Opinion
Case No. 15 C 10289
11-18-2015
UNITED STATES OF AMERICA ex rel. MARVIN SUMLIN (#B04287), Petitioner, v. NICHOLAS LAMB, Respondent.
MEMORANDUM ORDER
Marvin Sumlin ("Sumlin") has just filed this action seeking to invoke 28 U.S.C. § 2254 to challenge his November 18, 2008 conviction and the resulting natural life sentence on charges of aggravated criminal sexual assault and aggravated kidnapping. Sumlin has accompanied his Section 2254 Petition for Writ of Habeas Corpus ("Petition") with another Clerk's-Office-supplied document: an In Forma Pauperis Application ("Application").
All further references to Title 28's provisions will simply take the form "Section --," omitting the prefatory "28 U.S.C. §." --------
To turn to the latter document first, Sumlin is obviously unaware that the only filing fee required to be paid for any Section 2254 Petition is the modest sum of $5. Despite the level of poverty portrayed in the Application, Sumlin is obviously capable of paying that amount (the authorized fiscal officer at Stateville Correctional Center, where Sumlin is in custody, has certified that the average monthly deposit to Sumlin's account at the institution has been something over $35). Accordingly the Application is denied and Sumlin is ordered to pay the $5 filing fee on or before November 21, 2015.
As for the Petition itself, Sumlin has not supplied a good deal of the information needed to see whether it was timely filed: that is, filed within the one-year limitation period prescribed by Section 2244(d)(1) as tolled by the provisions of Section 2244(d)(2). But this Court has independently determined, by supplementing Sumlin's scant and skeletal information set out in the Petition, that Section 2244 does not bar the current Petition (a task accomplished in substantial part but not entirely through obtaining copies of the Illinois Appellate Court's opinions (1) affirming Sumlin's conviction and sentence on direct appeal (People v. Sumlin, No. 1-090746 (2011 WL 9686258 (1st Dist. Apr. 22, 2011)) and (2) affirming the Circuit Court's dismissal of Sumlin's pro se petition for relief under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. (People v. Sumlin, 2015 IL App (1st) 130364-U)). Accordingly this opinion turns to consideration of Sumlin's substantive claims.
Sumlin's Ground One charges that the state trial court denied him a fair trial by some of its rulings on evidence in which it rejected motions by Sumlin's trial counsel to call certain witnesses. As Sumlin would have it, the state trial court "relied on an incorrect reading of People v. Grano, 286 Ill.App.3d 278, 289 (2d Dist. 1996)" and also failed to follow the decision in People v. Santos, 211 Ill.2d 395 (2004). But those contentions are simply a reiteration of the arguments advanced by his counsel in the unsuccessful direct appeal that was dispatched by the unpublished opinion reported at 2011 WL 9686258. Those contentions were rejected as a matter of state law in that opinion, which discussed both the Grano and Santos opinions and provided what was certainly an independent and adequate state law basis for decision that posed no federal constitutional problems.
Sumlin's Ground Two charges his trial counsel with constitutionally inadequate representation by having failed to file a motion to suppress what Sumlin characterizes as "illegal evidence." But that contention is torpedoed entirely by the analysis, under the seminal teaching of Strickland v. Washington, 466 U.S. 668, 687-88 (1984), that was set out in Paragraphs 12 through 14 (of which a copy is attached) in the Illinois Appellate Court's above-cited opinion affirming the summary dismissal of Sumlin's state post-conviction petition.
Conclusion
Sumlin's In Forma Pauperis Application (Dkt. No. 3) is denied, and he is ordered to pay the $5 filing fee for his current Petition to the Clerk of this District Court on or before November 30, 2015. As for the merits of the Petition (or more precisely, the lack of merit in the Petition), Sumlin has utterly failed to meet either standard specified in Section 2254(d), so that "it plainly appears from the petition and any attached exhibits 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 ("Section 2254 Rules")).
Accordingly, as directed in Section 2254 Rule 4, this Court dismisses the Petition and directs the Clerk of this District Court to notify Sumlin. Finally, this Court (1) rules in accordance with Section 2254 Rule 11(a) that a certificate of appealability is denied and (2) advises Sumlin that he may seek a certificate from the Court of Appeals under Fed. R. App. P. 22.
/s/_________
Milton I. Shadur
Senior United States District Judge
Date: November 18, 2015