Thomas v. State of Illinois et al
Filing
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OPINION: Petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody 1 is DENIED. A Certificate of Appealability is also DENIED. Respondent's Motion to Dismiss as Unexhausted 12 is DENIED AS MOOT. CASE CLOSED. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 10/31/2014. (GL, ilcd)
E-FILED
Friday, 31 October, 2014 02:41:34 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
BRYAN J. THOMAS,
Petitioner,
v.
JASON GARNETT,1
Chief of Parole,
Respondent.
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No. 13-1472
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
In October 2013, Petitioner Bryan J. Thomas filed a Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (d/e 1). Petitioner argues that the state trial judge
who sentenced him did not order a term of mandatory supervised
release but that the Illinois Department of Corrections has added a
three-year term of mandatory supervised release to Petitioner’s
When Petitioner filed his Petition, he was housed at the Hill Correctional
Facility. In February 2014, Petitioner was released and placed on parole.
Therefore, in July 2014, the Court substituted Chief of Parole Darryl L.
Johnson as Respondent. On October 30, 2014, counsel for Respondent
advised the Court that Petitioner is now in the custody of Jason Garnett, who
has been named Chief of Parole for the Illinois Department of Corrections.
Pursuant to Federal Rule of Civil Procedure 25(d), Chief Garnett is substituted
as the proper party respondent.
1
sentence. Thereafter, the Illinois Appellate Court, Fourth District,
directed the trial court to issue an amended sentencing order
reflecting the three-year term of mandatory supervised release.
Petitioner argues that the addition of the mandatory supervised
release term increased his sentence without due process and in
violation of double jeopardy.
The Court finds that an evidentiary hearing is not warranted.
See Rule 8(a) of the Rules Governing Section 2254 Cases in the
United States District Courts. Moreover, although Petitioner has
not exhausted all of his available state court remedies, an
application for writ of habeas corpus may be denied on the merits
notwithstanding the failure to exhaust. 28 U.S.C. § 2254(b)(2). For
the reasons that follow, the Court finds that the Seventh Circuit’s
recent decision in Carroll v. Daugherty, 764 F.3d 786 (7th Cir.
2014) forecloses relief on Petitioner’s claim. Therefore, the Petition
is DENIED.
I. BACKGROUND
In June 2004, a jury found Petitioner guilty of unlawful
manufacture of a controlled substance in Adams County Circuit
Page 2 of 14
Court Case No. 04-CF-73. The trial court sentenced Petitioner to
20 years’ imprisonment. The judgment made no mention of a term
of mandatory supervised release. See Exhibit to Petition (d/e 1, p.
16).
Petitioner appealed, arguing that the State’s case hinged on
the testimony of an accomplice that was insufficient to support
Petitioner’s conviction, two of the jurors falsely stated during voir
dire that they were unacquainted with Petitioner, and the trial court
failed to make an adequate inquiry into Petitioner’s pro se
allegations of ineffective assistance of counsel. The appellate court
affirmed. People v. Thomas, No. 4-04-0552 (Ill. App. Ct. April 7,
2006) (d/e 12-1). The Illinois Supreme Court denied Petitioner’s
petition for leave to appeal. People v. Thomas, No. 102645 (Ill. Sept.
27, 2006) (d/e 12-2).
At some point, Petitioner learned (presumably from the Illinois
Department of Corrections) that he would have to serve a three-year
term of mandatory supervised release following his 20-year
sentence. See 730 ILCS 5/5-8-1(d)(1) (West 2004) (providing a
three-year term of supervised release for a Class X felony). In 2006,
Page 3 of 14
Petitioner filed a postconviction petition arguing, among other
issues, that mandatory supervised release was unconstitutional.
See Petition ¶ 11(a) (d/e 1). The trial court denied the petition. Id.
In April 2011, Petitioner filed a motion in the trial court
asserting that the three-year term of mandatory supervised release
should be vacated as void. See Petition ¶ 11(b) (d/e 1). Petitioner
challenged the addition of three years of mandatory supervised
release to Petitioner’s term by the Illinois Department of Corrections
because mandatory supervised release was not “issued” by any
court. Id. In July 2013, the trial court denied the motion, and
Petitioner appealed.
On appeal, Petitioner argued that the Illinois mandatory
supervised release statute, 730 ILCS 5-8-1(d)(1), was
unconstitutional because the statute automatically added a term of
mandatory supervised release to judicially imposed sentences. See
730 ILCS 5/5-8-1(d)(1) (West 2004) (“Except where a term of
natural life is imposed, every sentence shall include as though
written therein a term in addition to the term of imprisonment,”
which, for those sentenced after February 1, 1978, is identified as a
Page 4 of 14
mandatory supervised release term). Petitioner also argued that the
statute was contrary to Hill v. Wampler, 298 U.S. 460, 464 (1936),
which held that “[t]he only sentence known to the law is the
sentence or judgment entered upon the records of the court.”
On February 14, 2013, the appellate court entered a summary
order remanding the case with directions. People v. Thomas, No. 411-0871 (Ill. App. Feb. 14, 2013) (d/e 1, p. 18). The appellate court
found that the mandatory supervised release statute could be
interpreted in a way to preserve its constitutionality. People v.
Thomas, No. 4-11-0871 (Ill. App. Feb. 14, 2013) (d/e 1, p. 20).
Specifically, the court interpreted the statute “as requiring that the
applicable term of [mandatory supervised release] actually be
written in every sentence.” Id. Therefore, the court remanded the
case with directions to the trial court to issue an amended
sentencing order reflecting the three-year term of mandatory
supervised release. Id. The Illinois Supreme Court denied
Petitioner’s petition for leave to appeal. See People v. Thomas, No.
115789 (Ill. May 29, 2013) (d/e 1, p. 21).
Page 5 of 14
On remand, the trial court amended the original sentencing
order and mittimus by adding a three-year term of supervised
release to be served by Petitioner upon his release from the Illinois
Department of Corrections. See Exhibit to Petition (d/e 1, p. 22).
Petitioner thereafter filed a Motion in Prohibition From Increasing
the Sentence in Conjunction with the Appellate Court Mandate.
Petition ¶ 11(c) (d/e 1); see also Exhibit to Petition (d/e 1, p. 23).
Petitioner argued that the trial court should modify Petitioner’s
sentence to include three years of mandatory supervised by giving
Petitioner a 17-year term of imprisonment plus three years of
supervised release for a total of 20 years. Otherwise, according to
Petitioner, the court was violating due process and penalizing
Petitioner for successfully pursuing his right to appeal. See Exhibit
to Petition (d/e 1, p. 24). The trial court denied Petitioner’s motion.
See Exhibit to Petition (d/1, p. 26). Petitioner appealed. That
appeal remains pending.
On October 3, 2013, Petitioner filed the § 2254 petition at
issue herein. Petitioner argues that the addition of the three-year
term of mandatory supervised release following remand from the
Page 6 of 14
appellate court increased Petitioner’s sentence without due process
of law and in violation of double jeopardy. Petition ¶ 12 (d/e 1).
In April 2014, Respondent filed a Motion to Dismiss as
Unexhausted (d/e 12) because Petitioner failed to exhaust his state
court remedies. Respondent noted that the appeal of the trial
court’s denial of Petitioner’s Motion in Prohibition From Increasing
the Sentence in Conjunction with the Appellate Court Mandate is
still pending.
In August 2014, this Court directed the parties to file
supplemental briefs in light of Carroll v. Daugherty, 764 F.3d 786
(7th Cir. 2014), which addressed and rejected the same basic issue
raised by Petitioner in this case. Respondent filed a brief arguing
that Carroll forecloses relief on Petitioner’s claim. Petitioner failed
to file a brief addressing Carroll.
II. LEGAL STANDARD
This Court’s review of state court decisions is limited by the
Antiterrorism and Effective Death Penalty Act. If a state court
adjudicated a claim on the merits, this Court can grant relief only if
the state court adjudication of the claim resulted in (1) “a decision
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that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States”; or (2) “a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1),
(d)(2). The relevant decision reviewed is the decision of the last
state court to rule on the merits of the petitioner’s claim. Coleman
v. Hardy, 690 F.3d 811, 814 (7th Cir. 2012).
III. ANALYSIS
In his Petition, Petitioner challenges the appellate court’s
decision directing the trial court to amend the judgment to add the
three-year term of supervised release. See Response to Mot. to
Dismiss (d/e 14). As noted above, Respondent moved to dismiss
the Petition on the ground that Petitioner had not exhausted his
state court remedies because Petitioner’s appeal of the denial of his
Motion in Prohibition From Increasing the Sentence in Conjunction
with the Appellate Court Mandate remains pending. Even if
Petitioner has not exhausted his state court remedies, however, this
Court may address the merits of his Petition. See 28 U.S.C. §
Page 8 of 14
2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State”). The
Court chooses to address the claim on the merits here.
Petitioner argues that the three-year term of mandatory
supervised release is void because it was not ordered by the
sentencing judge. Petitioner further argues that, if the three-year
term was imposed by operation of law, the term should be part of
the 20-year sentence imposed by the judge. Therefore, Petitioner
requests that his sentence be amended to 17 years’ imprisonment
and three years of supervised release.
Petitioner’s argument is foreclosed by the Seventh Circuit’s
decision in Carroll v. Daugherty, 764 F.3d 786. In Carroll, the
defendant was convicted and sentenced to 28 years’ imprisonment.
Ten years later, he “obtained a measure of postconviction relief” and
was sentenced to 26 years’ imprisonment. Id. at 787. The judge
did not mention mandatory supervised release at sentencing or
resentencing and the judgments did not reflect a term of mandatory
supervised release. Id.
Page 9 of 14
When the defendant later learned that he would have to serve
a term of mandatory supervised release, even though the term was
not mentioned in the judgment, he filed a § 2254 petition in the
district court. Id. The defendant argued that imposing a
punishment in excess of the punishment imposed by the judge
violated federal law. Id. The defendant asked that his 26-year
prison term be reduced to 23 years’ imprisonment and 3 years of
supervised release so that his aggregate sentence would be 26
years. Id.
The Seventh Circuit held that because the Illinois statute
made supervised release mandatory, the term was included in
the sentence by operation of law:
Because Illinois’s statute made supervised release
mandatory, the omission of supervised release from the
judgment did not make the sentence unlawful. The
Supreme Court of Illinois has held that omission of a
required term of supervised release from a sentence is
not error, because the state’s supervised-release statute
provides that “every sentence shall include as though
written therein a term [of supervised release] in addition
to the term of imprisonment. 730 ILCS 5/5-8-1(d).”
People v. McChriston, 4 N.E.3d 29, 33 (Ill. 2014)
(emphasis added).
Id. at 788-89.
Page 10 of 14
The Seventh Circuit found Hill v. Wampler, 298 U.S. 460, 464
(1936), the case cited by the defendant in that case as well as by
the Petitioner in this case, “inapposite.” Carroll, 764 F.3d at 787.
In Wampler, the United States Supreme Court held that a provision
in the judgment that was inserted by the clerk but not orally
pronounced by the judge was void. Wampler, 298 U.S. at 465 (“A
warrant of commitment departing in matter of substance from the
judgment back of it is void”).
In distinguishing Wampler, the Seventh Circuit in Carroll
focused on the fact that district judge in Wampler had the
discretion to choose whether to imprison the defendant until he
paid the fine but chose not to do so. Carroll, 764 F.3d at 788,
citing Wampler, 298 U.S. 460. The Seventh Circuit noted that,
unlike Illinois’ statute making supervised release mandatory, the
decision whether to imprison the defendant until he paid his fine
was for the judge to make, and the clerk in Wampler had no
authority to modify the sentence imposed by the judge. Id.
The Carroll court also held that the “failure to mention
supervised release in [the defendant’s] sentence did not
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deprive him of life, liberty, or property.” Id. at 790. Moreover,
the defendant did not have a constitutional right to substitute
three years of supervised release for three years of
imprisonment “just because the judge left something out of the
sentence that doesn’t have to be in it in order to authorize the
full measure of punishment that [the defendant] had been
ordered to undergo.” Id. Therefore, the petitioner was not
entitled to habeas relief.
Likewise here, although Petitioner’s sentencing judgment
does not mention mandatory supervised release, Petitioner’s
sentence included the three-year term of mandatory
supervised release by operation of law. The appellate court, by
ordering that the sentencing judge amend the judgment to
reflect the term of mandatory supervised release imposed,
merely corrected the omission. See Carroll, 764 F.3d at 790
(noting that any error from the omission of the supervisedrelease term from the judgment was harmless and had been
corrected by adding three years to the defendant’s predicted
discharge date).
Page 12 of 14
Therefore, Carroll forecloses relief on Petitioner’s habeas
claim. Petitioner cannot show that the state court
adjudication of the claim was contrary to, or involved an
unreasonable application of clearly established Federal law, as
determined by the United States Supreme Court, or that the
decision was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceedings. 28 U.S.C. § 2254(d)(1), (d)(2).
IV. CERTIFICATE OF APPEALABILITY
When the Court enters a final order adverse to the applicant,
the Court must issue or deny a certificate of appealability. See Rule
11(a), Rules Governing Section 2254 Cases in the United States
District Courts. A certificate of appealability may issue only where
the applicant makes a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial
showing exists where “reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529
Page 13 of 14
U.S. 473, 484 (2000) (quotations and citations omitted). The Court
finds no reasonable jurist would debate whether Petitioner is
entitled to habeas relief under 28 U.S.C. § 2254. Therefore, the
Court denies a certificate of appealability.
V. CONCLUSION
For the reasons stated, Petitioner’s Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody (d/e
1) is DENIED. A Certificate of Appealabilty is also DENIED.
Respondent’s Motion to Dismiss as Unexhausted (d/e 12) is
DENIED AS MOOT.
CASE CLOSED.
ENTER: October 31, 2014
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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