Seventh Circuit: Postconviction Relief Petition Still Pending in Illinois Court 20 Years After Filing Entitles Petitioner to Seek Federal Habeas Relief Without First Exhausting State Remedies
by Richard Resch
The U.S. Court of Appeals for the Seventh Circuit held that because petitioner’s Illinois postconviction relief petition had been pending in state court for over 20 years, state postconviction remedies proved “ineffective,” entitling him to seek federal habeas relief under the terms of 28 U.S.C. § 2254(b)(1) without first waiting for further relief in Illinois courts.
In 1999, two separate juries convicted James Evans of murder and soliciting murder. He received sentences of 60 years for the former and 47 years for the latter to run consecutively. The convictions were both affirmed on direct appeal. In 2003, Evans filed a petition for postconviction relief in state court, claiming that he was innocent and that the prosecution engaged in serious misconduct during both prosecutions.
After nearly 20 years, the state courts still have not resolved Evans’ petition for postconviction relief due, in large part, to the conduct of the State. For example, in December 2008, Evans requested copies of audio recordings that he claims were manipulated by the prosecution; the court ordered the State to “provide all copies” of the recordings to Evan. But it failed to comply and would continue to do so for the next two-and-a-half years, and even then, it did not produce all the recordings. In September 2011, the court ordered the State to produce the remaining recordings. The State claimed that it was not in possession of the missing tapes, but they should have been easily located and produced because the trial court had copies. However, two more years passed before the clerk’s office granted Evans permission to review the exhibits. Evans alleged that some recordings were still missing.
The foregoing is just one example of the multitude of delays and missteps that occurred in Evans’ 20-year quest to have his postconviction claims heard on the merits. In 2018, he sought a writ of mandamus from the Illinois Supreme Court, directing the State to comply with discovery requests and the court to adjudicate his case, but the Supreme Court denied his motion.
In 2019, more than 16 years after he first sought postconviction relief in state court, Evans filed a petition in federal court under § 2254 for postconviction relief, arguing that the exhaustion required of § 2254(b)(1) is inapplicable to him because the state postconviction process had proven ineffective for him due to the inordinate delays. He also argued that the delays have prejudiced his case because two witnesses who would have supported his claims of prosecutorial misconduct have died since he first sought state postconviction relief. In response, the State placed nearly all the blame for the delays on Evans. The U.S. District Court for the Southern District of Illinois agreed with the State’s position and dismissed Evans’ petition for failure to exhaust state court remedies. He timely appealed.
The Court began its analysis by noting that the federal habeas statute requires state prisoners to exhaust state habeas remedies before seeking federal postconviction relief. See § 2254(b)(1). That is, if a state provides a process for state habeas or state postconviction relief, state prisoners are required to exhaust those procedures before they are eligible to seek federal postconviction relief. See Lane v. Richards, 957 F.2d 363 (7th Cir. 1992).
However, the Court stated that the “exhaustion requirement is neither ironclad nor unyielding,” explaining that Congress anticipated that there would be rare cases in which there is “an absence of available State corrective process” or where the state remedies are “ineffective to protect the rights of the” state prisoner. § 2254(b)(1)(B). Governing case law in the Seventh Circuit holds that state remedies can be “ineffective” or “unavailable” for purposes of § 2254(b)(1)(B) by a delay that is both inordinate and caused by the state. See Carter v. Buesgen, 10 F.4th 715 (7th Cir. 2021); Lane.
The Carter Court concluded that Marvin Carter’s four-year wait for Wisconsin courts to rule on the merits of his direct appeal was both “extreme” and also attributable to the State. In Carter, the court clerk’s office neglected to send necessary documents for months, and the Court of Appeals granted the public defender’s multiple requests for extensions “in rote fashion.” Although it was Carter’s own counsel who persistently requested extensions, the Carter Court faulted the “systemic deficiency” of the State’s entire judicial system because no one intervened, not the public defender’s office, attorney general, or the courts. Consequently, the Carter Court concluded that Wisconsin’s appellate process was “ineffective to protect rights secured by the United States Constitution” and permitted Carter to proceed directly to federal court under § 2254.
Turning to the present case, the Court pointed out that the Carter Court characterized the four-year delay experienced by Carter as “extreme and tragic.” Notably, the Seventh Circuit has ruled similarly with respect to even shorter delays of three-and-a-half years, see Lowe v. Duckworth, 663 F.2d 42 (7th Cir. 1981), and even 17 months, see Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) (per curiam). The determinative question is whether the delay in Evans’ case is “meaningfully attributable to the state,” the Court stated. It concluded that it was “in both a narrow and broad sense.”
Regarding the narrow sense, the Court stated that the, at least, three-year delay during discovery in turning over the requested recordings “would qualify as inordinate by itself.” In contrast to the District Court, the Court attributed responsibility for the “unjustifiable” delay to the State, which missed multiple deadlines to turn the recordings over to Evans and “failed to explain why it took so long to comply with a routine discovery request.” The Court explained that it could rule that Evans was subjected to an unjustifiable delay based solely on this three-year production delay alone. See Mucie v. Missouri State Dep’t of Corr., 543 F.2d 633 (8th Cir. 1976) (ruling ineffective state process where “it appears the state has been unnecessarily … dilatory). However, the added two-year delay for the court clerk to grant Evans permission to review the exhibits to his two cases is also attributable to the State, according to the Court. See Carter.
Turning to the broad sense, the Court declared that “Evans experienced a breakdown in the state’s postconviction process.” It did not base this characterization solely on the 20-year delay but also on the “general lack of action or urgency by all involved.” The Court chided prosecutors for “allowing the case to linger indefinitely, and the state court … seems to have done nothing to move things along despite recognizing the barriers to relief Evans faced.” See Story v. Kindt, 26 F.3d 402 (3d Cir. 1994) (concluding a state process was ineffective where the state court “neglected [the petitioner’s] case for almost eight years” due to outdated docket management procedures).
The Court acknowledged that some of the delay was attributable to Evans and his counsel. However, it rejected the State’s attempt to “turn § 2254(b)(1)(B) into a mechanical accounting exercise. The proper analysis cannot come from dividing up calendars or tallying delays in an Excel spreadsheet.” The Court reiterated what the Carter Court had to say about the delay in that case: “The length of the delay should have sounded an alarm bell within the [state] courts … [and] even in the Attorney Generals’ office.” But instead, the State insisted on blaming Evans while “disclaiming its own responsibility for this procedural failure,” the Court stated. Thus, the Court concluded that “Illinois’s postconviction remedies proved ‘ineffective’ for Evans.”
Accordingly, the Court, “with an accompanying sense of urgency,” vacated and remanded the case to the District Court with instructions to review Evans’ petition, consistent with its opinion.
See: Evans v. Wills, 66 F.4th 681 (7th Cir. 2023).
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