Blume v. IDOC

Filing 4

ORDER & Opinion dismissing the 1 Petition for Writ of Habeas Corpus With Prejudice. The Court declines to issue a Certificate of Appealability. Entered by Judge Joe Billy McDade on 4/7/2016. (RK, ilcd)

E-FILED

Thursday, 07 April, 2016 01:06:20 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JAMES BLUME,
Petitioner,
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS,

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Case No. 16-cv-1095

Respondent.

O R D E R & OPINION
This matter is before the Court on Petitioner’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), and his Motion for Leave to Proceed
in forma pauperis (Doc. 2). For the reasons stated below, Petitioner is granted leave
to proceed in forma pauperis and his Petition is dismissed with prejudice.
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner has filed a Motion for Leave to Proceed in forma pauperis
concurrently with his § 2254 petition. (Doc. 2). In his motion, he asserts that he has
no money in a checking or savings account, no assets, and must pay $400 per month
in child support for his daughter. (Id. at 2). However, he also asserts that he
receives $10.00 per month from the institution where he is presently incarcerated.
(Id. at 1). The trust fund account ledger received by the Court reflects payroll
deposits of between $10 and $15.78 each month beginning in January of 2016, and
also reflects regular deposits from an external source that range between $50 and

$100. (Doc. 3 at 2). The most recent information available to the Court shows a
balance of $16.22 as of February 25, 2016. (Id.).
Although the partial filing fee requirement outlined in 28 U.S.C. § 1915(b)(1)
does not automatically apply to habeas corpus petitions, the Court may
nevertheless use its discretion to apply the formula to determine the required fee
amount. See Longbehn v. United States, 169 F.3d 1082, 1083 (7th Cir. 1999)
(commending the discretionary application of the § 1915(b)(1) formula). Accordingly,
the Court exercises its discretion to apply the § 1915(b)(1) formula to determine
Petitioner’s ability to pay court fees. Under the formula, Petitioner is capable of
paying twenty-percent of the greater of his average monthly deposits or his average
monthly balance for the six-month period immediately preceding the filing of the
action. 28 U.S.C. § 1915(b)(1). The ledger that Petitioner has provided begins
November 24, 2015 and only runs through March 2, 2016, so the Court is not able to
calculate either over the preceding six months. Over the four months covered by
Petitioner’s ledger, his average monthly deposit has been $81.89, and his average
balance at the close of each month has been $71.95. Twenty-percent of Petitioner’s
average monthly deposit is $16.38 and twenty-percent of his average monthly
balance is $14.39.
The Court grants Petitioner’s request to proceed without prepayment of the
applicable filing fee and has reviewed his Petition prior to receiving the applicable
fee. Nonetheless, under the § 1915(b)(1) formula, Petitioner must still pay what he
is capable of paying, which in this case seems to exceed the full filing fee amount of
$5.00 dictated by 28 U.S.C. § 1914(a). See Longbehn, 169 F3d at 1083 (“All that

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permission to proceed in forma pauperis has ever meant is that the fee not be prepaid.”). Here, because Petitioner’s trust fund balance presently exceeds $5.00, he
must forward the full amount to the Clerk of this Court.
28 U.S.C. § 2254 PETITION
Rule 4 of the Rules Governing Section 2254 Cases in the District Courts
requires the district court to “promptly examine” a new § 2254 petition and dismiss
it “[i]f it plainly appears . . . that the petitioner is not entitled to relief in the district
court.” The Court has examined the Petition, and finds that Petitioner is plainly not
entitled to habeas corpus relief.
Petitioner is currently an inmate at the Illinois River Correctional Center,
where he is serving an eighteen-month sentence in Illinois state prison for violating
an order of protection. (Doc. 1 at 1). In this Petition, he challenges the fact that he
has not been paroled.1 He states, “I have not been paroled by the Dept of
Corrections because Joseph Pate, a parole officer, routinely denies parole to the
Field Services Officer at IRCC. It has happened 3 times/Plaintiff does not believe it
will change.” (Id. at 5). He states that he was denied parole for a fourth time on
March 15, 2016. (Id.). As a second ground, Petitioner has stated, “IDOC is keeping
me in prison because Joseph Pate, the parole officer refuses to approve my release.”
(Id. at 7).

Petitioner has listed “IDOC” as the Respondent in the case. The Illinois
Department of Corrections is not the proper respondent. The Petition “must name
as respondent the state officer who has custody.” Rule 2 of the Rules Governing
Section 2254 Cases in the District Courts. In this case, that would be the warden of
the Illinois River Correctional Center.
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The Court construes Petitioner’s first ground for relief as a claim that the
Illinois Department of Corrections denied him due process of law when it refused to
parole him.2 This allegations fails to state a claim under § 2254. See Hyche v.
Chandler, 299 F. App’x. 583 (7th Cir. 2008); Heidelberg v. Ill. Prisoner Review Bd.,
163 F.3d 1025, 1027 (7th Cir. 1998). “There is no constitutional or inherent right of
a convicted person to be conditionally released before the expiration of a valid
sentence.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex,
442 U.S. 1, 7 (1979). However, states may create a liberty interest in parole, or early
release, “if its parole system requires release whenever a parole board or similar
authority determines that the necessary prerequisites exist.” Heidelberg, 163 F.3d
at 1026 (citing Board of Pardons v. Allen, 482 U.S. 369, 376 (1987)). The Illinois
parole system is “completely discretionary” and does not mandate parole. Id. at
1027 (citing Hanrahan v. Williams, 673 N.E.2d 251, 255 (Ill. 1996)). As such,
“Illinois prisoners have no entitlement to parole, and a hope to be released on parole
in a discretionary system does not create a protected ‘liberty’ or ‘property’ interest
under the Fourteenth Amendment.” Hyche, 299 F. App’x at 584. This ground for
relief is dismissed with prejudice.
Petitioner’s second ground is simply a restatement of his first ground. He
writes, “IDOC is keeping me in prison because Joseph Pate, the parole officer
refuses to approve my release.” It must be dismissed with prejudice as well, for the
same reasons discussed above.

Note that the Illinois Prisoner Review Board is the entity actually responsible for
paroling eligible inmates. The Prison Review Board is independent from the Illinois
Department of Corrections. See 730 Ill Comp. Stat. §§ 5/3-3-1; 5/3-3-2.
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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court
“must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Under 28 U.S.C. § 2253(c)(1), a petitioner may only
appeal from the court’s judgment in his habeas case if he obtains a certificate of
appealability. A certificate of appealability may only be issued where the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This requirement has been interpreted by the Supreme Court to mean
that an applicant must show that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). A petitioner need not show that the appeal will succeed, but he
must show “‘something more than the absence of frivolity’ or the existence of mere
‘good faith’” on his part. Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). If the district court denies the request,
a petitioner may request that a circuit judge issue the certificate. Fed. R. App. P.
22(b)(1).
Based on the record before it, the Court cannot find that reasonable jurists
would debate that Petitioner’s claims are meritless. See Heidelberg, 163 F.3d at
1027 (denying request for a certificate of appealability on refusal to parole claim).
Accordingly, a certificate of appealability is denied.
CONCLUSION
IT IS THEREFORE ORDERED that Petitioner’s Motion for Leave to Proceed
in forma pauperis (Doc. 2) is GRANTED. Petitioner SHALL pay the full filing fee of

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$5.00. If, at the time the trust fund department at Petitioner’s institution receives
this Order, Petitioner does not have that much money in his account, the trust fund
department shall send 20% of Petitioner’s current balance. Thereafter, each time
the balance in Petitioner’s account exceeds $10.00, Petitioner’s custodian shall
forward to the Clerk, in monthly payments, 20% of the preceding month’s income
credited to Petitioner’s account until the $5.00 filing fee is paid.
Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(Doc. 1) is DISMISSED WITH PREJUDICE. The Court declines to issue a
Certificate of Appealability. CASE TERMINATED.

Entered this 7th day of April, 2016.

s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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