Walter Brzowski v. Michael Melvin
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Daniel A. Manion, Circuit Judge and Michael S. Kanne, Circuit Judge. [6850206-1]  [16-2107, 17-1289]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 24, 2017
Decided June 26, 2017
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
Nos. 16-2107 & 17-1289
WALTER J. BRZOWSKI,
Appeals from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 14-cv-04014 — Jorge L. Alonso,
No. 16-cv-09961— Milton I. Shadur,
In this appeal, Walter Brzowski argues that the State of Illinois violated his
Fourteenth Amendment rights by revoking his supervised release without grounds and
by keeping him imprisoned beyond his prison and supervised-release terms. He
requests that we reverse the district court’s denial of his habeas petition and grant him
We decline to do so because Brzowski has not yet exhausted his state-court remedies.
See 28 U.S.C. § 2254(b)(1)(A) (federal habeas relief “shall not be granted” unless the
Nos. 16-2107 & 17-1289
petitioner has exhausted the remedies available in state court). “Federal law requires
that state prisoners give state courts a fair opportunity to act on their claims before
bringing habeas claims in federal court.” Spreitzer v. Schomig, 219 F.3d 639, 644–45 (7th
Cir. 2000). “The requirement that state courts have the first opportunity to cure a claim of
continued confinement in an unconstitutional fashion stems from the understanding
that state courts are equally obliged to follow federal law and from the desire for comity
between state and federal court systems.” Id. at 645.
Here, Brzowski is in the process of exhausting his state-court remedies. And he has
thus far been successful. Although the state circuit court denied Brzowski’s habeas
petition, Brzowski v. Spiller, No. 14 MR 2630 (Ill. Cir. Ct. Will Cty. Mar. 2, 2016), on June 8,
2017, the Illinois Appellate Court accepted Brzowski’s arguments and reversed, holding
that Brzowski “has served his time,” and thus, “he is entitled to immediate release from
[Illinois Department of Corrections] custody.” Brzowski v. Pierce, 2017 IL App (3d)
160228‐U, ¶ 20. The Illinois Appellate Court noted that the record was silent as to
whether Brzowski was properly incarcerated for any other charges or convictions, so it
remanded the case for further proceedings, directing that, “[u]nless the trial court
determines that [Brzowski] should remain in custody for such other reason, he should be
released immediately.” Id.
Despite the Illinois Appellate Court’s decision granting Brzowski’s habeas petition,
Brzowski contends that this appeal is not moot. Even though the State has promised not
to appeal the appellate court’s decision, the mandate has not issued in that case, and will
not do so until at least July 13, 2017. See Ill. S. Ct. R. 368(a) (appellate court mandate
issues not earlier than 35 days after opinion, “unless the court orders otherwise”). After
the appellate court mandate issues, Brzowski will remain in custody awaiting the circuit
court hearing to determine whether he is in custody on other unrelated charges or
We agree with Brzowski that, because the mandate has not yet issued, the relief
afforded him remains prospective, and at this point, this appeal is not moot.
Nevertheless, the state-court process appears to be proceeding apace, and Brzowski
should be released from custody soon—barring some other reason for his incarceration,
which is not before us in this appeal.
Accordingly, we will defer to the principles of comity and federalism and allow the
state-court process to run its course. Because Brzowski has not yet exhausted his
state-court remedies, we AFFIRM the district court’s judgment.
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