curiam) ) .?

As attorney Korenkiewicz has also perceptively reflected
(Reply at 2), Mumin might conceivably advance one claim (the
asserted invalidity of his sentence enhancement by reason of his
prior felony convictions) as arguably coming within the scope of

Apprendi v. New Jerse , 530 U.S. 466 (2000). But any such claim

would be doomed to failure in this federal court, given the
definitive refusal by our Court of Appeals to apply Apprendi
retroactively on collateral review in the absence of a directive
from the United States Supreme Court (Talbott v. Indiana, 226
F.3d 866, 868 (7 Cir. 2000)).

If Mumin wishes to travel that route at the present time, he
would have to try it in the state court system (which has sent

mixed signals as to its possible retroactive application of

had timely filed a petition for leave to appeal to the Illinois
Supreme Court from the Illinois Appellate Court's affirmance of
the denial of his post-conviction petition, followed by a Supreme
Court order denying such leave to appeal. There is however no
record of such a filing or of such an order, and this Court knows
of no way in which Mumin can seek to contradict the state court
records. Accordingly 0’Sullivan does apply to render Mumin’s



er en A

United States District Court, Northern District of Illinois

AY
Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 00 C 8155 DATE 4/26/2001
CASE USA ex rel. Dukhan Iqraa Jihad vs. Jim Ryan
TITLE
{in the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
Q) im Brief in support of motion due
(3) Bo Answer brief to motion due - Reply to answer briefdue___.
(4) im) Ruling/Hearing on set for at
(5) 0 Status hearing[held/continued to] [set for/re-set for] on set for _ at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(©) oO Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OGeneral Rule21 CIFRCP41(a\(1) C1 FRCP41(a)(2).
ao) «of [Other docket entry] Enter Memorandum Opinion and Order. Because “it plainly appears from the
face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district
court” (Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts), thisCourt }
determines that no evidentiary hearing is required (Rule 8 of the same Rules), and both the Petition and
this action are dismissed.
(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.
v | Notices mailed by judge’s staff.
Notified counsel by telephone,
Docketing to mail notices, ’
Y | Mail AO 450 form. injlats
Copy to judge/magistrate judge
arzsrn001
courtroom date mailed notice
SN deputy’s sn
initials
Date/time received in
central Clerk's Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.
DUKHAN IQRAA JIHAD MUMIN, #51778

Petitioner,

v. No. 00 C 8155

JIM RYAN, Attorney General, et al.,

)
)
)
)
)
)
)
)
)
)

Respondents. ‘ph ous qu

MEMORANDUM OPINION AND ORDER

Shortly after Dukhan Iqraa Jihad Mumin (*Mumin”) had
submitted a self-prepared and prepaid Petition for Writ of Habeas
Corpus (“Petition”) under 28 U.S.C. §2254' in which he has
challenged his conviction and sentence following his guilty plea
to a single count of forgery, this Court--based on its threshold
review of the Petition--issued a brief January 2, 2001 memorandum
opinion and order (“Order”) that said “it does appear from the
Petition that Mumin has exhausted his available state court
remedies as required by Section 2254 (b) (1) (A) (see Petition at 2-
4), that the Petition is timely filed in accordance with Section
2244 (d) (1), and that the substantive allegations in the Petition
set out one or more claims that are substantively colorable.”
Accordingly the Order:

1. appointed the Federal Defender Panel to represent

Mumin under the provisions of the Criminal Justice Act (18

* All further references to Title 28's provisions will

simply take the form “Section--.”



U.S.C. §3006A(a) (2) (B)); and
2. ordered respondent Illinois Attorney General Jim

Ryan to file an answer or other pleading in response to the

Petition, in accordance with Section 2254 Rules 4 and 5, on

or before February 16, 2001.

Under its regular practice of random assignments (based on who is
acting as the duty attorney on the date of assignment), the
Federal Defender Panel then assigned Mumin’s representation to
Robert Korenkiewicz--a lawyer well-known to this Court from prior
experience as a thoughtful, conscientious and highly able lawyer
in the criminal practice.

After obtaining an extension of time to permit the
assemblage of the numerous documents necessary for consideration
of the Petition, on March 16 the Tllinois Attorney General filed
an Answer to the Petition, together with the full panoply of
exhibits needed for this Court’s analysis and review. Then on
April 25 attorney Korenkiewicz filed a timely “Reply on Behalf of
Petitioner Dukhan I.J. Mumin’” (“Reply”) that addressed the Answer
{as this Court had previously directed).

As could have been anticipated, attorney Korenkiewicz’ Reply
was both accurate and candid, as befits a knowledgeable appointed
counsel aware of his responsibilities both to his client and to
the court. Based on his review of both the Answer and the entire

state court record in Mumin’s case, attorney Korenkiewicz has