Ellison v. Quinn
| Decision Date | 19 March 2013 |
| Docket Number | CIVIL NO. 13-cv-00168-MJR |
| Parties | BENNIE K. ELLISON, No. R-00575, Petitioner, v. PAT QUINN, ADAM MONREAL, TIMOTHY J. JOYCE, JOSEPH G. KAZMIERSKI, MARZELL L. RICHARDSON, JR., MICHAEL PELLETTER, and ALAN GOLDBERG, Respondents. |
| Court | U.S. District Court — Southern District of Illinois |
Petitioner Bennie K. Ellison, is currently incarcerated at Stateville Correctional Center on a temporary basis; he is officially assigned to Lawrence Correctional Center, which is within the Southern District of Illinois. Ellison is serving a six-year sentence for being an armed habitual criminal, and a 10-year sentence for manufacturing and delivering cocaine. Ellison, proceeding pro se, seeks leave to file a "Conspiracy Hate Crimes Petition of Mandamus" (Doc. 1). Because leave of court is not required to initiate a mandamus action, Ellison's petition has been filed (Doc. 2). The petition is aimed at the Governor of Illinois, Chairman of the Prisoner Review Board, three Circuit Court judges, and three members of the Illinois Appellate Defender's Office.
In essence, Ellison wants this district court to order that Ellison be pardoned and/or granted clemency, and his convictions be expunged relative to the following cases: No.09-CR-6542, 09-CR-6863 and 10-CR-5208.1 He contends that, because the respondents have failed to apply state and federal laws, statutes and Supreme Court rulings, he has been kept in prison despite his actual innocence. Ellison further asserts that the respondents' conspiracy constitutes a hate crime against his Messianic Hebrew religion and racial discrimination, and his unjust incarceration amounts to kidnapping.
Most recently, Ellison filed "Sua Sponte Exigent Petition for Immed[iate] Release Writ of Actual Innocence Habeas Corpus," pursuant to 28 U.S.C. §§ 2241 and 2254 (Doc. 6). This petition attacks only Case Nos. 09-CR-6863 and 09-CR-6542, omitting 10-CR-5208 (see Doc. 6, p. 8). The proposed amended petition makes the same basic assertions as the petition for mandamus. However, Ellison makes clear that he is also taking issue with his request for a pardon, which is pending with Governor Quinn, at least as of February 7, 2013 (see Doc. 6, p. 17). The Court construes this document as a motion for leave to amend the petition.2 FederalRule of Civil Procedure 15(a) dictates that a party may amended once as a matter of course. Therefore, the Court will consider all three bases of jurisdiction.
Ellison also moves for leave to proceed in forma pauperis, pursuant to 28 U.S.C. 1915 (Doc. 3), and for appointment of counsel (Doc. 4). He incorporates these same requests in his recent filing (Doc. 6), but the Court considers them duplicative and has not docketed them as separate motions.
Under 28 U.S.C. § 1915A, as well as Rules 1(b) and 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court is required to conduct a prompt threshold review of the complaint. Accepting Petitioner's allegations as true, the Court finds that this action is subject to summary dismissal for the following reasons.
The writ of mandamus has been abolished. See Fed.R.Civ.P. 81(b). Nevertheless, there are two federal statutes that a party may invoke to obtain a writ of mandamus: 28 U.S.C. § 1361 and 28 U.S.C. § 1651. Ellison has not specified a basis for his action.
Section 1361, titled "Action to compel an officer of the United States to perform his duty," provides: "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Thus, federal courts have no power under Section 1361 to issue writs of mandamus to state officers.
Section 1651(a) provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictionsand agreeable to the usages and principles of law." Unlike Section 1361, Section 1651 is only a mechanism by which the Court asserts its jurisdiction, it is not a source of jurisdiction. United States v. Illinois Bell Telephone Co., 531 F.2d 809, 814 (7th Cir. 1976).
A writ of mandamus pursuant to Section 1651 "has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976) (internal citations and quotations omitted and emphasis added). Generally, a federal court cannot "issue mandamus to a state judicial officer to control or interfere with state court litigation." In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001) (citing White v. Ward, 145 F.3d 1139 (10th Cir.1998) (per curiam); Demos v. United States District Court, 925 F.2d 1160 (9th Cir. 1991); Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988); Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973); Haggard v. Tennessee, 421 F.2d 1384 (6th Cir. 1970)). Similarly, this Court lacks jurisdiction "to issue a mandamus against state officials for violating their duties under state law," Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 469 (7th Cir. 1988); see also In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001).
Furthermore, there is no apparent basis for a federal constitutional claim that would permit mandamus relief. The Illinois Constitution provides that Ill. Const.1970, art. V, § 12. This clearly is a matter of discretion, not something that can be mandated. There is no constitutional right to a pardon or clemency, not even to a hearing on those matters. See Herrera v. Collins, 506 U.S. 390, 412-417 (1993). See also District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 67-68 (2009) ().
For these reasons, the Court shall dismiss the petition for writ of mandamus for lack of subject matter jurisdiction.
Ellison fairs no better under 28 U.S.C. § 2254.
The Anti-Terrorism and Death Penalty Act of 1996 ("AEDPA") allows a district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). According to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts, if the petitioner is currently in custody, the proper respondent is the sate officer who has custody of the petitioner.
None of the eight named respondents has custody of Petitioner Ellison. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 895 (9th Cir. 1996) (). Normally, the Court would merely substitute the warden of the prison where Ellison is in custody, but that location and Ellison's custody status is not at all clear.
Ellison's Section 2254 petition has another more problematic flaw that this Court cannot remedy—it is a successive petition.
Whether proceeding under 28 U.S.C. § 2254 or § 2255, a habeas petitioner must get permission from the Court of Appeals before filing second or successive petition in the district courts. 28 U.S .C. § 2244(b); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). See also Nunez v. U.S., 96 F.3d 990, 991 (7th Cir.1996) (). A subsequent motion is "second or successive" within the meaning of the statute when the same underlying conviction is challenged. See Dahler v. U.S., 259 F.3d 763 (7th Cir.2001).
Ellison has filed multiple Section 2254 petitions, including but not limited to: Ellison v. Godinez, 13-CV-00373 (N.D. Ill. Nov. 19, 2012 (on transfer from S.D. Ill.)); Ellison v. Pfister, 12-CV-07248 (N.D. Ill. Aug. 24, 2012); and Ellison v. Hardy, Case No. 12-CV-06441 (N.D. Ill. Nov. 9, 2012). Ellison v. Godinez, 13-CV-00373 (N.D. Ill. Nov. 19, 2012), concerns the same two trial court judgments at issue here: Case Nos. 09-CR-6542 and 09-CR-6863. A petition will not be deemed successive if the later-filed petition raises previously unripe claims (United States v. Obeid,___F.3d___, 2013 WL 646511 at *3 (7th Cir. Feb. 22, 2013)), but that is not the situation. Ellison even presents the same arguments regarding actual innocence. Therefore, this present petition is clearly successive.
There is no indication that Ellison has obtained permission from the Court of Appeals to bring this case; therefore, dismissal is appropriate. See Walker v. Roth, 133 F.3d 454, 455 n. 1 (7th Cir. 1997) (). This Court lacks jurisdiction. Pavlovsky v. VanNatta, 431 F.3d 1063, 1064 (7th Cir. 2005).
Pursuant to 28 U.S.C. § 2241(c)(3), the writ of habeas corpus may extend to prisoners "in custody in violation of the Constitution or laws or treaties of the United States," which is, essentially, what Ellison is asserting.
Again, Ellison has failed to name a proper respondent to a Section 2241 petition. The person with immediate physical custody over the petitioner with the power to produce thepetitioner in court is the "person who has custody over" the petitioner for purposes of Section 2241, not the person under whose authority the petitioner is detained. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); Kholyavskiy v. Achim, ...
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